
By Jeff Trexler
DC Comics recently prevailed in arguing that the Batmobile is subject to copyright. But was the issue ever really in doubt? Below the jump, we?ll take a closer look at how copyright protects comic book designs ? and how Time Warner almost put all of DC?s superheroes in the public domain.
The case that has received so much attention is DC Comics v. Mark Towle, in which DC is suing to stop Towle?s Gotham Garage from selling unlicensed replicas of the 1966 Batmobile. According to the Hollywood Reporter and any number of media outlets that have followed in its wake, the copyrightability of the Batmobile and other comic book designs is an unresolved and highly controverted question.
Could the Batman uniform, the Batcave and other designs based on comic books actually be in the public domain?
The Batmobile Case
The short answer is no. Far from being an unprecedented milestone, the recent ruling in the Towle case was a slam dunk?-that is to say, the defendant?s argument was easy to dismiss because the legal principles at stake are so well established.
DC?s copyright claim on the Batmobile ? like the typical comic book design case ? primarily rests on the issue of derivative works. DC owns the copyright in the Batman character and related Batman material, thus giving it the exclusive right to license works based on the Batman universe.
The general rule governing a case such as this is that copyright protection of two-dimensional material extends to a three-dimensional adaptation. Thus, a court found artist Jeff Koons liable for infringing the copyright on a photograph of puppies when he made a sculpture expressly based on this picture.
However, there is an exception to this general rule. The existence of a two-dimensional copyrighted image does not automatically provide protection for a three-dimensional expression when the material in question is merely a useful article, such as clothing or the standard profile of a car.
That said, as the judge in the Towle case notes, the law has long recognized copyright protection for physically or conceptually separable of protectable design elements part of a useful article, including a car. Even if the essential car-ness is unprotected, distinct non-utilitarian features such as those found on the Batmobile are clearly copyrightable. As the contract authorizing the design and construction of the 1966 Batmobile indicates, the TV version incorporated distinctive design elements derived from copyrighted Batman material owned by DC Comics.
The Bat-costume and the Batcave
Similar principles apply to the copyrightability of Batman?s costume, designs based on equipment in the Batcave, and other adaptations of copyrighted superhero material. Attempting to sell an unlicensed Batman costume or a playset with copyrighted drawings or identifiable three-dimensional Batman elements would be a slam dunk case of infringement.
Consider, for instance, the copyrightable elements of the Batman costume that are physically or conceptually separable from the utilitarian body covering ? the Bat graphic, the glove adornment, the cowl, the bat-wing cape, arguably even a non-functioning expression of the utility belt (functional only in the imagination) are copyrightable elements that should strike fear in the hearts of anyone selling an unauthorized copy.
But what about cases that some say show the copyrightability of such designs to be be unresolved? A closer look reveals that these cases are not substantially problematic. One federal appeals case, involving a dispute over costumes with animal heads, did not involve derivative material; moreover, the court found a legal basis for extending copyright protection to the distinct design elements separable from the underlying utilitarian garment. A similar conclusion was reached in a recent federal appeals decision in another circuit, finding that costumes based on branded cartoon characters were owned by the corporate holders of the copyrights.
Another case ? settled in favor of the copyright holder? involved knockoffs of the Power Rangers costumes. This too was a clear call for the copyright owner. Even if we set aside trademark issues, the derivative works doctrine and the separability of certain aspects of the helmet design, courts have also recognized the copyrightability of two-dimensional textile prints on otherwise utilitarian garments. While a basic jumpsuit may not be protectable, the distinct pattern imprinted on a Power Rangers jumpsuit is arguably protected against unauthorized copying.
The furniture case cited to raise questions about the Batcave copyright is likewise distinguishable. The question presented was whether the unauthorized use of images of furniture to help sell an apartment on TV constitutes copyright infringement. The court in this case recognized that furniture, like cars, can have separable design elements protected by copyright, but found that the furniture in question was purely utilitarian.
While this finding may seem a bit harsh given the custom design, it makes sense in the broader context of the case. A finding in favor of the designer would forced the court to address a controversial issue in design copyright, with the potential for giving furniture designers a piece of any TV show, play, movie or real estate sale that includes unlicensed furniture. The easiest way for the court to avoid addressing this issue was to punt ? by ruling that the furniture in question was not copyrightable, the judge circumvented the more far-reaching implications of the case.

Stormtroopers and Mike Tyson?s Tattoo
Although they ultimately do not undermine the copyrightability of 3-D works derived from 2-D superhero material, there are a couple of interesting cases on pop culture copyright that are relevant to the discussion at hand. One is the controversial and surprising UK Supreme Court ruling that the Star Wars stoomtrooper helmet is an unprotected utilitarian design. Legal analysts have spun circles trying to make sense of this case within established legal doctrine supporting a far different conclusion, but at base, this decision is an exception that proves the rule.
The real driver in this ruling was not copyright law but national favoritism. A U.S. Court had previously found in favor of Lucasfilm and the Stormtrooper helmet copyright, awarding Lucas substantial damages and prohibiting distribution of the unauthorized Stormtrooper helmets in question. However, the maker of these particular helmets was a British engineer who had helped design the original. By ruling that the helmet was unprotected by copyright, the UK court freed this entrepreneurial Brit to sell his work without having to pay a multi-million-dollar judgment by an American court in favor of a wealthy American company.

Ironically, there was one American mega-corporation that made an unsuccessful attempt to get a court to rule that any 3-dimensional object based on a 2-D design should be in public domain. Time Warner, the corporate parent of DC Comics, was recently sued by the original designer of the Mike Tyson tattoo for its unauthorized use in The Hangover II, in which the Tyson tattoo was placed on the face of Ed Helms.
Time Warner raised several defenses for its unauthorized exploitation of an independent creator?s intellectual property. First, it argued that tattoos are not subject to copyright protection?because the tattoo was placed on the face, and the head, like all of the human body, is a useful object, this tattoo ? and any tattoo? was not protected by copyright. Moreover, Time Warner argued that the use of this tattoo in a multimillion dollar blockbuster constituted fair use. In particular, Time Warner that its use of the tattoo was a parody?whereas the tattoo is warrior imagery, the film is a comedy that uses the image outside its Maori context and Tyson?s warrior persona. Finally, because the designer had not filed suit over the first Hangover film or other photos of the Tyson tattoo, the designer had waived any copyright claim, thereby ensuring that the tattoo design was free to exploit.
Yes, you read that right ? Time Warner lawyers wrote a legal brief that would have put all of its DC Comics superhero material in the public domain.
At its narrowest scope, the argument Time Warner made in regard to the inherent uncopyrightability of tattoos and anything placed on any useful medium (a head, skin, paper) could equally apply to superhero tattoos and costumes ? just as a three-dimensional dress based on a copyrighted drawing is considered to be a useful article not protected by copyright, a Batman tattoo or costume would be uncopyrightable and thus free to produce without a license. If adopted by a court, Time Warner?s parody argument would be a gift to any writer or filmmaker wanting to use DC characters in humorous works distinct from their normal comic book context, with the most immediate benefit being the legal legitimation of superhero pornography. More broadly, a longstanding failure to enforce copyright among, say, cosplayers, artist alleys, porn films and bit-torrent sites could be cited as grounds for ruling that Time Warner had waived the copyright in all of this material, thereby placing all of DC Comics? intellectual property in the public domain.
Fortunately for Time Warner and DC, the judge in The Hangover II tattoo case found the lawyers? potentially revolutionary arguments to be ?just silly.? A settlement in favor of the tattoo designer resolved the case.
Closing thoughts
While it?s tempting to see copyright as an open field ripe for exploitation, the law regarding the production of unauthorized designs based on copyrighted superhero material is not as unresolved as some may think. Yes, courts sometimes make surprising decisions, and in certain circumstances comic copyright holders have given unauthorized use a pass. But making outliers and distinguishable cases the basis of one?s business model could lead to a cliffhanger that your unlicensed hero will not survive.
[Jeff Trexler is a lawyer and consultant and a comics fan who writes frequently about how legal matters pertain to comics.]
Source: http://www.comicsbeat.com/2012/02/03/the-legal-view-costumes-cars-and-copyright/
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