Photo by Jennifer Graylock/Ford Motor Company http://www.flickr.com/people/[email protected] Ford Motor Company from USA [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0/)], via Wikimedia Commons

Visual Image Protection: When does copyright law protect a character from a work of fiction when the “character” is a mere thing, not even a talking thing like Hal, the computer in “2001 – A Space Odyssey?”

In the case of  DC Comics v. Towle the federal appellate court for the Ninth Circuit just recently said that not only was the Batmobile from Batman comics, TV and movie fame a character that could be prevented from use in entertainment media of others, the thing itself could not be replicated as a fully functional car.

The court described the Batmobile as such: “In addition to its status as ‘a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime,’ the Batmobile is almost always bat-like in appearance, with bat-themed front end, bat wings extending from the top or back off the care, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.” The Batmobile is “always depicted as being swift, cunning, strong, and elusive” and a “superhero” in its own right, “Batman’s sidekick, if not an extension of Batman’s own persona.”

Characters, not stock characters, can be protected by copyright where they are “distinctive” in their character attributes. But can a thing be a protectable character? Bear in mind that under copyright law a “useful article” – including cars on the road, no matter how aesthetically pleasing – are not protected by copyright. However, a 2-dimensional car in a movie is not a useful article and may be imbued in its context with elements of character. That car is part of the fictional world portrayed on the screen and can’t be driven off the theater parking lot after the credits have run.

To be sure, if the Batmobile appeared in a TV show or movie not produced by DC Comics, it’s easy to understand why it would be protected by copyright, given the fictional context. Also, a character is made distinctive by how the character relates to other characters and responds to fictional situations. For the Batmobile, it would be how it speeds, maneuvers, fires weapons, displays its “cunning,” and acts as a formidable extension of Batman.

However, if a fictional car is extracted from the movie and reincarnated as a purely utilitarian car that does not respond to make-believe events or characters in a fictional work, there would seem to be no character to be infringed; it’s the automotive equivalent of the “empty suit.”  Sure, maybe the bat decals on the sides, if any there are, do not have any utilitarian function and are separable from the car itself. But if you take the Batmobile out of the Bat Cave – and completely out of its fictional context – it’s just a car, and a copyright clunker at that.