When is a fictional character copyrightable? Certainly main characters are. But what about lesser characters – even ones that do not have even a single line?
Judge Ronald S.W. Lew faced this question in DC Comics v. Towle in February 2013 regarding the Batmobile. Defendant Mark Towle runs Gotham Garage a custom car business. He has been selling kits that allow people to customize their vehicles into the Batmobile. DC Comics sued for copyright and trademark infringement.
Like most of Batman’s fights, the outcome was not in much doubt. Batman wiped the floor with Towle. Judge Lew found that Towle violated DC Comics’ copyright and trademark rights in the Batmobile. Judge Lew found that the public is likely to be deceived by Towle’s product, and also that the Batmobile had enough “artistic features” to be protected under copyright law.
Batmobile certainly a unique image that justifies protection, if only because there is a demand for kits to fit out a car as a Batmobile. However, the line delineating what is protectable intellectual property starts getting very fuzzy as characters get less distinctive. Supporting characters and henchmen are almost always anonymous, or nearly so, and have little intellectual property protection. In Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930), the legendary judge Learned Hand found that “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly” in ruling that two plays featuring a Jewish person marrying a Catholic person in New York were not so similar as to constitute copyright infringement. Copyright protects expression, not ideas. Luckily, “Holy _____” is not long enough to constitute protected expression.
Photo By Joy Acharjee (Flickr) CC-BY-2.0, via Wikimedia Commons