The Toy Book - 2016 NY TOY FAIR EDITION

“IT’S NOT WHO I AM
UNDERNEATH, BUT WHAT I
DO THAT DEFINES ME.”
The court explained that the Batmobile
has “physical as well as conceptual qualities,”
because it was graphically depicted in comic
books, the TV series, and movies. So, the
Batmobile is not “a mere literary character.”
The Batmobile is also recognizable as the
same character every time it appears. In other
words, since its first appearance in 1941,
whether in a comic book, on TV, or in a movie,
the Batmobile kept “distinct physical and
conceptual qualities” intact. The Batmobile
has been consistently “bat-like in appearance,
with a bat-themed front end, bat wings
extending from the top or back of the car,
exaggerated fenders, a curved windshield,
and bat emblems on the vehicle.”
BATMOBILE CHARACTERISTICS
In addition, the court explained that when
the Batmobile appears, it displays the same
character traits and attributes:
1. A crime-fighting car with powerful and
sleek characteristics that allows Batman to
maneuver quickly while he fights villains.
2. It waits like an impatient steed straining
at the reins, shivering as its super-charged
motor throbs with energy, before it tears after
the fleeing hoodlums.
3. Sometimes it leaps away and tears up
the street like a cyclone.
4.Twin jets ignite and flash out with
thunderclap force, and the miracle car of the
dynamic duo literally flies through the air.
5. It has jet engines and flame-shooting
tubes that undoubtedly give the Batmobile
far more power than an ordinary car.
6. It has the ability to maneuver, which far
exceeds that of an ordinary car (like using its
reverse thrust rockets to perform an emergency
bat turn).
7. It can enter Batmissile mode—shedding
all material outside [the] central fuselage,
with wheels and axles that can fit
through the narrowest openings.
8. It has up-to-date weapons and technology,
a dashboard phone with a hotline that
connects to the police commissioner’s office,
an alarm that keeps the Joker from stealing
the Batmobile, a mobile crime lab inside the
Batmobile, a Batscope with a screen, a Batray,
machine guns, and bombs.
These qualities proved to the court that
the Batmobile displays consistent, identifiable
character traits and attributes, and
fulfilled the second requirement for character
status. The court said that the Batmobile is
“especially distinctive,” possesses “unique
elements of expression,” and is not a stock
character. The Batmobile’s name and role as
Batman’s loyal steed fulfilled this last item
on the court’s checklist, entitling the car to
copyright protection as a character.
THE FINAL VERDICT
The court shot down Towle’s argument
that the Batmobile has been shown without
“bat-like” features. For example, in a comic
book, the Batmobile appeared as an armored
tank, and in a movie the Batmobile became
a Batmissile. The court said that changes like
these are similar to costume changes and
don’t alter the Batmobile’s innate characteristics.
In fact, they emphasize the Batmobile’s
ability to adapt in order to fight crime.
Once the court decided that the Batmobile
is a character, Towle’s only argument was
that DC Comics didn’t own the copyright,
because it had assigned some of its rights in
its Batman works. The court found that transferring
rights to produce derivative works, as
DC has done over the years, didn’t transfer
its underlying rights to the Batmobile character,
because a copyright in a derivative work
“must not in any way affect the scope of any
copyright protection in that preexisting material.”
When Towle copied a derivative work
without authorization, the car maker infringed
the copyright of DC Comics, the original
copyright owner in the underlying work (the
original Batmobile character), by assuming
that the replica also copied the original work,
which the court established that it did.
Finally, although the parties stipulated
that each side would bear its own costs and
attorney fees, they agreed upon damages of
$70,000 to settle the matter. The result could
have been much worse for the replica maker,
because the copyright statute allows for
awarding the attorney fees. »
Howard N. Aronson has provided
legal counsel to toy companies for
the past 30 years. He is the managing
partner of Lackenbach Siegel
LLP, an intellectual property law
firm recognized for its nine decades
of handling toy companies.
WHAT QUALIFIES AS A
DERIVATIVE WORK?
RAISING THE BAR
Batmobile depicted in the 1996 TV series The Batman
Towle’s replica of the Batmobile depicted above
Under the Copyright Act, a ’derivative
work’ is a work based upon one or more
preexisting works, such as a translation,
musical arrangement, dramatization,
fictionalization, motion picture, sound
recording, art reproduction, abridgment,
condensation, or any other form in which
a work may be recast, transformed, or
adapted. For example, a work consisting
of editorial revisions, annotations, elaborations,
or other modifications which,
as a whole, represent an original work of
authorship, is a derivative work according
to the Copyright Office. In order to be
copyrightable, a derivative work must
incorporate some or all of a preexisting
“work” and add new original copyrightable
authorship to that work. For example:
• A motion picture based on a play or
a novel
• A translation of a novel
• A revision of a published book
• A sculpture based on a drawing, a drawing
based on a photograph, or a lithograph
based on a painting
• A drama about John Doe based on the
letters and journal entries of John Doe
• A musical arrangement of a preexisting
musical work
• A new version of an existing
computer program
• An adaptation of a dramatic work
• A revision of a website
TOYBOOK.COM | FEBRUARY 2016 | THE TOY BOOK 245