C3 Patent and Intellectual Property Law

May122011 | Steve O'Donnell

DC vs Batmobile custom car seller

Did you know you can buy kits to customize your car so that it looks like the Batmobile? Let that sink in for a second: you could own a car that looks like the Batmobile! This has to be the greatest thing ever! Why did no one tell me about this before?

One of the accounts I follow on Twitter, @justiacom, posted a link to a complaint filed by DC Comics against Mark Towle (D.B.A. Gotham Garage) alleging Mr. Towle of engaging in copyright infringement, trademark infringement, trademark counterfeiting, and unfair competition (both under the federal Lanham Act and under California common law).

Looking at the website http://www.gothamgarage.net, it’s hard to say that there isn’t some infringement going on. Rather, it’s pretty clear to me that there is infringement (although that’s ultimately up to a court to decide). There are defenses that can be brought up, there always are--whether they’ll be successful is far too early to say. A more interesting question for me, is why does DC Comics care?

DC owns the Batman copyrights and trademarks. In this case, although there may not be any real, direct damage to DC if they were to allow Batmobile replicas to be made, they are risking abandoning their intellectual property if they don’t do something.

For the sake of argument, lets say that the sale of Batmobile replicas themselves aren’t damaging because DC doesn’t offer for sale, or license someone else to sell such replicas, so DC decides to ignore Mr. Towle’s replica business. What happens then if someone else starts selling Batman costumes, t-shirts, toys, etc (all of which are officially licensed products)? If DC was to exert their intellectual property rights against someone infringing those rights in a market that directly competed with Batman’s licensees, that infringer has an argument that DC abandoned their rights by not exerting them earlier against Mr. Towle, meaning that they really don’t care about protecting their marks and so the marks are not protect-able. It might not be a winning argument, but there is no reason not to keep one step ahead.

Of course, even without the concern that their rights will be lessened by not going after infringers, it’s still entirely proper for them to exercise their rights to protect their intellectual property, even if doing so means that something that sounds totally bad ass, like a Batmobile replica, becomes unavailable.

So, if replica Batmobiles (even if faithful and reverent) could be an issue, why hasn’t DC’s lawyers taken aim at Vivid Video, the makers of Batman XXX (link goes to a safe trailer on YouTube.com)? One reason is probably that DC doesn’t want to risk an adverse finding that the X-rated version is a parody protected by the First Amendment. Parodies are those works that take another work and twist it so that the new work makes fun of the original. In Campbell V. Acuff-Rose Music, Inc. the Supreme Court found that 2 Live Crew’s version of Pretty Woman was a parody that was intended to ridicule the original. Parody in this context is just part of the Fair Use infringement analysis, which is far too complicated to go into in great depth here. I’m not convinced that all porn “parodies“ are parodies under the case law, but a company could reasonably decide not to sue based on a calculation of how much it might cost to drag a case through the initial court and the appeals process on an iffy legal point.

Anyway, I’m trying to get an adjunct professor position at Batmobile State University, so if any of my readers knows the Dean, I’d appreciate a recommendation.

Before anyone gets smart, the picture is a partial frame from All-Star Batman and Robin #1, which you should read. It’s used without permission. I have a good fair use argument and I can make that call, because I’m the goddamn lawyer.