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Posted 2/5/2015 10:51:25 PM


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The Batmobile Isn't A Copyrighted Character, 9th Circ. Told
Share us on: By Brandon Lowrey

Law360, Los Angeles (February 05, 2015, 3:10 PM ET) -- A custom carmaker who sold Batmobile replicas urged the Ninth Circuit on Thursday to overturn a ruling that he violated Warner Bros. Entertainment Inc.'s copyright of Batman's iconic ride, saying a California federal judged erred in determining that the fictional automobile is a copyrighted character.

During a hearing in Pasadena, California, the carmaker's attorney Larry Zerner argued that Congress has specifically excluded automobile designs from copyright protection. That exclusion also applies to the sleek, black, bat-themed car that patrols Gotham City's streets, he said.

"Even though they have a Batmobile, and even though they claim it's a character, the protection of that character does not go to the design of the cars themselves," he said. "They're excluded from copyright protection at the outset, just like the Statue of Liberty is excluded. My client is free to make copies of these cars and sell cars based on these public domain designs."

The fight before the appellate judges focused in part on whether the bat-themed flair that Gotham Garage owner Mark Towle added to cars, such as tail fins that mimic bat wings and various gadgets, go beyond "useful" car parts and cross the line into infringement.

Towle contends that he designs the custom cars to be useful — they are driven on actual streets, not onto movie screens or comic book pages — and the car can't be dissected into its individual elements.

Warner Bros. Entertainment unit DC Comics, however, argues that U.S. District Judge Ronald S.W. Lew was correct to conclude in February 2013 that the Batmobile is entitled to the same copyright protection afforded its superhero occupant. The judge found that the Batmobile had several distinct design elements that distinguish it from the underlying car and make it a copyrightable character.

DC sued Towle in May 2011. The case goes to the core of Towle's business of building custom roadsters made to look like iconic cars from popular TV shows and movies. The cars cost as much as $90,000 and take more than 12 months to build.

Towle's replicas of the Batmobiles used in the 1966 television series starring Adam West and the 1989 film directed by Tim Burton were accused of infringing DC's copyrights and trademarks.

Judge Lew left to a jury the question of whether Towle is shielded from liability by what is referred to as the Laches defense. Towle claims DC waited too long to file its lawsuit because it knew of his Batmobile-building activities as early as 2003, when a Warner Bros. lawyer called him about a photograph of his garage showing the replicas.

On Thursday, DC Comics attorney James D. Weinberger of Fross Zelnick Lehrman & Zissu PC argued that he isn't taking issues with any useful features in Towle's custom cars. He said DC Comics takes issue with the elements that aren't useful: the flamboyant fins that don't make the cars more aerodynamic, and the jet exhaust pipe affixed to the rear of the replica that doesn't actually emit jet exhaust.

He also pointed to features in the replicas including a "Batscope" that functions as a rearview camera, and a bat-shaped car phone.

"We're not trying to prevent anyone from having a rearview camera or a car phone," Weinberger said. "But a car phone shaped like a bat that calls Commissioner Gordon is the subject of my client's copyright, and that's really where we draw the line."

Towle is represented by Edwin F. McPherson and Tracy B. Rane of McPherson Rane LLP and Larry Zerner.

DC Comics is represented by Roger L. Zissu, James D. Weinberger and Leo Kittay of Fross Zelnick Lehrman & Zissu PC, and J. Andrew Coombs.

The case is Mark Towle v. DC Comics, case number 13-55484, in the U.S. Court of Appeals for the Ninth Circuit.

— Additional reporting by Jonathan Randles. Editing by Ben Guilfoy.



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Post #135300
Posted 2/5/2015 10:52:24 PM


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DC Comics Skirts Roadblock In Batmobile IP Suit
By Zach Winnick

Law360, Los Angeles (January 25, 2012, 5:36 PM ET) -- A California federal judge on Wednesday tossed a bid by a custom carmaker to dismiss a copyright infringement claim in DC Comics’ intellectual property suit over replica Batmobiles, rejecting arguments that a copyright exclusion for useful items like cars voids the claim.

“You argue in a conclusory way, but [DC Comics has] pointed out authority that says otherwise,” U.S. District Judge Ronald S.W. Lew told an attorney for the defendant, car builder Mark Towle, who owns Gotham Garage. “The court finds the complaint pleads sufficient facts to support plaintiff’s copyright ownership and defendant’s infringement, which is all that’s required.”

Judge Lew’s ruling put an end to Towle’s early-stage effort to pare down a lawsuit striking at the very heart of his business — building custom roadsters made to look like iconic cars from popular TV shows and movies.

DC Comics filed the lawsuit in May, alleging that Towles’ full-size, driveable Batmobile replicas — which include versions from the 1966 television series starring Adam West and the 1989 film directed by Tim Burton — infringe copyrights and trademarks owned by the comic book publisher.

The Batman character generates big money, with licensed merchandise from the feature films ringing up gross retail sales in excess of $1 billion, according to the complaint

“[O]ne of the most famous identifiable elements associate with the Batman characters is a high-tech extraordinary automobile identified as the Batmobile vehicle, which has undergone many transformations over the years and includes various versions in design and style,” DC Comics said in an amended complaint filed in November.

The suit states causes of action for copyright infringement, trademark infringement and trademark counterfeiting, unfair competition under the Lanham Act, and common law unfair competition.

DC Comics is seeking a permanent injunction, along with treble damages or statutory damages, punitive damages, attorneys’ fees, and costs.

Towle filed a motion to dismiss DC Comics’ copyright infringement claim in December, arguing that useful articles like automobiles are not copyrightable, whether or not the car first appeared in a comic book.

“If this were true, then Ford, Toyota and GM would have gone into the comic book business long ago,” Towle argued in the motion.

In an opposition filed in January, DC Comics disputed that the useful articles exception invalidates its claim of copyright protection for the Batmobile.

“While automobiles (in their entirety) may be considered useful articles not protected by copyright, defendant’s motion utterly ignores the issue of separability of nonfunctional, artistic elements of plaintiff’s Batmobiles from the underlying vehicle,” the motion said.

Judge Lew agreed, denying Towels’ motion to dismiss the copyright claim.

“We’ll get to the merits of the case at a later date,” he told attorneys for both sides.

Towle’s attorney Larry Zerner said that his client would ultimately prevail on the copyright claim.

“We’re confident that when the court is presented with the full evidence regarding the history of the Batmobiles ... it will agree, one, that they’re not copyrightable, and two, those copyrights are not owned by DC Comics,” Zerner said. “If the 1966 Batmobile had a copyright, it would be owned by Twentieth Century Fox, and the 1989 [Batmobile] would be owned by Warner Brothers Pictures, not DC Comics.”

DC Comics is owned by Warner Bros. Entertainment Inc.

Representatives for DC Comics did not immediately respond to requests for comment Wednesday.

DC Comics is represented by J. Andrew Coombs and Nicole Drey of J. Andrew Coombs PC.

Towle is represented by Larry Zerner.

The case is DC Comics v. Mark Towle, case number 2:11-cv-03934, in the U.S. District Court for the Central District of California.

--Editing by Eydie Cubarrubia.



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Post #135301
Posted 2/5/2015 10:52:59 PM


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Batmobile Builder Says DC's Trademark Claim Came Too Late
By Matthew Heller

Law360, Los Angeles (January 30, 2013, 6:36 PM ET) -- A custom carmaker who builds replicas of the iconic Batmobile on Wednesday urged a California federal judge to throw out DC Comics Inc.'s claim that he is infringing its trademarks, saying the publisher waited too long to assert its rights and has suffered no damages.

Gotham Garage owner Mark Towle argues DC Comics unreasonably delayed bringing its claim because it knew of his Batmobile-building activities as early as 2003, when a lawyer at parent company Warner Bros. Entertainment Inc. called him about a photograph she had seen of his garage showing replicas in various stages of creation. DC Comics did not sue him for copyright and trademark infringement until May 2011.

“[The WB lawyer] doesn't say, 'Stop,' doesn't say, 'You're violating our copyright. Don't use our marks.' Nothing,” Towle's attorney Lawrence Zerner said at a hearing on his motion for summary judgment. “This is her job — to stop infringement for DC.”

He also said the testimony of DC Comics' deputy general counsel for intellectual property showed that from 1995 to 2010, the company was "not telling anyone in the Batmobile replica community ... to stop. They were not sending cease-and-desist letters. There's no evidence of any enforcement at all.”

But DC Comics' attorney Andrew Coombs of J. Andrew Coombs PC told U.S. District Judge Ronald S.W. Lew that he should grant the company's competing motion for summary judgment.

“There's no indication that [DC Comics had] knowledge that trademarks were in fact being used by Mr. Towle” in 2003, he said.

The suit strikes at the very heart of Towle's business: building custom roadsters made to look like iconic cars from popular TV shows and movies. The cars cost as much as $90,000 and take more than 12 months to build. DC Comics alleges Towle's replicas of the Batmobiles used in the 1966 television series starring Adam West and the 1989 film directed by Tim Burton infringe its copyrights and trademarks.

“[O]ne of the most famous identifiable elements associated with the Batman characters is a high-tech extraordinary automobile identified as the Batmobile vehicle, which has undergone many transformations over the years and includes various versions in design and style,” the publisher said in an amended complaint.

Towle contends that DC Comics' rights to the comic books do not grant it rights in the Batmobiles.

“The implications of a ruling upholding this standard are easy to imagine,” he said in his summary judgment motion. “Ford, Toyota, Ferrari and Honda would start publishing comic books so that they could protect what, up until now, was unprotectable.”

At Wednesday's hearing, Zerner also stressed that DC Comics had only acquired marks in the Batmobiles in November.

“There was no way to get a licensed car" before that, he said. “DC was not in the market.” Since there were no licensed Batmobiles on the market, there is no damage, he argued.

“We're going to trial on how much they've been damaged from the past three years of sales?” Zerner asked. “There's no actual damage because there was no market for them.”

The suit states causes of action for copyright infringement, trademark infringement and trademark counterfeiting, unfair competition under the Lanham Act, and common-law unfair competition.

DC Comics is seeking a permanent injunction, along with treble damages or statutory damages, punitive damages, attorneys’ fees, and costs.

Representatives for DC Comics did not immediately respond to requests for comment Wednesday.

DC Comics is represented by J. Andrew Coombs and Nicole Drey of J. Andrew Coombs PC.

Towle is represented by Lawrence Zerner.

The case is DC Comics v. Mark Towle, case number 2:11-cv-03934, in the U.S. District Court for the Central District of California.

--Editing by Elizabeth Bowen.



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Post #135302
Posted 2/5/2015 10:53:33 PM


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Batmobile A Copyrightable 'Character,' Not Just A Car: Judge
Share us on: By Jonathan Randles

Law360, New York (February 08, 2013, 8:10 PM ET) -- A California federal judge on Thursday found a custom carmaker liable for making replicas of the Batmobile, ruling Warner Bros. Entertainment Inc. has viable copyrights and trademarks protecting Batman's iconic crime-fighting vehicle.

U.S. District Judge Ronald S.W. Lew settled a dispute raised by Gotham Garage owner Mark Towle over whether the Batmobile, because it is a vehicle, is entitled to the same copyright protection afforded its superhero occupant. Judge Lew said several distinct Batmobile design elements, including tail fins that mimic bat wings and various gadgets, distinguish it from the underlying car and make it a copyrightable character.

If the court determined the Batmobile was simply an automobile, it would be considered a “useful article” that is generally not entitled to copyright protection, according to the ruling. Towle argued that extending copyright protection to the Batmobile would, conceivably, open a loophole allowing any car maker — like Ford or Toyota — to seek copyright protection for their vehicles if they published them in a comic book.

But Judge Lew said the Batmobile is one of a kind and that Warner Bros. subsidiary DC Comics Inc., which filed the lawsuit, was seeking only to protect unique features that set Batman's vehicle apart. In the ruling, Judge Lew said the Batmobile is like Batman's sidekick and a “extension of Batman's own persona.”

“It is undeniable that the Batmobile is a world-famous conveyance in the Batman franchise, exhibiting a series of readily identifiable and distinguishing traits,” Judge Lew said.

“The Batmobile is a fictional character tied to the fictional Batman character,” the ruling said. “The Batmobile is a crime-fighting weapon and used to display the Batman persona.”

DC sued Towle in May 2011. The case goes to the core of Towle's business of building custom roadsters made to look like iconic cars from popular TV shows and movies. The cars cost as much as $90,000 and take more than 12 months to build.

Towle's replicas of the Batmobiles used in the 1966 television series starring Adam West and the 1989 film directed by Tim Burton were accused of infringing DC's copyrights and trademarks.

Judge Lew left to a jury the question of whether Towle is shielded from liability by what is referred to as the Laches defense. Towle claims DC waited too long to file its lawsuit because it knew of his Batmobile-building activities as early as 2003, when a Warner Bros. lawyer called him about a photograph of his garage showing the replicas.

A trial is currently scheduled for March.

Towle's attorney Lawrence Zerner said Friday he is still reviewing the ruling and considering his options as it pertains to a possible appeal. He declined to comment further on the case.

Warner Bros. declined to comment.

DC Comics is represented by J. Andrew Coombs and Nicole Drey of J. Andrew Coombs PC.

Towle is represented by Lawrence Zerner.

The case is DC Comics v. Mark Towle, case number 2:11-cv-03934, in the U.S. District Court for the Central District of California.

--Additional reporting by Matthew Heller. Editing by Rebecca Flanagan.



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Post #135303
Posted 2/5/2015 10:56:44 PM


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February 8, 2013
Batmobile A Copyrightable 'Character,' Not Just A Car: Judge
A California federal judge on Thursday found a custom carmaker liable for making replicas of the Batmobile, ruling Warner Bros. Entertainment Inc. has viable copyrights and trademarks protecting Batman's iconic crime-fighting vehicle.
2 other articles on this case. View all »
Parties

Plaintiff
DC Comics
Represented by:
James Andrew Coombs, J Andrew Coombs APC

Nicole L Drey, J Andrew Coombs APC

Defendant
Does
Represented by:
Mediator ADR Panel
Bruce M Polichar
Represented by:
Bruce Maurice Polichar, Bruce M. Polichar Law Offices

Defendant
Mark Towle
Represented by:
Lawrence J Zerner, Larry Zerner Law Offices



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Post #135304
Posted 2/8/2015 8:33:48 PM


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Confused much??? You're posting same article but with different dates on'em?

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Post #135310
Posted 2/12/2015 12:35:13 PM


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Here is the oral arguments video.... Mark Towle vs DC Comics

https://www.youtube.com/watch?v=wZvhYGP8c0o


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