Breaking New Ground in Character Rights
The Batmobile Stands on its Own
In a case that started out as routine trademark and copyright enforcement matter, our client DC Comics obtained a decision in which a U.S. district court held that Batman’s famous Batmobile was protectable as a character. Wanting to ensure that the ruling was preserved on appeal, DC hired Fross Zelnick, with its long history of litigating issues related to character rights and a deep understanding of the intersection between trademark and copyright law, to handle briefing and argument at the U.S. Court of Appeals for the Ninth Circuit. At the argument, the Firm worked to help the Court understand the long but scattered history of cases dealing with character protection in the Circuit, while at the same time fielding questions that challenged DC for its position that elements like the Bat-Phone could be subject to copyright protection. (The answer? Of course it can, it’s not a real car phone but rather a fanciful and protectable prop that only calls Commissioner Gordon!) With Fross Zelnick’s help, DC prevailed: the Court of Appeals not only upheld the lower court’s ruling, but, in a precedential opinion laced with Batman references and quotes (“To the Batmobile!,” “Pow! Boff! Thwack!”), synthesized decades of precedent and made new law by setting out a three-part test for whether a character can be copyrightable independent of any specific work in which it appears and without requiring “sentient” attributes or the ability to speak. Our client not only secured the result it wanted, but gained a valuable appellate decision that goes well beyond the Batmobile and recognizes unique extensions for copyright protection in elements of entertainment properties.