Disputes due to creative differences or stealing original concepts and works have been aplenty in Hollywood. With years of hard work and huge money invested in each material that they’ve produced, television and movie studios wouldn’t want anybody to take advantage of their intellectual properties for free. Copyright infringement has been the main reason for these disputes, and basically, it was what made the entertainment studio, Warner Bros, take the prop creator and car builder Marke Towle to court in 2011. The case was initially filed in the Federal District Courts, brought to the Court of Appeals, and then elevated to the Supreme Court.
- 1 What was the lawsuit about?
- 2 Get to know Mark Towle
- 3 The federal court judgment
- 4 The legal case was brought to the Court of Appeals
- 5 The defendant took the case to the Supreme Court
What was the lawsuit about?
When news of the lawsuit hit the headlines, people were confused because some news sites used DC Comics as the plaintiff in the case instead of Warner Bros; the reason for that is they are practically one and the same in the sense that Warner Bros is the parent company of DC Comics.
Background of the case – Warner Bros vs Mark Towle
Defendant Mark Towle owned and managed a company called Gotham Garage known for creating props and vehicles used in the movie and TV industry. He created and sold replicas of Batman’s car, popularly known as the Batmobile. The first replica was based on the 1966 TV show, which starred Adam West, and the second was taken from the 1989 movie entitled “Batman,” which starred Michael Keaton. Mark also produced, marketed and distributed car parts and other accessories using the Batman trademarks.
Warner Bros (DC Comics), the plaintiff, was the publisher and owner of the copyright registrations of the comic books that featured the characters of Batman and his equally famous car, Batmobile. Both characters appeared not only in comic books, but also in TV series and movies. The plaintiff was also the successor-in-interest to Detective Comics, National Periodical, National Comics, and DC Comics Inc.
The issue was that the defendant sold Batmobile replicas without authorization from Warner Bros, which claimed that they owned the copyright of the said vehicle. In May 2011, the entertainment studio filed a lawsuit against Mark Towle and Gotham Garage in the Federal District Court citing copyright infringement, which meant the “Use of a copyrighted work without the owner’s permission.” The plaintiff also accused the defendant of infringing on its trademarks when he marketed and sold the replicas using the Bat emblem and “BATMOBILE” wordmark.
Mark Towle’s defense and denial of the allegations
The defendant filed a motion to dismiss the claim of copyright infringement in December 2011, but the Federal Court denied the motion in January 2012. It prompted Mark to file an answer to the allegations, claiming that he never infringed upon Warner Bros’ copyright, because he believed that both the 1966 TV series and the 1989 movie Batmobile designs weren’t under copyright protection. Mark insisted that he didn’t copy every single feature that was in the Batmobile design, but at the same time he never contested the notion that his creations were copies of the car that appeared in both movie and TV productions. He answered the trademark violation allegations with the laches defense, which in layman’s terms, referred to ‘a claim in a civil dispute if an unreasonable amount of time has passed since the incident has actually occurred.’
One of Mark’s main arguments was that a car was considered a ‘useful article,’ which meant that ‘copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship.’ Indeed, parts of a car such as the basic hood couldn’t be copyrighted because they served a purpose. A unique design on the hood could be protected because it didn’t have any purpose. However, Warner Bros countered it and said that they were not asking for protection of the entire design of the Batmobile but those with non-functional and artistic elements only. When the court asked if it could be separated from being a functional automobile, they said yes. Mark argued back and said that the entertainment studio lied about that because when they specifically asked the plaintiff to list which parts of the Batmobile they considered as non-functional, artistic, and separable, they included almost every visible part of the car including the color. The defendant even pointed out that the design of the Batmobile wasn’t even entirely original, since it was highly inspired by the 1955 Lincoln Futura concept car, and that there was no evidence that the original designers of the Batmobile even gave their rights to Warner Bros.
The Batmobile facts
Batman started appearing in comic books in May 1939 published by DC Comics. He was the superhero of the story and the alter ego of billionaire philanthropist Bruce Wayne in the fictional city of Gotham. As Batman, he had an official car popularly known as the Batmobile designed with various gadgets that could easily thwart or launch any tactical assault with military-grade hardware. When it first appeared in the comic books, it looked like an ordinary red car, but the design evolved and had a distinctive bat-like overall look with the large wing-shaped tailfins. When it became popular, TV and movie versions were produced.
Before the 1966 Batman TV series was aired, National Periodical, which owned the copyright of the Batman literary property at that time, allowed the American Broadcasting Company to use it for the production of the show; ABC network then had Twentieth Century Fox and Greenway Productions produce it. In effect, the copyright registrations of all the episodes of the Batman TV series back then were owned by Twentieth Century Fox and Greenway. The Batmobile which appeared in the series, was designed by George Barris and created by his company, Barris Kustom City.
By 1979, the owner of the Batman literary property entered into an agreement with Warner Bros to produce the movie versions including the 1989 movie, which gave the entertainment studio its copyright registration. It was Anton Furst who designed and created the Batmobile used in the movie. Warner Bros owned several Batman-related trademarks, that included the wordmark “BATMOBILE,” along with the BAT emblem design mark and other variations of the Batman symbol. These trademarks were all registered in various classes that were used on merchandise, such as toy automobiles, figurines, and apparel. They also had a contract with George Barris when they created replicas for the 1966 Batmobile.
On a side note, the original 1966 Batmobile was in George Barris’ private collection until he put it up for auction in January 2012. He recalled that when he was tasked to create the vehicle, he was given about $15,000 to build it from scratch with a deadline of 15 days to finish it. Since his time was limited, he bought the 1955 Lincoln Futura concept car from Ford for just a $1, and modified it to become the iconic Batmobile. During the auction, it was indicated that it was offered without any reserve price, and was eventually sold for $4.2 million.
Get to know Mark Towle
It was surprising to many people that Warner Bros would go after Mark Towle, a Hollywood prop maker and car/motorcycle restorer who opened up his business, Gotham Garage, in 1998. His business wasn’t as huge as it is now, and his services back then might have been recognizable in the local industry but not on a nationwide scale. At the time when the lawsuit was filed, Mark didn’t even have a million dollars in his net worth – most people believed that he attracted the attention of the huge entertainment studio because his Batmobile replicas were sold for approximately $90,000 each. When Warner Bros filed the case, the Californian native had already generated close to $200,000 for the three cars that were purchased from his garage. However, there were those who said that it was his blatant use of the Batman logos when he promoted his creations online that led to his reproductions being discovered by Warner Bros. Some car enthusiasts said that if Gotham Garage didn’t use the bat logos and the Batmobile wordmark, the entertainment studio would’ve just let it pass.
The federal court judgment
It took the Federal District Court about two years to make a judgment on the case, and considered only the admissible evidence that was presented. In January 2013, Senior District Judge Ronald S.W. Lew said that after the court reviewed all documents that were submitted and heard the arguments that were presented by both sides, ‘The Court GRANTS in Part and DENIES in Part Plaintiff’s Motion. The Court DENIES Defendant’s Motion.’
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The court found that Warner Bros (DC Comics) indeed had valid trademark rights and owned the bat emblem mark, the BATMOBILE wordmark, since Mark Towle never presented any evidence or arguments that those claims were invalid – the Gotham Garage owner didn’t dispute that he produced or distributed car kits and accessories designed with Batman trademarks. He also never disputed the fact that he used the website, “batmobilereplicas.com” when doing business. The defendant’s unauthorized use of those trademarks would likely confuse customers about where the products came from, because they were deemed substantially the same as those seen in TV series and movies. ‘Where goods are related or complementary, the danger of consumer confusion is heightened’, the court gave a summary judgment to DC’s motion on the defendant’s affirmative laches defense on the trademark infringement issues. Judge Lew said that Mark confessed that he was aware of the Batman property along with the bat logos and symbols used to depict the superhero, and that he described his creations as Batmobiles. It was therefore concluded by the court that Mark intentionally used the trademark so his replicas would be associated with the Batman TV series and movies.
Concerning the copyright infringement, Mark Towle disputed that Warner Bros owned the valid copyright of both the Batmobile vehicles in question. The defendant claimed that the Batmobiles were copyrightable under the Copyright Act, and that the plaintiff should be sanctioned for alleged litigation misconduct. However, Judge Lew said that Mark’s arguments lacked merit. Warner Bros predecessor, National Periodical, had a licensing agreement with ABC TV network, which allowed them the rights to ‘adapt, arrange, change, transpose, add to and subtract from said property’ and ‘to secure copyright and renewals and extensions of copyright’ of the Batman literary property. In effect, it gave Warner Bros all the merchandising exclusive right to create, sell, or even license other parties to enter into agreements including distribution, production, endorsements/ commercial tie-ups, or manufacturing privileges. The same judgment was given for the 1989 Batmobile.
Bottom line, the court found that Mark Towle’s Batmobile replicas were unauthorized derivative works and Warner Bros was entitled to sue him for infringement because they owned the exclusive copyright to the Batman material. The judge also said that the Batmobile was entitled to copyright protection as they defined it as a character, and that the character existed in both two- and three-dimensional forms. It negated the argument of Mark’s defense team that the design of a car isn’t protectable under copyright law. In essence, the court said that the defendant didn’t copy just any car, but a character.
The legal case was brought to the Court of Appeals
When Mark Towle lost in the Federal District Court, his defense team immediately appealed the case and it was brought to the Ninth US Court of Appeal. A three-judge panel was given the case, comprised of circuit judges Jay S. Bybee, Sandra S. Ikuta, and Michael J. Melloy. On 23 September 2015, they handed down their decision on the issue.
First, they tackled if the Batmobile was copyrightable. The panel said that they used the three-part test to find out whether a character that appeared in a comic book, TV show, or movie was entitled to copyright protection. After considering all facets of the case, the court decided that the Batmobile satisfied this three-way test reaffirming the Federal District Court Judge Ronal Lew’s decision on this issue. They said that the Batmobile could be recognized as the same character however and whenever it appears since it had distinctive conceptual and physical traits. The iconic vehicle also came with a unique name that everyone could easily recognize. These findings meant that it qualified for copyright protection. Second, they upheld the federal district court ruling, which said that Mark Towle indeed infringed upon Warner Bros’ copyright by creating and selling the Batmobile replicas.
The Ninth U.S. Court of Appeals reminded everyone that the law must interpose whenever iconic and globally beloved characters were being subjected to acts of infringement that violated the intellectual property rights of those who created them. With the kind of popularity that these characters enjoyed over the years, there would be instances in which some people would attempt to exploit it to make easy money. It was also for this reason that the court wanted to put a stop to these unethical practices and protect these legendary characters by using the rule of law. Judge Ikuta even said, ‘As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’
The defendant took the case to the Supreme Court
With the Ninth Court of Appeals ruling, people thought that Mark Towle would have taken the hint and accepted defeat, but he just wouldn’t give up, still contending that the previous decision would have disastrous consequences for car builders in general. His defense team took the case to the Supreme Court, as they were quite disappointed with the ruling of the three-panel judge. Larry Zerner, the defendant’s lawyer, said that his client only produced and sold cars and that a car was not a character because a car was just a car. He also said that under the law, it was quite clear that an automobile design didn’t qualify to be protected from copyright. He was hoping that the Supreme Court would hear the case and overturn the rulings of the lower courts. However, in March 2016, the Supreme Court decided not to hear the case, and that unequivocally ended the issue that Warner Bros/DC Comics won the copyright infringement case.
Mark Towle would no longer make Batmobile replicas and no one would ever see a Batmobile coming out of his Gotham Garage again unless authorized by Warner Bros. It was interesting to note that the original designers of the Batmobile were both dead by the time the case was elevated to the Supreme Court. George Barris was still up and about when the lawsuit started, but died in November 2015 just after the Ninth Court of Appeals rendered its judgment. Anton Furst already passed away in 1991, after he committed suicide by jumping off an eight-story building.
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After fighting it out for over years, Warner Bros won their copyright infringement lawsuit against Mark Towle from the Federal District Court up to the Supreme Court. The Gotham Garage owner not only lost the right to create Batmobile replicas, but also paid a hefty fine for making them in the first place without authorization. However, it didn’t stop him from making a name for himself, and even headlined a successful reality series called “Car Masters: Rust To Riches,” which made its TV debut on 14 September 2018; most fans weren’t aware that he was embroiled in a legal battle with Warner Bros. His popular show was expected to air its fifth season this 2023 through Netflix.