“Holy Copyright Law, Batman!” Those aren’t my words. I found this insightful reflection in Judge Sandra Ikuta’s recent opinion on the Batmobile, and they fit perfectly here.
What do the Happy Birthday lyrics and the Batmobile have in common?
Based on two recent decisions, that came down a day apart and assuming that they are not overturned on appeal, here’s what we know from a practical perspective. The Batmobile could sing Happy Birthday to Batman, Robin, Alfred or anyone else in a video or sound recording with reckless abandon. Happy Birthday is in the public domain. But no one can make an unauthorized Batmobile replica that sings that or any other song. The line has been drawn between cars with character and characters that happen to be cars.
A Present for the Public Domain
For anyone in the film industry, the inability to use the lyrics to Happy Birthday has presented challenges. The alleged copyright owners in the lyrics held a tight leash, leading filmmakers to go to great lengths to depict birthday celebrations with other songs to avoid making royalty payments. Enough was enough for Rupa Marya and others. They filed a federal class action lawsuit to declare invalid defendants’ copyright in the song. They won. Marya v. Warner/Chappell Music, Inc., No. 13-4460, slip op., 2015 U.S. Dist. LEXIS 129575 (C.D. Cal. Sept. 22, 2015).
In a comprehensive opinion, Judge George King relied on historical facts to decide the case. The court observed that “Happy Birthday” has at least two copyrightable elements, those being, the music and the lyrics. The music copyrights expired in 1949 and are in the public domain. The lyrics presented a more complex issue. The song was originally written in 1893 by sisters Mildred and Patty Hill, but due to serious questions about the chain of title for more than a hundred years afterwards, the court found that defendants did not own a copyright in the lyrics.
Defendants’ copyright registration did not help. Judge King found that the registration certificate for the lyrics was flawed. “Because this registration does not list any Hill sister as the author or otherwise make clear that the Happy Birthday lyrics were being registered, we cannot presume this registration reflects the Copyright Office’s determination that Summy Co. had the rights to the lyrics to copyright them.” Marya, slip op. at *23.
In reviewing the history of the lyrics, the court determined that as a matter of law that the Summy Company never received the rights to the Happy Birthday lyrics from the Hill sisters. “Defendants have no evidence a transfer occurred, whether by oral statement, by writing or by conduct…. There is no other testimony or circumstantial evidence tending to show that a transfer of the lyrics occurred. In fact, Defendants cannot even point to evidence showing that the Hill sisters transferred their rights in the lyrics to the Hill Foundation, such that the Hill Foundation could, in turn, legitimately transfer them to Summy Co.” Id. at *67.
The Batmobile Has Something to Sing About
The Batmobile and DC Comics have something to sing about. The Ninth Circuit recently held that the Batmobile cannot be duplicated or replicated without permission from DC Comics. DC Comics v. Towle, No. 13-55484, slip op., 215 U.S. App. LEXIS 16837 (Sept. 23, 2015). Any unauthorized Batmobile replicas violates U.S. copyright law, and those replicas will join the confiscate and destroy piles along with other fakes.
Didn’t Mark Towle understand that the Batmobile was a “character” worthy of copyright protection before embarking on his commercial monetization of Batmobile replicas?
Before the crack down on his business Gotham Garage, Towle produced replicas of the Batmobile as it appeared in both the 1966 television show and 1989 motion picture. He sold these beauties at around $90,000 to serious car collectors. He also sold kits that allowed customers to modify their cars to look the Batmobile from the TV show and movie. Towle advertised each replica as a Batmobile and used the domain name batmobilereplicas.com to market the products.
Writing for the Ninth Circuit, Judge Ikuta analyzed the evolution of the Batmobile. She found the “Batmobile is a fictional, high-tech automobile that Batman employs as his primary mode of transportation” and while it “has varied in appearance over the years, … its name and key characteristics as Batman’s personal crime-fighting vehicle have remained consistent.” Judge Ikuta observed that “[o]ver the past eight decades, the comic books have continually depicted the Batmobile as possessing bat-like external features, ready to leap into action to assist Batman in his fight against Gotham’s most dangerous villains, and equipped with futuristic weaponry and technology that is ‘years ahead of anything else on wheels.’” Towle, slip op at *3.
The court rejected Towle’s defenses. Towle argued that the Batmobile was not a copyrightable character because its appearance kept morphing and changing. Nice try, but wrong, said the court. “A consistent appearance is not as significant in our analysis as consistent character traits and attributes.” Towle, slip op. at *22. The batmobile is “crime-fighting car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.” Id. at *19.
Towle also urged the court to reject copyright infringement because his replicas looked substantially different from the depiction of the Batmobile in the comic book. The court was unpersuaded, because the Batmobile’s character traits, not appearance, guided the analysis.
The court concluded that Towle’s production and sale of Batmobile replicas infringed on DC’s exclusive right to produce derivative works of this character. Further, because Towle willfully infringed on DC’s trademarks in marketing his Batmobile replicas, the court upheld the lower’s court’s finding that he was not entitled to a laches defense to DC’s trademark claim.
As one of those filmmakers who could not afford to use Happy Birthday in any movie I’ve made, I feel compelled to sing a Happy Birthday to the Batmobile. I wish I could record it, post it, but then there could be an appeal. Also, I don’t sing so well.