When can a character be protected
by copyright? Over the years, it has been an interesting question for courts to
address. In early cases involving Superman, the court found the character was
sufficiently different from stock Hercules-type characters to warrant copyright
protection.[1] A more
recent example was addressed in Gaiman v.
McFarlane (briefly discussed here); the Seventh Circuit looked closely at
the Cogliostro character to determine if the character was more than a stock
wizened, wise wino.[2]
In
2015, the Ninth Circuit Court of Appeals revisited the question of what
characters can be protected by copyright in DC
Comics v. Towle.[3] At
issue was whether the Batmobile could be considered a character entitled to
copyright protection.[4]
Mark
Towle made and sold replicas of the Batmobiles from the Adam West TV show and
the Michael Keaton movie.[5]
They were near-exact replicas, and he also advertised the cars as the Batmobile
and used bat motifs throughout the vehicles.[6] In
2011, DC brought a lawsuit against him alleging copyright infringement,
trademark infringement, and other causes of action.[7] The
district court found Towle’s actions in reproducing the Batmobile constituted
copyright infringement.[8]
On
appeal, the Ninth Circuit upheld the lower court’s decision.[9]
The central part of the Court’s decision revolved around how “‘sufficiently
distinctive’” a character must be in order to receive copyright protection and
whether the Batmobile met the requirement.[10] In
analyzing the Batmobile, the court found (1) “it has ‘physical as well as
conceptual qualities,’ and is thus not a mere literary character[,]”[11]
(2) it is “recognizable as the same character whenever it appears” because it
is almost always high-tech, has bat-like features, and has consistent features,
and character traits,[12]
and (3) it’s “‘especially distinctive’ and contains unique elements of
expression” because of its sidekick-status, character traits, physical
characteristics, and recognizable name.[13]
Because the Batmobile satisfied the court’s three-part test, it ruled the Batmobile
to be an “‘especially distinctive’ character entitled to copyright protection.”[14]
Because the Batmobile is entitled to copyright protection, Towle’s faithful
reproductions of the Batmobile constituted copyright infringement.
The
court’s decision further paves the way for copyright protection to extend to
non-traditional “characters” in comic books so long as they meet the criteria
set forth by the court. It’s good to keep this case in mind as you create your
work and realize that copyright protection can apply to inanimate, side
“characters” in addition to your main creations.
[1] See Detective Comics v. Bruns
Publications, 111 F.2d 432 (2nd Cir. 1940).
[2] See Gaiman v. McFarlane, 360 F.3d 644
(7th Cir. 2004).
[3] 802 F.3d
1012.
[4] DC Comics, 802 F.3d at 1019.
[5] Id. at 1017.
[6] Id.
[7] Id.
[8] Id. at 1017-18.
[9] Id. at 1027.
[10] Id. at 1019.
[11] Id. at 1021 (citations omitted).
[12] Id. at 1021-22.
[13] Id. at 1022.
[14] Id. at 1023.
