Creative People Beware: Holy Copyright Infringement, Batman!

The Batmobile just lost its legal wheels. DC Comics, the publisher and copyright owner of the Batman comic books, recently won a victory in the U.S. Court of Appeals for the Ninth Circuit, which ruled that the owner of a business called Gotham Garage had infringed DC Comics’ copyright by making and selling working replicas of the Batmobile, as it appeared in the Batman television series and one of the Batman movies, which were created by licensees of DC Comics.

This decision has ramifications for many people who create material of any kind, not just comic book or other characters, which is subject to copyright protection. If you are involved in any aspect of creating or using copyrightable material, contact Kilgore & Kilgore so our copyright attorneys can evaluate your situation and advise you on the best way to protect your creations.

In order to arrive at its decision, the three-judge panel had to first determine whether the Batmobile was entitled to copyright protection at all. If copyright protection was deemed available, the second issue was whether DC Comics could enforce its copyright against someone who had not copied the Batmobile as it appeared in the comic books created by DC Comics. The Batmobile at the heart of this case was a copy (a derivative) of the Batmobile that appeared on TV and in the movie created by licensees of DC Comics.

The first issue is an interesting and quirky aspect of copyright laws with limited practical applications. Is a character in a comic book, television series, movie, etc., subject to copyright protection? If so, what constitutes a protected character? The second issue, while much less sexy on its face, actually impacts a large percentage of people who produce and then license copyrightable material of any kind. The crux of the issue is whether the creator of the original material can enforce its copyright against someone copying a derivative product created by a licensee.

With respect to the first issue, the Ninth Circuit Court established a three-part test for determining whether copyright protection is available to a character in a comic book, television show, or movie.

  • First, the character must generally have “physical as well as conceptual qualities.”
  • Second, the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears.
  • Third, the character must be “especially distinctive” and “contain some unique elements of expression.”

The court ruled that even when a character lacks sentient attributes and does not speak; it can be a protectable character if it meets that three-part standard. Applying this standard to the case at hand, the court determined that the Batmobile met all three tests and qualified for copyright protection.

With respect to the second issue, the court began by noting, very importantly, that the license agreements between DC Comics and its licensees (who produced the relevant television series and movie) provided that DC Comics retained all rights not specifically granted to the licensees. Further, the court noted that its reserved rights included all rights of publication and exclusive merchandising rights to all products manufactured or distributed under the name of any character in the Batman comic books. The court noted that DC Comics had not transferred its underlying rights to the Batmobile character.

In its legal analysis, the court stated that when a copyright owner such as DC Comics authorizes a licensee to prepare a derivative work, the owner of the derivative retains a copyright in the derivative work prepared by the licensee with respect to all of the elements that the derivative creator drew from the underlying work. There was one exception; if the underlying rights had been transferred by agreement, the material copied by Gotham Garage was derived from a copyrighted underlying work; this constituted an infringement of DC Comics’ underlying work. This decision was made despite the fact that Gotham Garage did not copy directly from the underlying work, but rather indirectly via the licensee’s derivative work. As such, DC Comics was entitled to sue Gotham Garage for copyright infringement.

From the above paragraph, one can see how important this decision is to those who create copyrightable material. What it means is that if you license your copyrighted material and allow for derivative works in a properly drafted and negotiated license agreement, you still have can protect your copyright against infringement if the derivative works are illegally copied. Copyright attorneys are critical to protecting someone’s original and derived work.

For example, if you wrote a song and licensed that song, along with derivative rights, to a performer who then modified the song and then released it to the public, you could still sue anyone who copied the new version of that song. If you wrote an educational software program for pre-teens, and licensed it with derivative rights to someone who turned it into a program for teens, you could still sue somebody who copied the new program. In each case, you have to make sure your license agreement is properly drafted and negotiated so that you don’t inadvertently give away your underlying rights and lose the ability to protect your copyright against infringement.

What all of this means is that if you are creating, licensing or copying material that is or may be subject to copyright protection, you need advice from an experienced intellectual property attorney such as those on our team at Kilgore & Kilgore. To learn more about copyright infringement, click here copyright Infringement .Contact Kilgore & Kilgore through our website, click here free consultation. Or, call us at (214) 969-9099 for a free review of the facts of your case with an intellectual property law attorney. # # #

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