Interesting Recent Developments in Copyright Law, feat. the Batmobile

"Happy Birthday!" by Vikas Bhardwaj (Flickr: Happy Birthday!) [CC BY-SA 2.0 (], via Wikimedia CommonsWe have gone into a bit of detail about copyrights here, and I have tried to present some real-world examples to demonstrate what types of materials may be subject to copyright protection, what rights copyright owners have, and so forth. The past few months have been unusually interesting (to put it bluntly) in terms of court decisions involving copyright law. Here is a quick rundown of a few recent decisions, and what they might mean.

A Happy Birthday, Indeed

You might have noticed that birthday scenes in movies and television shows rarely use the almost-universally-known song “Happy Birthday” (you know the one.) This is because a company has claimed copyright over the song for decades, and has aggressively enforced its rights against unauthorized use of the song. The company reportedly brings in upwards of $2 million per year from licensing the song. Those days may be over, however, because of a court ruling out of California.

The song has had a long and strange journey lasting more than a century. The first known publication of the melody was in 1893, when the Clayton F. Summy Company published the song “Good Morning to All,” written by sisters Mildred and Patty Hill. Throughout the first decades of the twentieth century, the song appeared in various publications with various birthday lyrics. The song we would all recognize first appeared in print in 1911, and Summy registered a copyright in this song in 1935. Warner/Chappell Music, a subsidiary of Warner Music Group, purchased the copyright in 1988.

In 2013, an independent documentary filmmaker filed a class action against Warner/Chappell and Warner Music Group, seeking a judgment invalidating the copyright. On September 22, 2015, a federal judge in Los Angeles granted summary judgment for the plaintiffs, finding that they had established, as a matter of law, that the copyright is invalid.

The lyrics to “Happy Birthday” are key to the judge’s order. The court found that Summy, at most, owned the rights to the melody and lyrics written by the Hill sisters. The song “Happy Birthday” includes that melody, but not those lyrics. The court essentially ruled that Summy never owned the rights to the “Happy Birthday” lyrics, making the 1935 copyright registration, the same copyright Warner/Chappell has been enforcing for years, invalid. Without a valid copyright, the song is in the public domain.

This ruling is far from final. It may still be subject to rehearing in the district court, or an appeal to the Ninth Circuit Court of Appeals. Warner/Chappell has filed a notice that it is requesting a rehearing, which is scheduled for a hearing before the judge in November.

To the Batmobile!

In a ruling that is sure to entertain comic book fans—well, some comic book fans, anyway—the Ninth Circuit Court of Appeals ruled in September 2015 that the Batmobile is subject to copyright protection. DC Comics owns the Batman character, and therefore holds copyrights to a vast number of Batman-related properties. The company is a subsidiary of Warner Bros. Entertainment, which produces and distributes Batman live-action and animated films, animated television series, video games, and other media. DC also licenses Batman and other characters for use by other companies.

It filed suit against the owner of Gotham Garage in Temecula, California for copyright infringement. The garage owner produced replicas of the Batmobile as it appeared in both the television series, produced by ABC beginning in 1966; and the 1989 feature film, produced by Warner Bros. through a series of licensing agreements. No Batman comic book has ever included either Batmobile design.

"1960s Batmobile (FMC)" by Jennifer Graylock/Ford Motor Company Ford Motor Company from USA [CC BY 2.0 (], via Wikimedia Commons

The defendant claimed that the 1966 and 1989 Batmobile designs are not subject to copyright protection. He alternatively claimed that, even if they are copyrightable, DC Comics does not own those copyrights because it was not the “author” of the television show or the movie.

"Batmobile" by Zachi Evenor and MathKnight [CC BY 3.0 ( or CC BY 2.0 (], via Wikimedia Commons

The district court ruled in DC’s favor, finding that both Batmobile designs are subject to copyright protection, and that DC maintained a copyright in both. It noted that certain distinctive characters are subject to copyright protection, specifically naming Batman, James Bond, and Godzilla, based on “the persistence of a character’s traits and attributes.” This applies even if specific details of a character’s appearance change from one work to another—such as if a character abruptly stops resembling Sean Connery and begins to look like Roger Moore, Pierce Brosnan, or several other individuals.

Courts have previously held that a car can qualify as a copyrightable character. In 2008, the Ninth Circuit held that “Eleanor,” the Ford Mustang featured in the 1974 film Gone in Sixty Seconds and its 2000 remake, was subject to copyright protection. The court applied the principles of this ruling to the Batmobile:
– “[B]ecause the Batmobile has appeared graphically in comic books, and as a three-dimensional car in television series and motion pictures, it has ‘physical as well as conceptual qualities,’ and is thus not a mere literary character.”
– “[T]he Batmobile is ‘sufficiently delineated’ to be recognizable as the same character whenever it appears.”
– The vehicle’s “bat-like appearance has been a consistent theme throughout the comic books, television series, and motion picture, even though the precise nature of the bat-like characteristics have changed from time to time.”
– “The Batmobile also has consistent character traits and attributes. No matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.”

You probably get the idea. Since this order comes from an appellate court, it is more likely to be final. The defendant could request a rehearing in front of all of the judges of the entire Ninth Circuit, or he can appeal to the U.S. Supreme Court. The Ninth Circuit covers much of the western United States, but this ruling has nationwide impact because it deals with a copyright registered at the federal level. Sorry if this messes up your “Uber in a Batmobile” business idea.

Coming soon: More exciting copyright cases, how the Texas anti-SLAPP law works (and doesn’t work), the right of publicity, Fair Use in trademark law, and more!!!

Photo credits: “Happy Birthday!” by Vikas Bhardwaj (Flickr: Happy Birthday!) [CC BY-SA 2.0], via Wikimedia Commons; “1960s Batmobile (FMC)” by Jennifer Graylock/Ford Motor Company from USA [CC BY 2.0], via Wikimedia Commons; “Batmobile” by Zachi Evenor and MathKnight [CC BY 3.0 or CC BY 2.0], via Wikimedia Commons.

Leave a Reply

Your email address will not be published. Required fields are marked *