Throughout his many incarnations, Batman, the fictional crime fighter and protector of the peace in Gotham City, has faced a wide range of very odd foes. Names like The Joker, Catwoman, Mr. Freeze and Penguin are familiar to fans of the Batman comic books, television series, and, of course, movies. But, any true fan of the Caped Crusader will have a hard time recalling any episode or story arc that pitted him against a small group of highly intelligent men and women clad in imposing black robes and wielding the power to decide the fate of something as important to Batman as his beloved Batmobile. That is, until now.
In March, the U.S. Supreme Court (aka “SCOTUS”) denied certiorari to a lower court ruling in favor of DC Comics and Warner Bros. and declined to hear the appeal of that ruling by Mark Towle, an Orange County, California auto mechanic who had been making custom builds of iconic Batmobiles for paying customers. By denying cert (as lawyers like to say), the Supreme Court left in place the lower court ruling against Towle.
Last September, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling finding that the maker of Batmobile replicas who admittedly copied Batmobile’s distinctive bat-like features and other unique characteristics properly was prohibited from doing so by virtue of copyright law.
In DC Comics v. Towle (2015 DJDAR 10757), the Ninth Circuit upheld a lower court judgment against Mark Towle dba Garage Gotham for copyright infringement. DC Comics, the publisher and copyright owner of Batman comic books, had filed a copyright and trademark infringement lawsuit against Mark Towle dba Garage Gotham who made and sold Batmobile automobile replicas based on the 1966 television show “Batman” and the 1989 film “BATMAN.” DC licensed the right to produce a TV show to American Broadcasting Co. in 1966 and the right to create a film to Batman Productions Inc. (BPI) in 1979. Both licensing agreements reserved merchandising rights in Batman products to DC.
The Batmobile in both productions maintained the bat-like appearance and equipped with state-of-the-art weaponry and technology as in the comic books. Finding, among other things, that DC owned the copyright to, and that Towle copied, the Batmobile as it appeared in the 1966 and 1989 productions, the district court granted summary judgment on the copyright infringement claim to DC. Affirmed. To prevail on a claim for copyright infringement, DC would have to prove that it owns a copyright in the Batmobile as it appeared in the 1966 television series and 1989 movie, and that Towle infringed that copyright by creating unauthorized replicas. Copyright protection extends not only to the original artwork as a whole, but also to “sufficiently distinctive” elements contained within the work.
The Ninth Circuit Court held that the Batmobile, with its bat-like appearance and unique characteristics, was distinctive enough to qualify for copyright protection. Further, infringement was established given that DC continued to own the underlying rights to the Batmobile despite the licensing agreements with ABC and BPI and given that Towle admittedly copied the Batmobile – even if he did not copy every feature – as it appeared in those productions. Accordingly, the appellate court upheld the judgment against Towle.
So, the next time you see a Batmobile cruising through your neighborhood you can rest assured that it is almost certainly being driven by Batman himself.
Why It Matters. Just because a party loses a case at trial and then loses the appeal before the appellate court doesn’t mean he or she has a right to have their case considered by the highest court in the land, the U.S. Supreme Court.
It is important to understand that not just any case can be heard by the U.S. Supreme Court. A case must involve an issue of federal law or otherwise fall within the jurisdiction of federal courts. A case that involves only an issue of state law or parties within a state will likely stay within the state court system where that state’s supreme court would be the last step.
When a case has been appealed as far as possible, a litigant may consider appealing to the U.S. Supreme Court, but in order to do so, the next step is to prepare a “petition for certiorari.” This is the document the Court will read in order to decide whether to hear a case. In that document, you will include a history of the case, the basic facts, and the important legal issues that your case presents.
Your opponent will also have a chance to file a response, and other interested parties may file briefs in support or against the petition. Your file will then go to a pool of Supreme Court clerks, who will review all of the documents, summarize them for the justices, and include a recommendation on whether to take the case. The justices then make a final decision. If they decide to hear a case, they will issue a “writ of certiorari.” [Certiorari” is Latin for “to be informed or certified.”] If they decide not to hear the case, they will deny cert. And, presumably, justice will prevail.
