I recently came across a fascinating intellectual property hearing from last year. It concerns replicas of the Batmobile, and provides an interesting perspective as to what constitutes the character of a car. This extended piece begins with some excerpts from the appeal ruling.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
D.C. No. 2:11-cv-03934-
DC COMICS, Plaintiff-Appellee,
MARK TOWLE, an individual, DBA Garage Gotham,
Appeal from the United States District Court for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted February 5, 2015—Pasadena, California
Filed September 23, 2015
Before: Michael J. Melloy, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
‘Defendant Mark Towle produces replicas of the Batmobile as it appeared in both the 1966 television show and 1989 motion picture as part of his business at Gotham Garage, where he manufactures and sells replicas of automobiles featured in motion pictures or television programs.
‘Towle concedes that these replicas copy the designs of the Batmobile as depicted on television and in the motion picture, though they do not copy every feature. Towle then sells these vehicles for approximately $90,000 to “avid car collectors” who “know the entire history of the Batmobile.” Towle also sells kits that allow customers to modify their cars to look like the Batmobile, as it appeared in the 1966 television show and the 1989 motion picture.’ (p.7)
‘The Batmobile also has consistent character traits and attributes. No matter its specific physical appearance, the Batmobile is a “crime-fighting” car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains. In the comic books, the Batmobile is described as waiting “[l]ike an impatient steed straining at the reins . . . shiver[ing] as its super-charged motor throbs with energy” before it “tears after the fleeing hoodlums” an instant later. Elsewhere, the Batmobile “leaps away and tears up the street like a cyclone,” and at one point “twin jets of flame flash out with thunderclap force, and the miracle car of the dynamic duo literally flies through the air!”’ (p.16)
‘The design of the Batmobile did not directly copy any iterations of the Batmobile as it appeared in the comic books. As in the comic books, however, the Batmobile in the 1966 television show maintained a bat-like appearance and was equipped with state-of-the-art weaponry and technology.’ (p.5)
‘… the Batmobile is almost always 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.’ (p.16)
‘Furthermore, the Batmobile has an ability to maneuver that far exceeds that of an ordinary car. In the 1966 television series, the Batmobile can perform an “emergency bat turn” via reverse thrust rockets.’ (p.17)
‘Courts have recognized that copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, like comic book characters, contained within the work. Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1224 (9th Cir. 2008).’ (p.11)
‘In Halicki, we considered whether “Eleanor,” a car that appeared in both the original 1971 and 2000 remake motion picture Gone in 60 Seconds, could be entitled to copyright protection as a character.
‘Considering Eleanor’s persistent attributes in both the original and remake of Gone in 60 Seconds, we concluded that Eleanor met some of the key factors necessary to qualify for copyright protection. We first noted that Eleanor was more like a comic book character than a literary character given Eleanor’s “physical as well as conceptual qualities.”’ (p.13)
‘We also stated that Eleanor “displays consistent, widely identifiable traits and is especially distinctive.”
‘First, we noted that “in both films, the thefts of the other cars go largely as planned, but whenever the main human character tries to steal Eleanor, circumstances invariably become complicated.” Second, we noted that in the original, “the main character says ‘I’m getting tired of stealing this Eleanor car,’” and in the remake “the main character refers to his history with Eleanor.” (p.13)
‘Eleanor’s ability to consistently disrupt heists by her presence was more pertinent to our analysis of whether the car should qualify as a sufficiently distinctive character than Eleanor’s make and model. Indeed, Halicki put no weight on the fact that Eleanor was a customized yellow 1971 Fastback Ford Mustang in one film, and a silver 1967 Shelby GT-500 in another.’ (p.14)
‘The panel affirmed the district court’s summary judgment in a copyright and trademark infringement action brought by DC Comics against a maker of Batmobile replicas.
‘The panel held that the Batmobile, as it appeared in the Batman comic books, television series, and motion picture, was entitled to copyright protection because this automotive character was a sufficiently distinctive element of the works.
‘The panel held that DC Comics owned a copyright interest in the Batmobile character, as expressed in the 1966 television series and the 1989 motion picture, because it did not transfer its underlying rights to the character when it licensed rights to produce derivative works.
‘The panel held that the defendant’s replica cars infringed on DC Comics’ copyrights.’ (p. 2)
Nowhere in the above opinion is reference to the 1955 Lincoln Futura showcar. It was mentioned by the defendant in their initial motion, but for the summary judgment and this appeal ruling it’s an irrelevancy.
The judges relied on the characteristics of the Batmobile, and not the specific form.
George Barris is not mentioned in the appeal ruling either and he had even held a patent on the Batmobile’s design.
In September 1965, Barris entered into an agreement to construct the Batmobile. With a scant three weeks to produce the car for the TV series pilot, Barris suggested modifying an old Lincoln showcar he had sitting outside his showroom.
What follows are excerpts from that contract.
‘It is hereby agreed on this 1st day of September, 1965, TWENTIETH CENTURY-FOX TELEVISION, INC., and GREENWAY PRODUCTIONS, INC. thereinafter referred to as “Producer”, and LESTER E. TOMPKINS, IRVIN KUNS and GEORGE BARRIS, individuals doing business as Barris Kustom City (a partnership), hereinafter referred to as “Owner”, as follows:
1. Owner shall mechanically and structurally construct and modify the interior and exterior of its proto-Lincoln Chassis pursuant to and in accordance with:
(a) Those three (3) certain drawings of the “Batmobile” motor vehicle (hereinafter referred to as “Batmobile I”) prepared by Owner at the request and direction of Producer and heretofore delivered to Producer,
(b) Those three (3) certain sketches and one (1) working drawing subsequently prepared by Producer and delivered to Owner which alter and modify said drawings prepared by Owner, and
(c) That certain list of requirements heretofore delivered to Owner by Producer which are to be included in Batmobile I.’
‘3. Producer shall pay to Owner the following sums:
(a) Five Thousand Dollars ($5,000.00) upon execution of this agreement by Owner.
(b) Four Thousand Dollars ($4,000.00) if merchandising rights are obtained as provided for in Article 8 hereof prior to the commencement of the pilot motion picture tentatively entitled “BATMAN” (hereinafter referred to as the “Pilot”), or Nine Thousand Dollars ($9,000.00) upon completion of principal photography of the Pilot if said merchandising rights have not been obtained prior thereto.
Upon completion of the Pilot, Producer will deliver Batmobile I to Owner at Producer’s place of business
6. Owner grants to Producer the alternative options to (i) either rent Batmobile I from Owner at the rental rate of One-Hundred Fifty Dollars ($150.00) per day (during which rental time Producer shall retain possession of Batmobile I) or, (ii) to require Owner to construct and sell to Producer a motor vehicle (hereinafter referred to as “Batmobile II”)’
‘8. Subject to the approval first and obtained in writing from National Periodical, Producer shall have the right to acquire and own all or any part of the merchandising rights in and to Batmobile I and II. Merchandising rights are defined herein as the right to license the use of the design of Batmobile I and II in connection with such items as clothing, toys, games, jewelry and replicas thereof.
‘Out of one hundred per cent (100%) of the gross profits received from such merchandising rights in and to Batmobile I and II Producer shall deduct and pay all costs and expenses incurred in connection therewith and thereafter the net profits from said merchandising rights shall be divided and distributed as follows:
‘(a) A sum equal to twenty-five per cent (25%) shall be paid to Greenway Productions, Inc.
(b) A sum equal to twenty-five per cent (25%) shall be paid to Twentieth Century-Fox Television, Inc.
(c) A sum equal to twenty-five per cent (25%) shall be paid to Owner.
(d) A sum equal to twenty-five per cent (25%) shall be paid to American Broadcasting Company.
‘Not withstanding the foregoing division of net profits, if National Periodical demands a percentage of the net profits from the aforesaid merchandising rights, then such percentage shall be deducted pari passu from the shares of Greenway Productions, Inc., Twentieth Century-Fox Television, Inc., Owner and American Broadcasting Company.’
Owner shall either provide and install or provide for the installation of the following items:
1. The Switches and Hand-throttle knob for the Turbo-electric Drive.
2. The Bing-Bong Warning Bell and Bat-Light Flasher.
3. The Mobile Phone between the seats with Beeper and Flashing Light.
4. The Batscope, with TV-like Viewing Screen on the dash with control buttons and Radar-like Antenna with aimable parabolic Reflector outside, with cockpit controls.
5. Anti-theft System- Flashing Red Lights- Piercing Whistle- Little rockets built into tubes at the back of the cockpit that fire straight up with a fiery whoosh.
6. Anti-fire Control System- Flood of Foam from Secret Nozzle.
7. Turn-off switch for Protection Systems.
8. Radar-like screen that Beeps and Blips and points an arrow as it picks up Robin’s directional signal.
9. Mechanics for Emergency Bat Turn- Red Lever so named on Dash- Reverse Thrust Rockets beneath headlights- Ejection Parachute Mechanism at rear.
10. Bat-Ray Projector Mechanism- Lever on Dash so names- Hood Hydraulic Projector Device. (With possibility of ray coming from Bat-Eyes).
11. Portable Fire-Extinguisher.
12. Receiver and Sender Computer to be installed in trunk of Batmobile.
13. Bat symbols on hubcaps.
14. The color of the Batmobile and the Bat Symbols to be placed thereon shall be mutually agreed upon between Owner and Producer prior to the completion of the Batmobile.
15. Special luminescent paint to define Bat outline at night, the placement of which shall be mutually agreed upon between Owner and Producer prior to the completion of the Batmobile.’
‘7. Any and all right, title and interest in and to the design of Batmobile I resulting from the application of the required Batmobile features in and to Owner’s proto-type Lincoln chassis, save and except the name “Batmobile” and the Batmobile features set forth in Article 10 hereof and in the drawings and exhibits attached hereto, and of the completed Batmobile I provided for in Article 2 hereof, shall forever be vested in and owned jointly by Owner and Producer, subject only to any and all right, title and interest of National Periodical Publications, Inc. (herein referred to as “National Periodical”) in and to said Batmobile features in said design.’
Throughout the contract with the ‘Producer’ Fox/Greenway, Barris Kustom City is referred to as the ‘Owner’ of the ‘Batmobile I’ artifact itself, with the ‘Producer’ renting ‘Batmobile I’ beginning with some initial lump payments. Fox/Greenway didn’t require physical ownership of the vehicle, they just needed use of it. Note that the contract attempts to offset some upfront costs against later royalty streams.
The proposed merchandising royalty split appears to give Fox, Barris, Greenway and ABC an equal share after National Periodical’s share had been determined and deducted.
It would appear that Fox/Greenway and Barris together had contractual ownership of the design minus the bat elements, but not so.
What’s interesting is that the Lincoln was purchased by Barris from Ford (for $1) in December 1965, after the agreement to build the Batmobile had been fulfilled.
What’s more interesting is this May 1966 response to a query from Emmett Lavery, Director of Business Affairs at 20th Century Fox Television. Maybe Mr Lavery’s query concerned Barris’ patent over the vehicle.
In March 1966, four months after the first Batmobile was delivered, Barris applied for a patent on the car’s shape. This patent covered the ‘ornamental design for an automotive vehicle or similar article’. There are two vehicles depicted, the lower set featuring missile launchers and rear parachute pods (which were actually specified in the list of Batmobile requirements in the contract with Fox/Greenway).
This patent appears to co-opt the design minus (most) bat elements into Barris’ possession.
Daniel Strohl at Hemmings relates this story;
‘Dean Jeffries told Tom Cotter that he was originally tapped to build the Batmobile and had proceeded to cut up a Cadillac to do so, but the studio moved up the timetable on him, thus giving Barris the opportunity to provide the car. “The producers didn’t like working with Barris, but they were locked into him because he had the rights to the car,” Jeffries said. “They said, ‘We’re not going to deal with him again,’ so that’s how I ended up building the Green Hornet car and Wonder Woman’s car.”’
In August 1966, Barris was commissioned to build replicas of the Batmobile by Fox/Greenway to meet publicity needs.
A cast was taken of the Futura-based ‘Batmobile I’ shooting car and three fibreglass bodies were prepared over 1965/66 Ford Galaxie platforms with one to become the 427 Dragster. The vehicles were completed in November 1966.
The three replicas came with their own fender-affixed legal notice. The construction contract dated August 15 stated;
‘BARRIS agrees to affix permanently upon each vehicle produced hereunder appropriate copyright and trademark notices and supplied by NATIONAL PERIODICALS in the following form…’
‘“Batmobile”–The Barris Kustom Insignia–“Powered by…” The Ford Oval Insignia–“Greenway Productions…Mr. W. Dozier”–“Filmed at “20th” Century T.V.”–“National Periodicals Inc. “67”–“Design Patent…George Barris”–“ABC-Television…Batman”’
In October 1966, a synopsis of an Exhibition Agreement and Side Agreement with Barris was drafted by Fox/Greenway.
‘In this side agreement, Fox and Greenway waive the right to recoup from merchandising income accruing from this specific design of the Batmobile, the cost of the first car and rental in excess of $10,000 before any participation by Barris.
‘It is questionable, however as to whether Barris would be entitled to any a share of merchandising income in the first place, as the original Batmobile Agreement was deliberately worded to make Barris’ participation conditional on Fox and Greenway acquiring and handling merchandising rights, which, of course, they never have. However, even if he were to be adjudged entitled to share in merchandising income accruing from National Periodicals owning and handling merchandising rights, the amount waived is small by comparison to the saving on rent and the elimination of the “headaches” of the past year, – with the offset, also, of whatever new income share Fox and Greenway get from exhibition royalty.’
The exasperation with Barris is palpable, but neither party saw any royalties from merchandise because National Periodicals had arranged the merchandising themselves. Barris’ patent covered an automotive vehicle, and not a toy, so I’m not sure if he saw a cent from the merchandising revenue.
Barris’ patent lapsed in 1980. Given that he was not recognised as a rights holder in the Batmobile in both the initial summary judgment and subsequent appeal ruling for the recent case against Mark Towle, it would appear the rights for this vehicle have now been subsumed by DC Comics.
But as the legal notice on this current Hot Wheels Elite model listing shows, George Barris (who died late last year) presently receives a design ‘credit’ for its shape. How that credit is structured legally I don’t know.
In 2013 Barris sold the original ‘Batmobile I’ shooting car for $4.62m.
The Futura had cost $250,000 to build in 1955, but back then its value to the Ford Motor Company had been priceless. It was a strident and very visible manifestation of their future view; confident, wondrous and imaginative.
Maybe not so imaginative.
Ford’s showcars of the 1950s experienced little of the cultural resonance enjoyed by the ‘Dream Cars’ of GM and Chryco. As you can see above, some were just variations on a ‘semi-fastback bubbletop canopy and tailfins’ theme that had no real place in the world of tomorrow.
It has to be said, though, that the Futura was probably the most cohesive and accomplished of this bunch.
Where it most excelled was in previewing the look of the 1956 Lincolns for the public.
Before the grotesque 1958 and sublime 1961 Lincolns, the 1956 range was a handsome effort – probably the best from the decade. Those distinctive headlight cowlings were introduced that year, to be overstuffed with stacked twinsets in 1957. They had been suggested on the attractive Lincoln XL-500 showcar of 1954, and the Futura had clarified their scale and positioning as they were to be applied to the passenger models.
After a few years on the show and dealer circuit, the Futura was old news in the automotive world.
It found its way to Hollywood, where it was painted red and used in the 1959 movie ‘It Started With a Kiss’ with Debbie Reynolds. Eventually it found its way into storage with Barris, who had been involved with Ford on the showcar circuit.
From there it seemed to fall into that quagmire known as the law of unintended consequences.
The Futura was the brainchild of Lincoln/Mercury Division head stylist Bill Schmidt. It was apparently inspired by a fishing trip he took in the Bahamas with his friend Bill Mitchell, the same fishing trip that also inspired the shark-like 1959 Corvette XP-755.
The showcar was completed under Schmidt’s aegis, with Roy Brown working on styling details and Ghia of Turin building the actual functioning vehicle.
As a high-level ‘creative’ in the automobile industry, Schmidt would have been paid well; ample recompense for the fact that any rights over his output were contractually transferred to his employer. He had no ownership of his work for Ford, nor should he have – really. He was there to help build and sell cars, not to create Art.
There’s one thing that can never be denied him, however – authorship credit for the original Futura shape. A credit shared with others certainly, but his contribution the most substantive and his name first.
Comic artist Bob Kane was the co-author (along with writer Bill Fingers) of Batman. This excerpt from Mark Waid explains how thing operated in the comic world;
‘From the beginnings of American comics in the mid-1930s right up until the early 1980s, comics artists and writers were what we call today “work-for-hire”–they were paid a per-page rate by publishers, nothing else, and had no ownership stake in or claim to their creations. There were exceptions: though Siegel and Shuster were unquestionably undercompensated for Superman, they at least shared heavily in the royalties of his lucrative newspaper strip.
‘Bob Kane cut a hell of a deal with DC on his co-creation Batman in the late 1940s by threatening to throw his weight behind Siegel and Shuster when they sued for Superman ownership unless DC renegotiated with him–consequently earning a hefty gross percentage on all things Batman until he relinquished most of his rights in the late 1960s for a reported million dollars.’
That’s a happy Kane with his arm around Barris.
In the eyes of the law, the Batmobile has become a generic type of vehicle – by necessity all examples of which sharing similar characteristics.
So what is it that makes the 1966 Batmobile so special?
Strip away all the generic Batman legal definition stuff.
And its true character is revealed.