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(io9)   Judge rules that it's illegal to sell custom Batmobiles because the Batmobile is itself a fictional character. Not sure if serious   (io9.com) divider line 69
    More: Strange, Judges' Rules, Batmobile, Ninth Circuit, Batman franchise, literary characters, DC Comics, custom cars  
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3427 clicks; posted to Entertainment » on 11 Feb 2013 at 12:41 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-02-11 12:48:18 PM
I can buy it. The car has a unique identity and identifiable traits, and serves a function in the story that cannot be served by a generic replacement. I don't see how "sentience" is the sine qua non of a "character."

Even so, aren't there situations where the Batmobile executes actions seemingly of its own accord -- e.g. via remote control or pre-programmed sequences -- to "rescue" Batman from a sticky situation? How does that make it any different than a robot- or computer-based character, who, presumably, lacks sentience and operates on pre-programmed sequences? In other words, how is R2D2 any more of a "character" than the Batmobile?
 
2013-02-11 12:55:09 PM
The first thing I'm getting when I hit the lottery:


http://buybatparts.com/joomla/index.php/replicas

$150,000 and fully licensed.
 
2013-02-11 01:00:46 PM
The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.
 
2013-02-11 01:24:47 PM
The "character" argument seems a little odd, but it is certainly part of the intellectual property associated with the TV show.  I doubt I could get away with selling scale replicas of the U.S.S. Enterprise or any of the Thunderbirds, either.
 
2013-02-11 01:26:48 PM

limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.


This.

There's lots of parts being made for Ecto-1's, but stopping the making of them would just hurt ANY chance for a GB3, besides Bil Murray.
Here's a idea. Don't name it.
Enterprise, Mystery machine....
But if I wanted a car from Fast and Furious, there's no name recognition.
 
2013-02-11 01:28:37 PM

limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.


Not really. If you don't defend it in court in this case, then in future cases defendents can point to your lack of defense in this case to prove that there is no copyright. It's kind of an "always or never" sort of deal
 
2013-02-11 01:30:46 PM
Also the crummy thing just can't keep a wheel on.
 
2013-02-11 01:32:44 PM

limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.


By not protecting your IP, you risk losing it (legally).
 
2013-02-11 01:36:16 PM
This made me think of an unrelated but honest question. What if I made a space ship that does not look like the NCC-1701 Enterprise but named her U.S.S. Enterprise. Could I possibly get in trouble for that. Do not know copy right laws.
 
2013-02-11 01:37:32 PM
/facepalm

Right decision, wrong reasoning. Copyright protection extends beyond mere characters or stories to any creative work embodied in a tangible medium, including building designs, sculptures, and the non-mechanical, non-utilitarian aspects of "works of artistic craftsmanship". It wouldn't cover the Batmobile's drive train or engine, but it covers the aesthetic aspects of the batwing fins, the overall shape, etc.

The decision even gets into it at page 41, noting that even if it's not a character, the Batmobile is a "pictorial, graphic, and sculptural work". But then, in the discussion of that on page 43, it suddenly shifts back to "but the Batmobile is a character." It's like the judge got confused there and returned to his earlier argument.

Unfortunately, between:
(i) the fact that DC, the party with money here, won;
(ii) the fact that the defendants have no money; and
(iii) the fact that DC  also won on its trademark and unfair competition claims, so even if the decision was reversed with regard to copyright (or remanded to focus on the pictorial/graphic/sculptural work issue), they're still boned,
this case will never be appealed.
 
2013-02-11 01:38:31 PM

Fonaibung: limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.

By not protecting your IP trademark, you risk losing it (legally).


There's no duty to police your patents or copyrights against infringement, unlike with trademarks and trade dress.
 
2013-02-11 01:41:34 PM

Lost Thought 00: limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.

Not really. If you don't defend it in court in this case, then in future cases defendents can point to your lack of defense in this case to prove that there is no copyright. It's kind of an "always or never" sort of deal


See above - that's trademark you're thinking of. You can't prove that there's no copyright because someone didn't go to court - did they create the work? Is it embodied in a tangible medium? Therefore they have copyright.
This is different in trademark law, where simply using a term (or even creating it) doesn't automatically give you rights... your rights arise from the connection in the minds of the consuming public between the mark and you. People know that "Big Mac" = McDonald's, for example. If tons of people started using "Big Mac" for their sandwiches, that association would go away, and McDonald's would lose their rights in the term.
 
2013-02-11 01:43:38 PM

yves0010: This made me think of an unrelated but honest question. What if I made a space ship that does not look like the NCC-1701 Enterprise but named her U.S.S. Enterprise. Could I possibly get in trouble for that. Do not know copy right laws.


You'd probably be okay under copyright law, since Gene Roddenberry doesn't have an exclusive right to the "Enterprise" name. But if you start selling you spaceship Enterprise, you'd probably run into a trademark problem, since consumers associate that term with him.
 
2013-02-11 01:44:32 PM
About the only outrage is that WB gets the licensing money and Baris gets the shaft.
 
2013-02-11 01:46:26 PM

Theaetetus: yves0010: This made me think of an unrelated but honest question. What if I made a space ship that does not look like the NCC-1701 Enterprise but named her U.S.S. Enterprise. Could I possibly get in trouble for that. Do not know copy right laws.

You'd probably be okay under copyright law, since Gene Roddenberry doesn't have an exclusive right to the "Enterprise" name. But if you start selling you spaceship Enterprise, you'd probably run into a trademark problem, since consumers associate that term with him.


That is what I was curious about. Seeing that historically, the Enterprise has been a very famous name in general, much like the Yorktown and Constitution (which are also names of Star Trek star ships). I was wondering if I could get away with naming a ship after the historical ships even though the name was used with an equally famous fictional ship.

Thanks.
 
2013-02-11 01:55:41 PM
Batmoblie s a character? no not buying that ,  but "the Batmobile would be copyrightable as a "pictorial, graphic, and sculptural work."  I will buy.
 
2013-02-11 02:00:30 PM

Danger Mouse: The first thing I'm getting when I hit the lottery:


http://buybatparts.com/joomla/index.php/replicas

$150,000 and fully licensed.


Right there with you.

FIRST purchase w/ lottery winnings.
 
2013-02-11 02:00:50 PM
If you outlaw Batmobiles, only criminals will have Batmobiles.
 
2013-02-11 02:08:28 PM

Theaetetus: Lost Thought 00: limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.

Not really. If you don't defend it in court in this case, then in future cases defendents can point to your lack of defense in this case to prove that there is no copyright. It's kind of an "always or never" sort of deal

See above - that's trademark you're thinking of. You can't prove that there's no copyright because someone didn't go to court - did they create the work? Is it embodied in a tangible medium? Therefore they have copyright.
This is different in trademark law, where simply using a term (or even creating it) doesn't automatically give you rights... your rights arise from the connection in the minds of the consuming public between the mark and you. People know that "Big Mac" = McDonald's, for example. If tons of people started using "Big Mac" for their sandwiches, that association would go away, and McDonald's would lose their rights in the term.


See MacDonalds v. McDowells for more detail.
 
2013-02-11 02:10:41 PM
Couldn't you sell custom built "Generic Vigilante Crimefighter Theme Cars" ?
 
2013-02-11 03:07:57 PM
A Hello Kitty version has a market.
 
2013-02-11 03:23:23 PM
Something like this is going on for Robby the Robot. Few years back some guy on the Replica Prop Forum received a cease and desist from some douche who owned the original saying that he couldn't build a replica because.

Well, after a big outrage, he built the prop anyway and it was just "Robot".
 
2013-02-11 03:26:50 PM

Theaetetus: Lost Thought 00: limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.

Not really. If you don't defend it in court in this case, then in future cases defendents can point to your lack of defense in this case to prove that there is no copyright. It's kind of an "always or never" sort of deal

See above - that's trademark you're thinking of. You can't prove that there's no copyright because someone didn't go to court - did they create the work? Is it embodied in a tangible medium? Therefore they have copyright.
This is different in trademark law, where simply using a term (or even creating it) doesn't automatically give you rights... your rights arise from the connection in the minds of the consuming public between the mark and you. People know that "Big Mac" = McDonald's, for example. If tons of people started using "Big Mac" for their sandwiches, that association would go away, and McDonald's would lose their rights in the term.


Ah, dammit. Got my nebulous suing terms crossed
 
2013-02-11 03:30:19 PM
There is a ton of stuff in IP law to get upset and angry about.  And I'm usually the first to scream about the absurdity of IP law.   This isn't one of them.
They were trying to make money off of selling bat mobiles.

Now if the customers were customizing their own cars and WB went after those hobbyists,  I'd be a bit more pissed off.
 
2013-02-11 03:56:00 PM

Warlordtrooper: Now if the customers were customizing their own cars and WB went after those hobbyists, I'd be a bit more pissed off.


WB would lose that, in my IANAL opinion.  I can draw a picture of Bart Simpson and hang it on my wall.  I just can't sell it, or use it in conjunction with a money making enterprise (like a blog with ads.)
 
2013-02-11 04:04:30 PM
So, the judge said, "Naw no no no, naw no no no..naw no no no, naw no no no..."
 
2013-02-11 04:11:23 PM

downstairs: Warlordtrooper: Now if the customers were customizing their own cars and WB went after those hobbyists, I'd be a bit more pissed off.

WB would lose that, in my IANAL opinion.  I can draw a picture of Bart Simpson and hang it on my wall.  I just can't sell it, or use it in conjunction with a money making enterprise (like a blog with ads.)


Common myth, and false with regard to copyright. Otherwise, how do you think they go after torrent pirates?
They wouldn't go after you because (a) they wouldn't find out about you, (b) the damages would be negligible although they could get statutory damages, and (c) bad publicity. But it's not that they legally <I>can't</I> go after you.

Trademark, otoh, requires "use in commerce" so complete non-commercial use is a defense.
 
2013-02-11 04:14:41 PM

Surool: If you outlaw Batmobiles, only criminals will have Batmobiles.

 
2013-02-11 04:28:27 PM

trotsky: Something like this is going on for Robby the Robot. Few years back some guy on the Replica Prop Forum received a cease and desist from some douche who owned the original saying that he couldn't build a replica because.


The guy who owns the original prop is just a collector.  It would be whomever owns the rights to Forbidden Planet that would have legal standing.  Unless they bought a pre-existing robot prop from someone else, in which case it gets messy.  Robby made guest appearances in The Twilight Zone, Lost in Space, and Gremlins to name a few.  The original prop was used in the first two, and possibly in Gremlins as well, but I wonder how the rights were handled.
 
2013-02-11 04:34:30 PM

Theaetetus: downstairs: Warlordtrooper: Now if the customers were customizing their own cars and WB went after those hobbyists, I'd be a bit more pissed off.

WB would lose that, in my IANAL opinion.  I can draw a picture of Bart Simpson and hang it on my wall.  I just can't sell it, or use it in conjunction with a money making enterprise (like a blog with ads.)

Common myth, and false with regard to copyright. Otherwise, how do you think they go after torrent pirates?
They wouldn't go after you because (a) they wouldn't find out about you, (b) the damages would be negligible although they could get statutory damages, and (c) bad publicity. But it's not that they legally <I>can't</I> go after you.

Trademark, otoh, requires "use in commerce" so complete non-commercial use is a defense.


Ok, cool.  I didn't know that.  You're smarter at this stuff, obviously.
 
2013-02-11 04:42:47 PM
acidcow.com
Man, I hope I don't get sued for this!
 
2013-02-11 04:43:09 PM
I don't care what you do as long as you give Stan Lee a decent cut.
 
2013-02-11 04:46:02 PM
I had a 66 dodge dart convertible that I made into a bat mobile for a parade float once. We stuck a turbo charged kerosene salamander in the trunk, sticking out and sprayed the whole deli o black and drove it down main street on fire in broad daylight and didn't get arrested and the fire marshal was right there, so I have that wonderful memory.
 
2013-02-11 05:06:56 PM
I'd much rather have a replica of the actual Lincoln Futura than a replica batmobile. It is a crime against humanity that that car never went into production. C'mon Ford, bring us the Lincoln Futura!! NOW!!!
 
2013-02-11 05:13:46 PM

Danger Mouse: The first thing I'm getting when I hit the lottery:


http://buybatparts.com/joomla/index.php/replicas

$150,000 and fully licensed.


Do they have the Tumbler? I want one of those.
 
2013-02-11 05:39:47 PM

limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.


No, it doesn't make WB look like douches.  It makes the customizer look like a douche without an ounce of creativity.
 
2013-02-11 05:39:50 PM

limeyfellow: The only problem with this is it makes Warner Bros seem like a bunch of douches and gives bad publicity. There comes a time when protecting your license does more harm than good.


I fail to see how this is makes them douches.    Batman and everything related to it is intellectual property.  The man wants to sell Batman products without as much as asking permission.  What is more, he did it for money.  This is as clear cut as it gets.  And the sad thing is that if he would have asked and been willing to pay the licensing fee, they would almost certainly let him do so.

While I am sure that WB's lawyers can be douches, in this case their "victim" was the douche.
 
2013-02-11 05:45:05 PM

Uzzah: I can buy it. The car has a unique identity and identifiable traits, and serves a function in the story that cannot be served by a generic replacement. I don't see how "sentience" is the sine qua non of a "character."

Even so, aren't there situations where the Batmobile executes actions seemingly of its own accord -- e.g. via remote control or pre-programmed sequences -- to "rescue" Batman from a sticky situation? How does that make it any different than a robot- or computer-based character, who, presumably, lacks sentience and operates on pre-programmed sequences? In other words, how is R2D2 any more of a "character" than the Batmobile?


images3.wikia.nocookie.net


oldfarthenry: [acidcow.com image 500x516]
Man, I hope I don't get sued for this!


As long as you're not selling it I think you're OK.
 
2013-02-11 06:00:36 PM
Fictional vehicles are people, my friend.

/Yes, that includes the car from The Car
 
2013-02-11 06:06:20 PM
Too bad they can't license this...

blogs.riverfronttimes.com
 
2013-02-11 06:17:32 PM

TheMysteriousStranger: And the sad thing is that if he would have asked and been willing to pay the licensing fee, they would almost certainly let him do so.


Unlikely... If they hadn't done anything since the 1960s, sure, but Batman is a current hot property. They would want to maintain control.
 
2013-02-11 07:35:48 PM
Meh.

I'm not "selling" the batmobile, I'm selling a car which I've crafted to look like one.

I crafted it in lieu of FanaticX doing the work himself, he's a busy man and I'm good with my hands.  I am making money for a service that is otherwise legal.

As long as my car is street legal, I can make it look however I please.(barring the possibility of it being a distraction hazard)

This, I think, is where protecting one's IP gets a bit ridiculous.

The shop is making money because they're good with custom automotive work.

They are not pre-fabricating things and selling them as if they were licensed manufacturers of said merchandising .

Can't put Batman graphic on a cake topping, on a tattoo, etc.  This is all taking it a bit overboard.
 
2013-02-11 08:08:38 PM

omeganuepsilon: They are not pre-fabricating things and selling them as if they were licensed manufacturers of said merchandising .


And when I see you driving down the street in  The Batmobile, how do I know that? Shiat, maybe you're some sort of wealthy and famous individual with incredible connections and got to drive the real thing.

... but wait, there's another one.

... and another one.

... and another on- hey! Apparently, this "exclusive" car is available for anyone with two dimes to rub together? What a pedestrian piece of shiat. Stupid Warner Brothers, licensing out their IP like a bunch of whores.

/and that, in a nutshell, is the doctrine of secondary confusion.
 
2013-02-11 08:17:29 PM
I agree with the judge, but the law is what's wrong. Warner Bros. doesn't have an official custom Batmobile product line. So this isn't doing anything to take away a dime of their business. It should be considered fan art.
 
2013-02-11 08:20:06 PM
I'd think they're a bit late. There are many Bat replicas out there, some completely built by at least two repeat makers, and quite a few hobbyists building their own. Besides, most of the car was designed by Ford, yes?   Chalk it up to studios having staff lawyers, and if the lawyers don't do this stuff, they get yelled at, and might have to settle for a BMW 7 series that year, the poor babies.

Check out www.1966batmobile.com, where all things batcar are discussed. The user forum is great, and there are photo threads of member's cars under construction.
 
2013-02-11 08:43:56 PM

Theaetetus: omeganuepsilon: They are not pre-fabricating things and selling them as if they were licensed manufacturers of said merchandising .

And when I see you driving down the street in  The Batmobile, how do I know that?


Because it's common knowledge that people customize their cars, and that studio's don't make a practice of selling such things and in all actuality get them custom made themselves.

Kid Mojo: So this isn't doing anything to take away a dime of their business. It should be considered fan art.


This.
 
2013-02-11 09:06:16 PM

yves0010: This made me think of an unrelated but honest question. What if I made a space ship that does not look like the NCC-1701 Enterprise but named her U.S.S. Enterprise. Could I possibly get in trouble for that. Do not know copy right laws.


My understanding is that as long as you don't call it the "Starship Enterprise" you're completely in the clear - that term is the only one anybody ever copyrighted.  You can call it "starship", as the term can't be copyrighted - for years, a little garage model company sold a resin kit of the "Starship C" (Enterprise NCC-1701C from one of the Next Gen episodes) and it drove Paramount nuts because they couldn't touch it.  That's one reason that they finally licensed some of the other ships from the movies and series, because they realized how much money was slipping away.
 
2013-02-11 09:59:16 PM
I get pissed off whenever I see nerds selling t-shirts with someone else's intellectual property on it. Same for homemade toys and knickknacks. If you don't own the character or story, then using someone else's creations to make money is unethical and makes you a douchebag.

But it happens all the time. Those damn t-shirt shops online let people design whatever they want and sell it, and I keep seeing people making and selling t-shirts with Mario, Doctor Who, Star Wars, Star Trek, Firefly, Marvel Superheroes, Fight Club characters, etc..

It just sucks. Go make your own character and sell t-shirts using that. Don't steal someone else's ideas, do a stupid mashup or sketch, and then sell it.

The same goes for the guys selling action figures or accessories, though at least they can claim you're paying for the time and materials, not for the image. The t-shirt people are just IP thieves; They don't print the t-shirts, market them, provide the materials, or put any time into the production after they've submitted their drawing.

Fan art is fine. Making a profit on fan art is not.
 
2013-02-11 10:45:06 PM

yves0010: This made me think of an unrelated but honest question. What if I made a space ship that does not look like the NCC-1701 Enterprise but named her U.S.S. Enterprise. Could I possibly get in trouble for that. Do not know copy right laws.


www.davidpride.com
Not if it's real, and you're the U.S. government.

If you make a fictitious spaceship named Enterprise for commercial purposes then you might run into trademark issues due to the reasonable chance you're trading on the Star Trek property.
 
2013-02-11 10:54:00 PM

Nem Wan: yves0010: This made me think of an unrelated but honest question. What if I made a space ship that does not look like the NCC-1701 Enterprise but named her U.S.S. Enterprise. Could I possibly get in trouble for that. Do not know copy right laws.

[www.davidpride.com image 735x490]
Not if it's real, and you're the U.S. government.

If you make a fictitious spaceship named Enterprise for commercial purposes then you might run into trademark issues due to the reasonable chance you're trading on the Star Trek property.


But whats funny about that is that in the Star Trek Mythos, the reason the Enterprise is named the Enterprise is because of the history of the past ships carrying her name throughout the centeries. Plus, most of the common ships in the TOS era had navel names. We saw Yorktown and Constitution. So I would think it wouldn't hold up in court but could be an issue.
 
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