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Transportation Technology

The Copyright Battle Over Custom-Built Batmobiles 194

Posted by samzenpus
from the lost-their-wheels dept.
Hugh Pickens writes writes "Eriq Gardner writes that Warner Brothers is suing California resident Mark Towle, a specialist in customizing replicas of automobiles featured in films and TV shows, for selling replicas of automobiles from the 1960s ABC series Batman by arguing that copyright protection extends to the overall look and feel of the Batmobile. The case hinges on what exactly is a Batmobile — an automobile or a piece of intellectual property? Warner attorney J. Andrew Coombs argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning and that by selling an unauthorized replica, Towle is likely to confuse consumers about whether the cars are DC products are not. Towle's attorney Larry Zerner, argues that automobiles aren't copyrightable. 'It is black letter law that useful articles, such as automobiles, do not qualify as "sculptural works" and are thus not eligible for copyright protection,' writes Zerner adding that a decision to affirm copyright elements of automotive design features could be exploited by automobile manufacturers. 'The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.'"
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The Copyright Battle Over Custom-Built Batmobiles

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  • As an art student... (Score:5, Informative)

    by SeaFox (739806) on Thursday January 03, 2013 @09:13AM (#42460871)

    I would argue the automobile is a sculpture, and therefore protect-able from exact replication using blueprints/tooling. However, like any work of art, it is an interpretation by the artist. If I make a Batmobile-looking car I am making what my interpretation of the Batmobile is, it's not the same as making a Batmobile. As long as I do not sell the item claiming it is, in fact, a real Batmobile or use trademarked brands on the car or in it's promotion then I should be okay.

    • by CAIMLAS (41445) on Thursday January 03, 2013 @09:19AM (#42460905) Homepage

      Vehicles from the 1940s through 1970s, and into the 80s? Sure they are - or can be, at least.

      But pretty much every automobile today is just a stylized wind tunnel tested form. They're somewhat more unique than the crap from about a decade ago and have unique bumpers, grills, etc. but for the most part there's little to distinguish them from each other, with rare exception. VW is making cars that look like Porche; BMW is making cars that look like Cadillac; and so on.

      The original Batmobile (from the 60s show)? I'm sorry, but even as a kid it was pretty obvious there wasn't much distinctive about the car. They put some stylized fins on it, painted it like his underwear, and put a cockpit and jet propulsion on it to say "look, it goes fast". Sorry. That's like saying an iPhone is art: how, exactly, does it deviate from commonly expected definitions of whatever it serves functionally? It doesn't.

      • by h4rr4r (612664)

        I wish you were correct. They only really decent wind tunnel designs I ever see are on either hybrids or supercars which is another wind tunnel design for another purpose.

        Porsche is a VW brand, they share many platforms. Cadillac is the one ripping off BMW. They have been trying to fight the 3 and 5 series for years.

        • by drinkypoo (153816)

          I wish you were correct. They only really decent wind tunnel designs I ever see are on either hybrids or supercars which is another wind tunnel design for another purpose.

          The Nissan 240SX, introduced in 1989, has a Cd of 0.26, which makes it competitive with hybrids. They get 30 mpg on the highway in stock form, without driving them especially carefully, and they have an extremely primitive engine by modern standards. It's a truck motor basically, but Nissan used it in everything. There's a single cam and a twin cam and the difference is negligible and it's cheaper to get a reground cam when you only need one. One of the best cars ever made.

          • by h4rr4r (612664)

            I agree, but I was looking at cars made this century really.

            Cars in my part of the world are pretty rusty by 10 years old and gone by 20 if they are daily drivers. The

          • fueleconomy.gov says you're exaggerating. The original EPA sticker for the 1989 240SX was for 26MPG highway with the manual transmission. The automatic was 25MPG. 30MPG might be doable if you drive very carefull.

            • by drinkypoo (153816)

              Having owned one with the manual transmission and achieved real-world highway mileage of 30 mpg without doing anything special and on H-rated tires (well-inflated though) I call shenanigans. Mine had a quarter-million miles on it, too. And the automatic has a lockup torque converter and the same final ratio, so if you're not over-accelerating then there's no reason why it should suffer much, either, but I only owned an automatic for a moment and sold it pretty quickly.

      • by rossdee (243626)

        "VW is making cars that look like Porche;"

        I wonder who designed the original VW - the one with the rear mounter horizontally opposed air cooled engine...

    • by dugjohnson (920519) on Thursday January 03, 2013 @09:25AM (#42460927) Homepage
      An art student AND a lawyer...that is not a combination you see every day.
      • by SirGarlon (845873) on Thursday January 03, 2013 @09:34AM (#42460993)

        Your insinuation that only lawyers are entitled to an opinion on the application of copyright is misguided. Understanding copyright is everybody's business. Unless you never write a line of code or post to a blog or Twitter, copyright's ever-widening reach ensnares you, too. Know the basics, or risk finding yourself on the wrong end of a lawsuit.

        Obviously, the more financial stake you have in the output of your keyboard, the more research and expert consultation you'll require.

        If you disagree with grandparent, argue on the merits of his/her interpretation.

        • by dugjohnson (920519) on Thursday January 03, 2013 @09:42AM (#42461065) Homepage
          I actually CAN'T argue with his interpretation, since IANAL. He contends that an automobile is sculpture. There is, as I understand it, a large body of law that would say that it is not. I could argue that there is more of a correlation between fashion and the styling of automobiles...fashion which is also not copyrightable for some of the same reasons.
          I DO understand copyright, in so far as it affects my life as a writer of software (it does) but in this case, the bat-mo-people are arguing trademark with a crossover into copyright and derivative works.
          I suppose I could have just said, "No, your interpretation is probably wrong", but this is /.
          • by SirGarlon (845873)

            the bat-mo-people are arguing trademark with a crossover into copyright and derivative works.

            That's what I think, too. Batmobile should be a trademark issue and the copyright argument seems like an unwarranted stretch. I'm kind of glad I'm not a lawyer, since I don't need to attempt to persuade a judge that up is down and black is white.

            • I'm kind of glad I'm not a lawyer, since I don't need to attempt to persuade a judge that up is down and black is white.

              I agree. MFWAL (My father was a lawyer) and he was paid to defend people, whether what they did was right or wrong...and he was very good at his job. So if a lawyer is paid to argue that up is down and black is white, that the lawyer will do.
              My father didn't always win (USUALLY, but not always) and I can remember him talking to a con in prison on the phone...very pleasant, cordial, helpful, polite. I questioned him about why he was so nice to the guy, who really was "not a nice person". His reply..."Every

      • by loufoque (1400831)

        Nemo censetur legem ignorare.

        Of course, this only really applies to civil law systems.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      As an art student, your opinion is irrelevant. A car is not a work of art. This is not subject to interpretation: what is and what is not a work of art is strictly defined by law. Otherwise, the law would be ripe for abuse, since any product of human manufacture can be argued to include some form of human expression and thus could be interpreted as art. Art has special protection by copyright due to special-purpose laws and it is very important to clearly define what is and what is not covered by them, rega

    • If you're going to compare it to sculpture, then you should consider that artist Jeff Koons was successfully sued [wikipedia.org] for creating a sculpture of a scene depicted in someone else's photograph.
    • by MightyYar (622222)

      No. To copyright an exact replica would mean no more 3rd party suppliers. I don't see how that benefits society in the least.

  • by Jetra (2622687) on Thursday January 03, 2013 @09:26AM (#42460943)
    our childhood.
    • if your childhood isn't over, how exactly is your childhood ruined because you can't have everything your greedy little heart desires?

      • I think he's trying to say that by suing this guy, he'll never be able to own a 1960 Batmobile. Which is ruining his childhood (but maybe you did undestand that, and I'm not understanding why you're upset).

        I want a Batmobile, but I do think maybe it should be be able to be copyrighted. I'm really torn on this one. I don't agree with copyright law, but I think this one may be a good one.

        • by Jetra (2622687)
          ?. I grew up with Batman The Animated Series (1990s, which I believe is far superior to any other), but I'm not wanting the batmobile. What I'm saying is that companies are bent on making sure they own every single piece that belongs to them so they can make sure we pay royalities out the ass.
        • I think he's trying to say that by suing this guy, he'll never be able to own a 1960 Batmobile. Which is ruining his childhood (but maybe you did undestand that, and I'm not understanding why you're upset).

          No, I didn't understand that - hence my question. How, exactly, is his childhood "ruined" because he can't have a shiny thing?

          I want a Batmobile, but I do think maybe it should be be able to be copyrighted. I'm really torn on this one. I don't agree with copyright law, but I think this one may be

  • Warner attorney J. Andrew Coombs argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning

    but

    Towle's attorney Larry Zerner, argues that automobiles aren't copyrightable.

    Since something need not be capable of protection by copyright to be capable of protection by a trade mark (a single word, for example) and since something need not be a trade mark to be eligible for copyright protection (this eliminate pretty much everything which is protectable by copyright today), Zerner's statement may be true as a matter of law, but it does not address the Warner's claim.

  • IANAL, but even fro ma practical standpoint... I see it being fuzzy.

    I imagine it falls somewhere between kit-cars and merchandise. Also, I imagine the Batman Logo would hurt it. If it had THAT, then DC would tear them a new one. Without it? Hard to say.

    For example, let's say you start selling sculptures of model X-Wings / Millenium Falcons / Enterprises / Battlestars / etc. without first getting permission / approval / licenses. Well, you'd be violating a bunch of copyrights / trademarks / etc. and wou

  • .... who thought this was going to be about BeOS?

  • by paiute (550198) on Thursday January 03, 2013 @09:50AM (#42461131)
    Cam Corvette, charismatic leader
    Johnny Pinto, able to burst into flame
    Suzy Smartcar, tiny but strong
    and of course, The VW Thing
    • by Phrogman (80473)

      I'll just wipe up this coffee now :P

      As an aside, there is a guy who parks in front of my apartment building who drives a VW Thing. One of the more ugly vehicles of course, but definitely distinctive.

      • by macs4all (973270)

        I'll just wipe up this coffee now :P

        As an aside, there is a guy who parks in front of my apartment building who drives a VW Thing. One of the more ugly vehicles of course, but definitely distinctive.

        It is simply a WWII Nazi Military Jeep. Not really changed at all.

        Now, does this count as a "Godwin" post?

  • by Stormbringer (3643) on Thursday January 03, 2013 @09:56AM (#42461177)

    By the same argument, the studios like Warner are liable for every time they depict an existing vehicle. Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang? How about some guy's tricked-out bike? And they've got deeper pockets to hit than some guy in a garage.

    • by k6mfw (1182893)

      Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang?

      I've seen programs, i.e. Mythbusters, fuzz out the nameplates of cars. In regards to studios such as Warner, I think they do want to open this can of worms. They seem to do more stuff with lawyers instead of stuff with writers and directors (actors go into politics) so whether it is beneficial or not, they will dive into copyright battles.

      Hey, we now have car analogy such as what AC posted earlier: Ferrari Man and Toyota Boy. And a top 5 rated comment by paiute, "Working on the new Fantastic Four"

    • by jonbryce (703250)

      I think you will find that car manufacturers want their cars to appear in movies, and probably pay the studios to include them, or at least give them the cars for free or at a reduced price so that they will use them.

  • by Hentes (2461350)

    It's not like Warner is selling their own cars these guys compete with. What's the point of pissing off your fanbase?

    • It's not like Warner is selling their own cars these guys compete with. What's the point of pissing off your fanbase?

      They have to protect their property somewhat. If the car has the Batman logo, then they might have more of a leg to stand on. DC owns the Batman brand, letting someone (A) profit from it without their cut or consent and (B) potentially DAMAGE (or at the least dilute) the brand would hurt their bottom line.

      Let's say they shrug their shoulders and say "have at it" like some fans want. Where does it end? I'm not talking about fan fiction and stuff, but for-profit stuff.

      Let's take an EXTREME, let's say they

      • by h4rr4r (612664)

        Toyota accelerator fiasco? Was that not found to be oldsters who can't tell brake from gas?

        Bring back 3 pedals, that would sort this out.

        • Toyota accelerator fiasco? Was that not found to be oldsters who can't tell brake from gas?

          Bring back 3 pedals, that would sort this out.

          No, a few years ago Toyota had an actual issue that was perhaps blown out of proportion, but it existed in some rare cars. I forget if it was a software glitch or some bad parts.

          Accelerators are electronic / computerized now. It USED to be, you pushed the accelerator, which pulled a cable, which pulled a widget that controls the throttle. Now it's computerized: so the pedals now send a signal to a computer that says "He's pushing it this hard" and the computer says "OK, let's adjust the air/fuel mixture

          • by h4rr4r (612664)

            I have had the old mechanical ones stick. Flooring it was how I got it unstuck. Since I had 3 pedals I could have always held down the clutch. Which should always mean no power gets to the wheels, of course a slushbox can be shifted into neutral as well, but no one seems to know that.

            • With the electronics, it wasn't a problem of something getting physically stuck but a sensor sending faulty data regardless of the position of the pedal, or the software just completely putzing up. Supposedly even flooring it wouldn't "reset" the issue. Think frozen computer... clicking erratically won't fix the issue. In my case, the sensor was faulty and would occasionally just stop reading input from the pedal at all until I turned off the car (think "reboot").

              But yes, my first thought would be to thr

        • by macs4all (973270)

          Toyota accelerator fiasco? Was that not found to be oldsters who can't tell brake from gas?

          Bring back 3 pedals, that would sort this out.

          Not after Steve Wozniak demonstrated a repeatable sequence of control "gestures" involving, IIRC, the Cruise Control that would always cause it to happen...

          • by h4rr4r (612664)

            I believe that was a different issue than the one spoken about in the stuck accelerator fiasco.

            Not a lot of people are using cruise control in town.

      • Did you ever stop to think that maybe Batman should be in the Public Domain by now, rendering all of this moot?
        • Did you ever stop to think that maybe Batman should be in the Public Domain by now, rendering all of this moot?

          I'd considered RECENTLY as I was having a debate about the whole "Disney" thing and how they pretty much took control of a lot of old content. My position is more of a personal preference since (A) IANAL and (B) the law is on DC's side about not releasing Batman to Public Domain.

          I think I'm OK with a company holding the rights AS LONG AS they are actively developing it. In the case of Batman: there are multiple comics out each month that continue and expand the story. They've branched off with Batgirl, B

    • by Bucc5062 (856482)

      Because in this new utopian fascist state, meglomanical CEOs don't get a rats ass about fanbase, people, or common sense. They care about power and the ability to project it. They don't even consider the ramifications (mentioned in other posts), but just for what *they* get out of the struggle. Business is a necessary evil, but sadly in the past few decades Evil has been more the modis operendi.

      Though not a Marxist myself, I think he was on to something when he said Capitalists will gladly sell the rope

  • by Andy_R (114137) on Thursday January 03, 2013 @10:09AM (#42461289) Homepage Journal

    If this lawsuit does establish a new intellectual property right, Warner could be in big trouble.

    The 1966 Batmobile is a modified Lincoln Futura concept car from 1955. As this is a brand new type of property right, it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company. If they win, Warner could not stop clones, as Ford would be the rights holder, not Warner... and Ford would be able to bill Warner for the use of their 'sculpture' in all the toys, films, TV shows that have used it over the years.

    • by westlake (615356)

      it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company.

      The thousands of parts scavenged from the plastic model kits of the era are not the same thing as the props built for Star Wars.

      Barris was trying to get Hollywood's attention with the Futura, but aside from "It Started With a Kiss" in 1959, the Futura had been languishing in his Hollywood shop for several years.

      In December 1965 Ford sold the Futura to Barris; despite its huge original production costs --- the equivalent of approximately US$2 million in 2009 ---- Barris was able to buy the vehicle for the nominal sum of $1.00 and "other valuable consideration".

      Batmobile [wikipedia.org]

      George Barris [wikipedia.org] has been customizing vehicles for private clients, film and television productions since the late 1940s --- and his style is instantly recognizable.

    • by macs4all (973270)

      If this lawsuit does establish a new intellectual property right, Warner could be in big trouble.

      The 1966 Batmobile is a modified Lincoln Futura concept car from 1955. As this is a brand new type of property right, it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company. If they win, Warner could not stop clones, as Ford would be the rights holder, not Warner... and Ford would be able to bill Warner for the use of their 'sculpture' in all the toys, films, TV shows that have used it over the years.

      What's strange is that Barris retained ownership of the Batmobile, and leased it to Warner Brothers.

      So either what I read was incorrect, or Barris sold the car to Warner or DC at some point; or the Plaintiff has no Standing to sue whatsoever (assuming the replica doesn't have a Batman logo on it. I would argue even calling it a "Batmobile" (which is probably Barris' term) wouldn't be enough to confer standing to sue).

    • by TheSpoom (715771)

      ...and Ford would be able to bill Warner for the use of their 'sculpture' in all the toys, films, TV shows that have used it over the years.

      I doubt it. [wikipedia.org]

  • by mbone (558574) on Thursday January 03, 2013 @10:16AM (#42461351)

    If you read the article, this is basically a trademark battle, with some copyright FUD thrown in for good measure.

    Trademark is basically about fraud - would a reasonable person think that they have bought an official Batman car, or just a unofficial replica? So, Warner may or may not have a case, depending on how these are marketed and sold. However, what I think Warner is really trying to do is to spend Mr. Towle under the table, and they are likely to be quite successful in that.

    • If you read the article, this is basically a trademark battle, with some copyright FUD thrown in for good measure.

      Trademark is basically about fraud - would a reasonable person think that they have bought an official Batman car, or just a unofficial replica? So, Warner may or may not have a case, depending on how these are marketed and sold. However, what I think Warner is really trying to do is to spend Mr. Towle under the table, and they are likely to be quite successful in that.

      I would hazard to guess that certain items are protected - the distinctive Batman emblems, for example and many be the paint scheme - assuming they were trademarked. An interesting comparison is the Cobra replicas - you can copy the original AC shape but can't use Cobra emblems (unless you buy them from the trademark owner).

  • Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.

    Hollywood will love it when they have to pay a licensing fee for every car in every shot in a movie - retroactively of course.

    And then there's this from TFS:

    attorney J. Andrew Coombs argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning...

    Trademarks have to registered with the PTO or they do not exist - looks to me like he's

  • DC Comics currently licenses to Fiberglass Freaks themanufacture and customization of full-size automobiles into the Batmobile Vehicles,featuring the DC Comics Trademarks.

    Maybe DC wants to protect a revenue stream from licensing the Batmobile for full sized vehicles?

  • or put a bumper sticker on it... And then it's your interpretation of a Batmobile, and it's a new work of art, and it's copyrightable by you under fair use laws.

    Or, every automaker can sue Warner Brothers every time they use a car in a movie. It works both ways.

    Funny story BTW, about Herbie the Love Bug... VW initially didn't *want* Disney to use a beetle in the movie. They thought it was going to hurt sales. Instead, it had the opposite effect. When the "remake" came around with Lindsay Lohan, VW was all f

  • How has this not come up before, given the decades' worth of fan-made movie and television prop replicas being sold at conventions and websites around the world? I can remember seeing Star Trek props made from the "original molds" on dealer tables twenty-five years ago - has Paramount been going after these folks for copyright/trademark violations all along? Or is this case different because it's a car?
  • I'm sure the copyright has expired on that opera.
  • by Dogtanian (588974) on Thursday January 03, 2013 @10:58AM (#42461775) Homepage
    If they're going to print comic books, they'll need to be *about* the sort of character that'd drive those cars.

    The Vauxhall Astra [wikipedia.org] could get Thirtysomething-married-with-two-young-children-in-the-back-seats-Man.
    The Ford Transit [wikipedia.org] gets White Van Man [wikipedia.org], obviously.
    With its contrived, overstyled appearance, the Nissan Juke [wikipedia.org] looks like that puppet from the Saw films [wikipedia.org], though in reality our hero^w villian driving it would be Twenty-or-Thirtysomething-twonk-with-a-moderate-amount-of-disposable-income-to-spend-on-crappy-"lifestyle-oriented"-pretend-4x4-toy-vehicles-demographic-Man (or -Woman).

    The possibilities are endless, problem is that 99% of cars will look like they should be driven by Boring-Stuffed-Shirt-Man or Dull-Suburban-Mother-Woman (er, because in reality... they are). ;-)
  • There have been more Batmobile designs, in the Movies and the comics than there have been versions of the USS Enterprise

    I did see the one from the Adam West TV series at ValleyCon a few years ago.

  • [from The Fine Summary]The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.

    Warner Bros and DC Comics have little to fear if Ford, Ferrari, Chevrolet, or Hyundai start publishing comic books. But if Honda or Toyota go this route, well, that would be very hard to compete with. No matter how many Captain Vanilla look alikes the USA, Korea, or Europe produce, none of them would stand a chance against the Sailor Moons of the Japanese manga artists.

    It would be the Stay Puft Boy against Godzilla in Willy Wonka's factory. It would be a disturbance of the Farce, like tens of thousands of

  • I seem to recall that various companies which customized Mustangs to look like Elinor from the original Gone in Sixty Seconds were successfully sued in the past.

    Maybe is was because they actually marketed it as "Elinor", and I think put the name somewhere on the vehicle, that cinched that case. Not sure.

  • Are they asserting copyright? That is very strange. There are things called "design patent". Essentially it patents a "form" of an object. Like a particular floral pattern on a door knob or something. It does not prevent others from making door knobs. Just gives the rights holder the right to prevent others from making an exact replica or something very close. Very heavily used in garment industry, and chinaware cutlery side of things. I am surprised the comics is going after copyright claims.
  • Did anyone notice the legal document has wrong dates? Bottom of the first page: "This motion is made following the L.R. 7-3 conference of counsel which took place on August 21, 2013"
  • Holy Nuisance Suits!! POW!! Patent Troll uses trademark law and patent disputes like kryptonite to disarm our Hero, CRASH!! leaving Bruce Wayne naked and barefoot. BAM!! POW!! Tune in next week, same [Delete]-time, same [Delete]-channel!!

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