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Page 1Declaration of Larry Zerner
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Larry Zerner (SBN 155473)Law Offices of Larry Zerner1801 Century Park East, Ste. 2400Los Angeles, CA 90067
(310) 773-3623Email: [email protected]
Attorneys for Plaintiff Mark Towle,An individual and d/b/a Gotham Garage
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DC Comics,
Plaintiff,
v.
Mark Towle, an individual and d/b/aGotham Garage, and Does 110,inclusive,
Defendants.
)))))))))))))
))))
Case No.: CV11-3934 RSWL (OPx)
Declaration of Larry Zerner in Supportof Defendants Motion for PartialSummary Judgment:
Date: January 30, 2013Time: 10:00 a.m.Courtroom: 3
Trial Date: March 26, 2013
Pre-Trial Conference: March 12, 2013Discovery Cut-Off: November 27, 2012
I, Larry Zerner declare as follows:
1.I am an attorney admitted to practice before this Court and I am the attorneyof record for Mark Towle in this action. The facts set forth in my declaration are
known personally by me to be true and correct, and if called upon as a witness, I
could and would competently testify thereto.
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Page 2Declaration of Larry Zerner
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2.This motion is filed after a meeting pursuant to Rule 7-3 held on August 21,2012.
3.When I was first hired as attorney for Mr. Towle, I carefully reviewed theComplaint, especially the 22 items identified on Exhibit A as the DC Comics
Copyrighted Designs. I also reviewed the history of the Batmobile and learned
that DC did not own the copyright to either the 1966 Batman television program or
the 1989 Batman motion picture. I looked at the items listed on Exhibit A which
included such things as Anti-piracy guides and coloring books and realized that
Mr. Towle could not have infringed any of these items as none of them had
anything to do with the Batmobile.
4.I then wrote to DCs attorney, J. Andrew Coombs, and requested a meet andconfer under Rule 7-3. On October 11, 2011, I had a meet and confer with Mr.
Coombs and informed him that Exhibit A did not identify the proper copyrights
and that Mr. Towle was entitled to know what copyrights were at issue. I told him
that he needed to add Warner Brothers and Twentieth Century Fox as parties and
add the copyrights to the movie and the TV show to the complaint if DC was even
going to begin to state a cause of action for copyright infringement. Mr. Coombs
said he would check and get back to me.
5.On November 22, 2011, DC filed its First Amended Complaint (the FAC).
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Page 3Declaration of Larry Zerner
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The FAC was basically identical to the original complaint except that DC added
another 13 comic books to Exhibit A. All of these additional comic books were
published after George Barris creation of the 1966 Batmobile so it was impossible
to see how DC could argue that Defendant had infringed the copyright in these
new comic books.
6.On December 6, 2011, I had another Rule 7-3 meet and confer with Mr.Coombs and explained to him that these additional comic books on Exhibit A did
not fix the problem with the complaint and told him I would move to dismiss under
Rule 12(b)(6) on the grounds that the copyrights at issue would be the copyrights
to the movie and TV show.
7. Mr. Coombs told me that he believed that the Batmobile copyright wascovered by these comic books. At no point did Mr. Coombs state or in any way
indicate that DC was suing on the underlying copyrights to the TV show or movie.
8.Attached hereto as Exhibit 271 is a true and correct copy of Exhibit A to theoriginal complaint.
9.Attached hereto as Exhibit 28 is a true and correct copy of Exhibit A to theFirst Amended Complaint.
1Because the Joint Stipulation contains Exhibits 1-26, I am starting number at
Exhibit 27 to avoid confusion.
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Page 4Declaration of Larry Zerner
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10.Attached hereto as Exhibit 29 is a true and correct copy of DefendantsMotion to Dismiss.
11.Attached hereto as Exhibit 30 is a true and correct copy of PlaintiffsOpposition to the Motion to Dismiss.
12.Attached hereto as Exhibit 31 is a true and correct copy of the Courts Orderon Defendants Motion to Dismiss pursuant to Rule 12(b)(6).
13.Attached hereto as Exhibit 32 is a true and correct copy of DCs disclosurepursuant to Rule 26(f). DC did not identify the copyrights to the TV show or the
1989 Motion Picture. DC did not produce the copyright registrations to the 1966
Batman TV show until December 2012, after the discovery cut-off.
14.Attached hereto as Exhibit 33 is a chart identifying the parts of the 1966Batmobile that DC claims were infringed and identifying why the claim does not
hold, either because the part a) does not appear in any of the identified comic
books, b) is not separable, c) is functional, d) is not artistic, e) is not found on the
replicas made by Defendant or f) is a part normally found on a car.
15.Attached hereto as Exhibit 34 is a chart identifying the parts of the 1989Batmobile that DC claims were infringed and identifying why the claim does not
hold, either because the part a) does not appear in any of the identified comic
books, b) is not separable, c) is functional, d) is not artistic, e) is not found on the
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Page 5Declaration of Larry Zerner
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replicas made by Defendant or f) is a part normally found on a car.
16.Attached hereto as Exhibit 35 is a true and correct copy of the relevantpages from DCs Responses to Special Interrogatories.
17.Attached hereto as Exhibit 36 is a true and correct copy of the relevantpages from DCs Supplemental Responses to Special Interrogatories and 2
nd
Supplemental Responses to Special Interrogatories.
18. Attached hereto as Exhibit 37 is a true and correct copy of relevant pagesfrom the Deposition of Jay Kogan.
19.Attached hereto as Exhibit 38 is a true and correct copy of the relevantpages from George Barris Deposition.
20.DC did not produce pursuant to discovery requests or Rule 26(f) anydocument which transferred Anton Furst design rights from Warner Bros.
Production Ltd. to Warner Bros. Inc.
21. I swear under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.
Executed this 26th
day of December 2012 in Los Angeles, CA.
/Larry Zerner/
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Page 6Ex. 27
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Larry Zerner (SBN 155473)ZernerLaw1801 Century Park East, Suite 2400Los Angeles, California 90067Telephone: (310) 773-3623Facsimile: (310) 388-5624
Attorney for Defendant Mark Towle,An individual and d/b/a Gotham Garage
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DC Comics,
Plaintiff,
v.
Mark Towle, an individual and d/b/aGotham Garage, and Does 1 10,inclusive,
Defendants.
)))))))))))))
Case No. CV11-3934 RSWL (OPx)
NOTICE OF MOTION ANDMOTION TO DISMISS CLAIM OFCOPYRIGHT INFRINGEMENTPURSUANT TO FRCP 12(b)(6).
HEARING DATE: January 25, 2012TIME: 10:00 a.m.COURTROOM 21
BEFORE THE HONORABLERONALD S.W. LEW
TO ALL PARTIES HEREIN AND TO THEIR RESPECTIVE ATTORNEYS
OF RECORD:
Please take notice that on January 25, 2012 at 10:00 a.m. in the Court of Judge
Ronald S.W. Lew, located in Courtroom 21, 312 N. Spring Street, Los Angeles, CA,
Defendant Mark Towle ("Defendant") will move the Court for dismissal of the cause
of action for copyright infringement, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, for the following reasons:
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-ii Motion to Dismis
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1) Plaintiff is suing defendant for copyright infringement of an automobileand automobile designs cannot be copyrighted.
2) Plaintiff is not, and does not claim to be, the copyright holder to the 1966Batman television series, or any of the subsequent motion pictures that the
automobiles first appeared in.
3) None of the Batmobiles were separately registered for copyright.4) The Batmobiles that Defendant is accused of infringing were subject to
design patents which have long since expired.
This motion will be based on this Notice of Motion and Motion, the
Memorandum of Points and Authorities filed herewith, the Request for Judicial
Notice filed concurrently herewith, the First Amended Complaint and the pleadings
and papers filed herein.
This motion is made following the conference of counsel pursuant to L.R. 7-3
which took place on December 6, 2011.
Date: December 16, 2011 Law Office of Larry Zerner
By: ____________________
Larry Zerner
Attorney for Plaintiff
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-iii Motion to Dismis
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TABLE OF CONTENTS
INTRODUCTION ....................................................................................... 1
II. FACTUAL BACKGROUND ................................................................. 2
III. STANDARDS GOVERNING MOTIONS TO DISMISS .................... 3
IV. AUTOMOBILES ARE NOT COPYRIGHTABLE .............................. 4
V. PLAINTIFF IS NOT AND DOES NOT CLAIM TO BE THE
COPYRIGHT OWNER OF THE BATMAN TELEVISION SERIES OR
ANY OF THE BATMAN MOTION PICTURES8
VI. THE 1966 BATMOBILE AND THE 1989 BATMOBILE WERE
SUBJECT TO DESIGN PATENTS THAT HAVE LONG SINCE EXPIRED.
...................................................................................................................... 12
VII. PLAINTIFF SHOULD BE ALLOWED TO AMEND THE
COMPLAINT ONLY ON CERTAIN NARROW CONDITIONS ............ 13
VIII. CONCLUSION ................................................................................... 14
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-iv Motion to Dismis
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TABLE OF AUTHORITIES
CasesAshcroft v. Iqbal, 200 U.S. 321, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ....... 4
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007) .................................................................................................................... 3, 4
Durham v. Tomy, 630 F.2d 905, 915 (2nd Cir. 1980) ............................................ 7, 11
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) ........ 3
Statutes17 U.S.C. 113(b): ....................................................................................................... 7
17 U.S.C. 101 .............................................................................................................. 5
Federal Rule of Civil Procedure 12(b)(6) ..................................................................... 3
Federal Rule of Civil Procedure 8(a)(2) ....................................................................... 3
OtherAuthoritiesH.Rep.No. 1476, 94th Cong., 2d Sess. 55 (1976), U.S. Code Cong. & Admin. News
1976, p. 5668 ............................................................................................................. 7
House Comm. on the Judiciary, 87th Cong., Report of the Register of Copyrights on
the General Revision of the U.S. Copyright Law (1961).......................................... 7
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I. INTRODUCTIONIt is a well settled principle of law that useful articles, such as toasters, silverware,
and automobiles are not copyrightable. While many useful articles incorporate
creative design elements, bestowing copyright on such designs would give patent-
like protection to these utilitarian objects, without requiring the additional review
performed before a patent is granted. This would result in protection for works that
are neither novel nor non-obvious.
DC Comics, however, seems to believe that this well established rule, that
automobiles are not copyrightable, does not apply if it merely alleges that the
automobile first appeared in a comic book.1 DC sued Mr. Towle for copyright
infringement for selling working replica automobiles that resemble the Batmobile
and claims that the design of the Batmobiles is protected by copyright.
However, while there may be no dispute that DC owns the copyright to Batman,
Robin, Joker, Riddler, Penguin, and all the other flamboyant characters in their
superhero universe, one thing should be absolutely clear, for the following reasons,
DC does not and cannot own a copyright for an automobile that looks like the
Batmobile.
1) Automobile designs cannot be copyrighted and are not protected bycopyright
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-2 Motion to Dismis
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2) DC is not, and does not claim to be, the copyright holder to the 1966Batman television series, or any of the subsequent motion pictures in which
the Batmobiles first appeared.
3) None of the Batmobiles were separately registered for copyright.4) The Batmobiles that Mr. Towle is accused of infringing were subject to
design patents which have long since expired.
For these reasons, to the extent that DC is claiming that Mr. Towle infringed its
copyright by selling replica Batmobile automobiles, it has failed to state a claim
against Mr. Towle.
II. FACTUAL BACKGROUNDAs Plaintiff alleges right at the beginning of the First Amended Complaint
(FAC), Defendants business is actively producing, selling, offering for sale,
renting, and distributing unlicensed and counterfeit replica vehicles and kits
comprised of assorted parts and accessories, which incorporate unauthorized
reproduction of fanciful vehicles copyrighted . . . by DC Comics . . . including . . the
various BATMOBILE vehicles. . . . FAC, 1.
The most famous Batmobile appeared in the 1966 television series starring
Adam West (FAC 8) and other Batmobiles appeared in various films beginning in
1989 (FAC 9). DC claims that all the Batmobile Vehicles, and specifically the
1 If this were true then Ford, Toyota and GM would have gone into the comic bookbusiness long ago.
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-3 Motion to Dismis
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1966 Batmobile are DC Comics Copyrighted Designs (FAC 11) and that DC has
obtained certificates of registration for works in which each of the DC Comics
Copyrighted Designs appear and that the relevant copyright registrations are
attached as Exhibit A to the FAC.
DC alleges that Mr. Towle has infringed DCs copyright by manufacturing,
distributing, selling, offering for sale or rent, unauthorized or counterfeit automobiles
which incorporate DC Comics Copyrighted Designs, including the design of the
various Batmobiles. (FAC 25). DC then requests in the prayer for relief that Mr.
Towle be enjoined from selling any automobiles that are not authorized by DC
Comics. (FAC Prayer 1a.)
III.STANDARDS GOVERNING MOTIONS TO DISMISSFederal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short
and plain statement of the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a
defendant may seek dismissal of a complaint for failure to state a claim upon which
relief can be granted. A court may grant such a dismissal only where the plaintiff
fails to present a cognizable legal theory or to allege sufficient facts to support a
cognizable legal theory.Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097,
1104 (9th Cir. 2008).
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-4 Motion to Dismis
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To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain more
than labels and conclusions or a formulaic recitation of the elements of a cause of
action. Twombly, 550 U.S. at 555; see also Ashcroft v. Iqbal, 200 U.S. 321, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (Rule 8 . . . does not require detailed
factual allegations, but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.). In other words, the plaintiff must articulate
enough facts to state a claim to relief that is plausible on its face. Twombly, 550
U.S. at 570. A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.Iqbal, 129 S.Ct. at 1949. The plausibility standard is not
akin to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully or facts that are merely consistent with a
defendants liability.Id.
In conducting the above analysis, a court must accept all factual allegations as
true even if doubtful in fact. Twombly, 550 U.S. at 555. However, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.Iqbal, 129 S.Ct. at 1949.
IV. AUTOMOBILES ARE NOT COPYRIGHTABLEIt is undisputable that automobiles, even automobiles that have been reproduced
in comic books, are not subject to copyright protection. The reason for this is that
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-5 Motion to Dismis
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automobiles are considered to be useful articles and useful articles are not
subject to copyright protection.
A useful article is an article having an intrinsic utilitarian function that is not
merely to portray the appearance of the article or to convey information. 17 U.S.C.
101.
The design of a useful article, as defined in this section, shall be considered a
pictorial, graphic, or sculptural work only if, and only to the extent that, such design
incorporates pictorial, graphic, or sculptural features that can be identified separately
from, and are capable of existing independently of, the utilitarian aspects of the
article.Id.
That automobiles are useful articles and are not copyrightable is an entirely non-
controversial idea. It is only DC Comics that believes that this rule does not apply to
the Batmobile. On the Copyright Office website, one can find an article on Useful
Articles that states:
A useful article is an object that has an intrinsic utilitarian function that is not
merely to portray the appearance of the article or to convey information. Examples
are clothing; automobile bodies; furniture; machinery, including household
appliances; dinnerware; and lighting fixtures. An article that is part of a useful
article, such as an ornamental wheel cover on a vehicle, can itself be a useful
article. (http://www.copyright.gov/fls/fl103.html). (Emphasis Added.)
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-6 Motion to Dismis
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Nor does it matter that the Batmobile design may be more aesthetically
satisfying or valuable than that of a less exotic looking car.
The House Report on the 1976 Act emphasizes that the definition of
"pictorial, graphic, and sculptural works" was intended "to draw as clear a line as
possible between copyrightable works of applied art and uncopyrighted works of
industrial design."
Although the shape of an industrial product may be aesthetically satisfying
and valuable, the Committee's intention is not to offer it copyright protection
under the bill. Unless the shape of an automobile, airplane, ladies' dress, food
processor, television set, or any other industrial product contains some element
that, physically or conceptually, can be identified as separable from the
utilitarian aspects of that article, the design would not be copyrighted under the
bill. The test of separability and independence from "the utilitarian aspects of
the article" does not depend upon the nature of the design, that is, even if the
appearance of an article is determined by aesthetic (as opposed to functional)
considerations, only elements, if any, which can be identified separately from the
useful article as such are copyrightable. And, even if the three-dimensional
design contains some such element (for example, a carving on the back of a chair
or a floral relief design on silver flatware), copyright protection would extend
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-7 Motion to Dismis
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only to that element, and would not cover the overall configuration of the
utilitarian article as such.
Durham v. Tomy, 630 F.2d 905, 915 (2nd Cir. 1980) quoting H.Rep.No. 1476
94th Cong., 2d Sess. 55 (1976), U.S. Code Cong. & Admin. News 1976, p. 5668
(Emphasis added).
The Congressional record preceding the adoption of the Copyright Act sets forth
the following examples of the limitation expressed by 17 U.S.C. 113(b):
Under distinctions indicated in existing court decisions, that the copyright in a
work portraying a useful article as such would not protect against manufacture of
that article,copyright protection would not extendto the following cases:
- A copyrighted drawing of a chair, used to manufacture chairs of that design;
- A copyrighted scale model of an automobile, used to manufacture
automobiles of that design;
- A copyrighted technical drawing showing the construction of a machine used to
manufacture the machine;
- A copyrighted picture of a dress, used to manufacture the dress.
House Comm. on the Judiciary, 87th Cong., Report of the Register of Copyrights
on the General Revision of the U.S. Copyright Law (1961). (Emphasis Added).
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-8 Motion to Dismis
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The record is clear not only that useful articles are not copyrightable but that
automobiles are often given as the textbook example of an item that can be
aesthetically pleasing and require design, but not subject to copyright protection. The
Batmobile is no more subject to copyright protection than would the Bat Coffeepot
or the Bat Pencil.
Please note that Mr. Towle is not being accused of selling drawings of the
Batmobile, or toy models of the Batmobile. Mr. Towle is accused of selling full
scale, working, automobiles that resemble the Batmobile. As such, they are
absolutely considered to be useful articles.
Attached to the Request for Judicial Notice as Exhibits 1 2 and 3 are true
and correct copies of photographs of the Batmobile from the 1966 television series,
the 1989 motion picture and the 1995 Motion Picture. Plaintiff requests that the court
take judicial notice of these photographs.
As the court can see from viewing the photographs of the Batmobiles, the design
of the cars themselves are not copyrightable, nor are they severable. Accordingly, to
the extent that Plaintiff is claiming that reproductions of the Batmobiles constitute
copyright infringement, it has failed to state a claim.
V.PLAINTIFF IS NOT AND DOES NOT CLAIM TO BE THE COPYRIGHTOWNER OF THE BATMAN TELEVISION SERIES OR ANY OF THE
BATMAN MOTION PICTURES.
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-9 Motion to Dismis
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Even if the Court were to accept that the Batmobiles from the 1966 television
program or the various motion pictures are entitled to copyright protection, DC
cannot claim copyright infringement to these automobiles because DC is not the
copyright claimant to either the 1966 television program or any of the motion
pictures. In Exhibit A to the FAC, DC lists 34 different properties it claims Mr.
Towle may have infringed. As copyright registration is a prerequisite to filing a
lawsuit for copyright infringement, Plaintiff must show that it has registered (or at
least applied for registration) to whatever material Mr. Towle is accused of
infringing. However, notably missing from the list of copyrighted items on Exhibit
A are any claims to either the 1966 Batman television series, or any of the
subsequent Batman motion pictures. The reason for this is simple. DC Comics is
not the copyright claimant to either the television series or the motion pictures. The
copyright claimants to the television series are Greenway Productions, Inc., and
Twentieth Century-Fox Television, Inc. The copyright claimant to the various
motion pictures is either Warner Brothers or Warner Brothers Pictures. Attached to
the Request for Judicial Notice as Exhibits 4 through 8 are true and correct
copies of the copyright registrations for the 1966 television series2 and the motion
pictures. Judicial Notice of these facts is hereby requested.
2 With regard to the 1966 Television Series, attached is the copyright record for thefirst episode of the series, Hi Diddle Riddle. If the court would like the copyrightrecords for all 120 episodes, they can be provided. However, it does not appear to bein dispute that DC Comics is not the copyright owner of the television series or the
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DC appears to be arguing that the appearance of a version of the Batmobile in
the Batman comics, was sufficient for it to claim copyright in the automobiles that
appeared in the television programs and the motion pictures, despite the fact that the
Batmobile in the comic books prior to the 1966 television show did not look like the
Batmobile in the television program.
In Exhibit A to the FAC, DC has only listed two comic books that existed
prior to the television program,Batman comic #170, andDetective Comics #337,
both from March 1965. Attached to the Request for Judicial Notice as Exhibits 9
and 10 are true and correct copies of those pages from Batman #170 and Detective
#337 in which the Batmobile is depicted.
Detective #337 only has one partial view of the Batmobile. But in Batman
#170, which has multiple frames showing the Batmobile, even a careful look shows
that there is nothing about the car that would be copyrightable. Furthermore, the
Batmobile depicted in Batman #170 does not even look like the 1966 Batmobile.
Nor can DC use images of the Batmobile that were used in comic books after
1966 to claim copyright to the Batmobile. As set forth above, DC is not the
copyright owner to the television program and did not have a Batmobile that looked
like the 1966 Batmobile prior to the shows debut. If, after the show debuted, DC
motion pictures. If it were, it would have certainly included that information inExhibit A to the FAC.
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artists used the 1966 Batmobile as a guide for the new Batmobile in the comic book,
that would simply constitute a derivative work.
The copyright in a compilation or derivative work extends only to the material
contributed by the author of such work, as distinguished from the preexisting
material employed in the work, and does not imply any exclusive right in the
preexisting material. The copyright in such work is independent of, and does not
affect or enlarge the scope, duration, ownership, or subsistence of, any copyright
protection in the preexisting material. Durham v. Tomy, 630 F.2d 905, 909 (2nd
Cir. 1980).
InDurham v. Tomy, plaintiff and defendant were rival toy manufacturers who
each made toy figurines based on the famous Disney characters, Mickey Mouse,
Donald Duck and Pluto. Tomy claimed Durham was infringing its copyright to the
toys. Durham sued for a declaratory judgment that it was not violating Tomys
rights and Tomy counterclaimed for copyright infringement. Durham at 907. The
court determined that since Tomy was simply copying the famous images of Mickey
Mouse, Donald Duck and Pluto, Tomys work was not original enough to claim
copyright. One look at Tomy's figures reveals that, in each, the element of
originality that is necessary to support a valid copyright is totally lacking. [Citations
Omitted] The three Tomy figures are instantly identifiable as embodiments of the
Disney characters in yet another form: Mickey, Donald and Pluto are now
represented as small, plastic, wind-up toys. Id. at 908-909.
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While DC can certainly claim copyright to the drawings and the story
incorporated in these comic books, it cannot claim copyright to the pre-existing
Batmobile design when it merely copies the 1966 Batmobile into its own comic
books (assuming, arguendo, that the court first finds that automobile designs are
copyrightable.)
VI. THE 1966 BATMOBILE AND THE 1989 BATMOBILE WERESUBJECT TO DESIGN PATENTS THAT HAVE LONG SINCE
EXPIRED.
As a final reason why the FAC fails to state a cause of action for copyright
infringement in the cars, the court may take notice that both the 1966 Batmobile, the
1989 Batmobile, and the 1995 Batmobile were all subject to design patents which
have expired.
In 1966, George Barris, the creator of the 1966 Batmobile, filed for and obtained
a design patent on the Batmobile, (Patent No. DES 205,998). In 1990, DC Comics
obtained a design patent on the 1989 Batmobile (Patent No. DES 311,882). And in
1996, DC Comics obtained a design patent on the 1995 Batmobile (Patent No. DES
375,704). . Copies of these patents are attached as exhibits 11, 12, and 13. Each of
these patents was valid for a term of 14 years and therefore, each of these patents has
expired (in 1980, 2004 and 2010, respectively).
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First, the fact that DC Comics obtained the patents on the 1989 and 1995
Batmobiles would indicate that DC understands and agrees that automobile designs
are not copyrightable and are not protected under copyright law.
And second, by filing for a design patent, DC Comics understood that its
protection for these designs was limited to the 14 years. DC Comics had its 14 years
of protection under the patent laws. Now that the patents have expired, Mr. Towle
and anyone else, has the right to exploit the designs set forth in those patents.
VII. PLAINTIFF SHOULD BE ALLOWED TO AMEND THE COMPLAINTONLY ON CERTAIN NARROW CONDITIONS
While the right to amend the complaint is usually liberally granted, the court
should note that Plaintiff has already filed an amended complaint. This was after an
earlier meet and confer with Defendants counsel regarding the exact same issues
that arose in the FAC. If the court agrees that DC Comics cannot state a cause of
action for copyright infringement of an automobile design, then if Plaintiff is given
leave to amend it should be required to specifically state 1) precisely what copyrights
it reasonably believes Defendant infringed; 2) if Plaintiff believes that Defendant
sold or manufactured a product other than an automobile that infringes Plaintiffs
copyright, then it should state exactly what that product is. Plaintiff should not be
allowed to take advantage of the liberal pleading rules, to simply state vague
allegations of infringement (i.e., allegations that Defendant sold other merchandise
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which incorporate the DC Comics Copyrighted Designs FAC 25) without putting
Defendant on notice on precisely what he is accused of selling.
VIII. CONCLUSIONWhile it may be amusing to have a case involving the Batmobile, the fact is, this
case is extremely serious to Mr. Towle. His livelihood is making custom cars. He
has relied on the public records showing the expiration of the design patents and the
well settled principals that automobiles are not copyrightable to create his business.
By falsely claiming that the Batmobiles are protected by copyright, and threatening
damages in the complaint of up to $150,000 per act of infringement (FAC, p. 15),
DC Comics is trying not only to wrongly stop Mr. Towle, but to send a chilling
message to other custom car manufacturers, that they will face a similar fate, should
they try to sell replica Batmobiles, even though the activity is entirely legal.
For this reason it is extremely important that this court not let DC go forward
with the infringement claim if it agrees that the Batmobile is uncopyrightable.
Otherwise, DC will simply use its vastly superior financial position to force Mr.
Towle to stop selling a perfectly legal product, and will chill others from doing the
same. DCs actions constitute copyright misuse and should not stand.
Date: December 16, 2011 Law Office of Larry Zerner
By: ____________________
Larry Zerner
Attorney for Plaintiff
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J. Andrew Coombs (SBN 123881)[email protected] L. Drey (SBN 250235)J. Andrew Coombs, A Prof. Corp.517 East Wilson Avenue, Suite 202Glendale, California 91206Telephone: (818) 500-3200Facsimile: (818) 500-3201
Attorneys for Plaintiff DC Comics
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DC Comics,Plaintiff,
v.
Mark Towle, an individual and d/b/aGotham Garage, and Does 1-10,inclusive,
Defendants.
)
)))))))))))))
Case No. CV11-3934 RSWL (OPx)PLAINTIFFS OPPOSITION TODEFENDANTS MOTION TODISMISS
DATE: January 25, 2012TIME: 10:00 amCOURTROOM: 21
BEFORE THE HONORABLERONALD S.W. LEW
DC COMICS V. TOWLE: OPPOSITION TO MOTION TO DISMISS
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INTRODUCTION
Defendant Mark Towle, an individual and d/b/a Gotham Garage (Defendant),
is a willful infringer who brings this unfounded motion in a premature and misguided
attempt to evade liability for his improper activities. Defendant blatantly infringes
upon Plaintiff DC Comics (Plaintiff or DC) famous Batman-related copyrights,
trademarks and other rights in connection with his manufacture, advertising, sale and
distribution of admittedly unlicensed replica Batmobile vehicles. Plaintiffs First
Amended Complaint clearly pleads the requisite elements for its copyright
infringement cause of action and more than adequately apprises Defendant of the
legally cognizable claims against him under which Plaintiff seeks to recover. Despite
this, Defendant asserts that DCs claim for copyright infringement should be
dismissed under Fed. R. Civ. P. 12(b)(6).1
Plaintiff is the owner of valid copyrights in the Batmobile in all of its various
incarnations, as pled in the First Amended Complaint. Defendants attempt to
introduce extrinsic evidence in an attempt to undermine DCs ownership is improper,
but even were it allowed, it would at most create a question of fact and would in no
way warrant dismissal of Plaintiffs claim. Defendants argument regarding
preclusion of copyright protection for automobiles suffers from the same defect, as it
merely raises a question of fact as to which elements of the Batmobiles are not useful
articles subject to copyright protection. Finally, case law is clear that a design patent
even assuming that DC had obtained one on the Batmobile does not preclude
protection under copyright, contrary to Defendants completely unsupported
argument.
Defendants motion is without basis. It improperly relies on evidence extrinsic
to the pleadings, and even were that evidence to be considered, at most Defendant has
raised issues of disputed fact. As this does not come remotely close to meeting the
1Defendant does not move to dismiss Plaintiffs trademark infringement, unfair
competition under the Lanham Act, and unfair competition under Californiascommon law claims.
DC COMICS V. TOWLE: OPPOSITION TO MOTION TO DISMISS
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standard under FRCP 12(b)(6), the Motion to Dismiss Claim of Copyright
Infringement Pursuant to FRCP 12(b)(6) (Motion) should be summarily denied.
STATEMENT OF FACTS
As alleged in the First Amended Complaint, the sole document properly before
the Court,2
Plaintiff is the creator and publisher of the highly successful and well-
known Batman universe, which includes such characters as Batman, The Riddler, Two
Face, Catwoman, The Penguin, and The Joker, among others, as well as various
identifiable elements such as the Bat Emblem and the Batmobile vehicle. First
Amended Complaint, Docket No. 13, filed November 22, 2011 (FAC), at 6-7.
Throughout the life of the Batman universe, the Batmobile, in particular, has
undergone many transformations and included various versions in design and style.
Id. at 7. The Batmobile has appeared in many formats, including, but not limited to,
comic books, movie serials, newspaper comic strips, radio shows, animated television,
series, live action television series, animated motion pictures, live action motion
pictures, and theatrical presentations. Id. at 7-8. Regardless of the format in which
it appeared and the owner to which the copyright for that overall format was
registered, Plaintiff has at all times reserved all copyright and trademark rights to the
Batman characters and elements contained therein, specifically including the
Batmobile, and is the owner of the copyrights to the various Batmobile versions. Id.
at 11-13.
In violation of Plaintiffs copyrights and trademarks, and in violation of various
laws of unfair competition, Defendant has manufactured and distributed full-size,
identical replicas of various versions of Plaintiffs Batmobile property. FAC at 1,
20, 22-56. Defendant incorporates the various fantastical and creative elements from
2Extraneous material is not appropriate on a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th
Cir. 1991).The Courts review is limited to the plaintiffs complaint. In re Autodesk, Inc. Sec.Litig., 132 F. Supp. 2d 833, 837 (N.D. Cal. 2000) citing Allarcom Pay Television,Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9
thCir. 1995).
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Plaintiffs designs of the Batmobiles into his replicas and markets his designs as
Batmobiles to the general public. See id. at 7-9, 11, 15, 25-26, 33-34. Defendant
is fully aware of Plaintiffs rights in and to the Batmobile vehicles, and yet he
continues to persist in his illegal business, asserting that his actions are protected by
rights that he knows full well do not exist. Id. at 20, 26.
ARGUMENT
I. Legal Standards
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim, the court must presume all factual allegations of the complaint to be
true and draw all reasonable inferences in favor of the nonmoving party. Usher v.
City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Importantly, the Federal
Rules do not require a claimant to set out in detail the facts upon which he bases his
claim. To the contrary, all the rules require is a short and plain statement of the
claim that will give the defendant fair notice of what the plaintiffs claim is and the
grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957). Further,
should questions of fact exist as to the elements of the underlying claim, dismissal is
improper. Cook, Perkiss & Liehe, Inc. v. Southern California Collection Service, Inc.,
911 F.2d 242, 245 (9th
Cir. Cal. 1990) citing Rennie & Laughlin, Inc. v. Chrysler
Corp., 242 F.2d 208, 212 (9th
Cir. 1957).
Moreover, the Courts review under Fed. F. Civ. P. 12(b)(6) is limited to the
contents of the First Amended Complaint. In re Autodesk, Inc. Sec. Litig., 132 F.
Supp. 2d 833, 837 (N.D. Cal. 2000) citing Allarcom Pay Television, Ltd. v. Gen.
Instrument Corp., 69 F.3d 381, 385 (9th
Cir. 1995). The Court cannot consider
material outside of the First Amended Complaint to assess its sufficiency in stating a
claim upon which relief can be granted. Levine v. Diamanthuset, Inc., 950 F.2d 1478,
1483 (9th
Cir. 1991).
Finally, should the Court grant Defendants Motion and dismiss Plaintiffs
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would be futile. Cook, Perkiss & Liehe, Inc., 911 F.2d at 246-47. In determining
futility, the Court must examine whether the complaint could be amended to cure the
defect requiring dismissal without contradicting any of the allegations of [the]
original complaint. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
II. Plaintiffs First Amended Complaint Sufficiently Pleads a Cause of Action
for Copyright Infringement.
Plaintiff has alleged the requisite elements of a copyright infringement claim.
Copyright infringement is established by showing (1) ownership of the copyright and
(2) violation of an exclusive right by the defendant. 17 U.S.C. 501(a); Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
Cir. 2006); A & M Records v.
Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
Defendant does not dispute that he manufactured and distributed the various
versions of the Batmobile identified in Plaintiffs First Amended Complaint. See
Notice of Motion and Motion to Dismiss Claim of Copyright Infringement Pursuant to
FRCP 12(b)(6), Docket No. 15, filed on December 16, 2011 (Motion), generally;
see also 17 U.S.C. 106 (granting to the copyright owner the exclusive rights of
reproduction and distribution, among others). Rather, Defendants entire argument
hinges on whether Plaintiff owns enforceable copyrights in the Batmobile vehicles
such that Defendants conduct constituted infringement. See Motion, generally.
Plaintiff has alleged sufficient facts in its First Amended to Complaint to establish its
ownership of the copyrights in and to the Batmobile vehicles such that Defendants
Motion is properly rejected or, alternatively, leave to amend should be granted to
better address any purported defects.
A. Plaintiff Owns all Intellectual Property to the Batmobile.
Plaintiff has sufficiently pled its ownership to the copyrights in and to the
various versions of the Batmobile. Specifically, Plaintiff has pled that it is the creator
of the Batmobile, licensing its use to third-parties in connection with various motion
pictures, television programs, and other merchandising avenues. FAC at 6-14, 17.- -
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At all times since the Batman universes inception, Plaintiff has reserved all copyright
and trademark rights to the Batman characters and elements contained therein,
specifically including the Batmobile, and is the owner of the copyrights to the various
Batmobile versions. Id. at 11-13.
Defendant improperly attempts to introduce extrinsic evidence not properly
considered on a motion to dismiss, alleging that this evidence demonstrates that
Plaintiff does not own copyrights in the Batmobile. See Request for Judicial Notice,
Docket No. 16, filed December 17, 2011. However, none of this evidence consists of
registrations specifically for the Batmobile nor do any of the registrations pre-date
Plaintiffs original creation of the Batmobile. See id.; see also FAC at 7 & Ex. A.
In fact, other courts have specifically found that Plaintiff is the owner of the
copyrights in and to the characters and elements represented in the 1966 Batman
television series, despite not being the registered the owner for the television series
itself. See White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1518 citing Carlos V.
Lozano, West Loses Lawsuit over Batman TV Commercial, L.A. Times, Jan. 18, 1990,
at B3 (describing Adam Wests right of publicity lawsuit over a commercial produced
under license from DC Comics, owner of the Batman copyright).3
Even were this
evidence properly before the Court, at the very most it merely raises issues of fact as
to the ownership of the Batmobile, a matter not properly before the court on a motion
to dismiss. See Cook, Perkiss & Liehe, Inc., 911 F.2d at 245 citing Rennie &
Laughlin, Inc., 242 F.2d at 212 (dismissal is not proper where questions of fact exist).
B. The Batmobile, and the Expressive Elements Contained Therein, Is a
Copyrightable Work of Art.
While automobiles (in their entirety) may be considered useful articles not
protected by copyright, Defendants Motion utterly ignores the issue of separability of
non-functional, artistic elements of Plaintiffs Batmobiles from the underlying vehicle.
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3
Full text available at: http://articles.latimes.com/1990-01-18/local/me-291_1_adam-west (last visited January 3, 2012). For the Courts convenience, a copy of thejudicially-referenced article is attached hereto as Appendix A.
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Regardless of whether the vehicle as a whole constitutes a useful article, copyright
protection still exists for the design elements contained therein or thereon that can by
physically or conceptually separated from the underlying useful article. Leicester v.
Warner Bros., 232 F.3d 1212, 1219, n.3 (9th Cir. 2000); Chosun Intl, Inc. v. Chrisha
Creations, Ltd., 413 F.3d 324, 328 (2d Cir. 2005); Norris Indus. v. Intl Tel. & Tel.
Corp., 696 F.2d 918, 923 (11th
Cir. 1983); see also 17 U.S.C. 101.
Specifically, copyright protection has been extended to the artistic and non-
functional elements of automobiles, particularly those used in connection with film,
television, or other creative works. See Halicki Films, LLC v. Sanderson Sales &
Mktg., 547 F.3d 1213, 1224-25 (9th
Cir. 2008) (summary judgment granted in favor of
car company creating replicas of car featured in motion picture reversed in order to
determine extent of copyright protection for the vehicle). Whether there exist such
design elements on an otherwise useful article such that copyright protection is
afforded to those elements is an issue of fact not appropriately decided on a motion to
dismiss. Fabrica Inc. v. El Dorado Corp., 697 F.2d 890, 893 (9th
Cir. 1983); Kikker
5150 v. Kikker 5150 United States, LLC, 2004 U.S. Dist. LEXIS 16859, at **26
(N.D. Cal. Aug. 13, 2004) (separability of potentially copyrightable elements on
utilitarian motorcycles could not be determined as a matter of law and required
determination by a trier of fact in an evidentiary hearing).
C. A Design Patent Does Not Preclude Separate Copyright Protection.
Finally, Defendant cites no authority supporting his proposition that design
patents filed on the Batmobile vehicles4
specifically preclude the existence of
concurrent copyright protection. On the contrary, most jurisdictions have rejected the
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4
Were the facts relating to these design patents developed, it would become clear thatsome of these design patents were rogue filings by third parties who did not own anyrights in Batmobiles. Design Patent D205998 was filed by George Barris, who washired by Twentieth Century Fox (Fox) to design a Batmobile for the 1960stelevision series. However, DC has reserved all rights to the Batmobile in its contractswith Fox and the ABC network. Indeed, the text of the Barris/Fox Batmobile contractat http://www.1966batmobile.com/contract.htm provides that Barris rights are subjectto any and all right, title and interest of National Periodical Publications, Inc. [DCspredecessor] . . . in and to said Batmobile features in said design.
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7
theory that one must elect between copyright and patent protection, specifically
including the Court of Customs and Patent Appeals. In re Yardley, 493 F.2d 1389,
1395-96 (C.C.P.A. 1974) ([W]e do not think that the constitutional provision requires
an election. The Congress, through its legislation under the authority of the
Constitution, has interpreted the Constitution as authorizing an area of overlap where
a certain type of creation may be the subject matter of a copyright and the subject
matter of a design patent. We see nothing in that legislation which is contradictory
and repugnant to the intent of the framers of the Constitution. Congress has not
required an author-inventor to elect between the two modes which it has provided for
securing exclusives rights on the type of subject matter here involved.); see also Dam
Things from Denmark v. Russ Berrie & Co., 173 F. Supp. 2d 277, 283 (D.N.J. 2001)
vacated and remanded on other grounds by Dam Things from Denmark v. Russ Berrie
& Co., 290 F.3d 548 (3d Cir. 2002) (A review of case law interpreting the election
doctrine reveals that most jurisdictions have rejected it.).
Moreover, while not formally deciding the issue, the Supreme Court has
specifically noted that [n]either the Copyright Statute nor any other says that because
a thing is patentable it may not be copyrighted. Mazer v. Stein, 347 U.S. 201, 217, 98
L. Ed. 630, 74 S. Ct. 460 (1954). Thus, the existence of design patents, even were it
established that they filed and owned by DC, does not preclude copyright protection
for the Batmobile vehicles.
CONCLUSION
For all of the foregoing reasons, Plaintiff respectfully requests Defendants
Motion be denied in its entirety.
DATED: January 4, 2012 J. Andrew Coombs, A Professional Corp.
By: __/s Nicole L. Drey__________________J. Andrew CoombsNicole L. Drey
Attorneys for Plaintiff DC Comics
Case 2:11-cv-03934-RSWL-OP Document 18 Filed 01/04/12 Page 8 of 10 Page ID #:174
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DC COMICS
Plaintiff,
v.
MARK TOWLE, an individualand d/b/a Gotham Garage,and DOES 1-10, inclusive,
Defendants.
)))))))))))
CV 11-3934 RSWL (OPx)
ORDER re: Defendant MarkTowles Motion toDismiss Claim ofCopyright InfringementPursuant to FRCP12(b(6)[15]
On January 25, 2012, Defendant Mark Towles
(Defendant) Motion to Dismiss Claim of Copyright
Infringement Pursuant to Federal Rule of Civil
Procedure 12(b)(6) [15] came on for regular calendar
before the Court. The Court having reviewed all papers
submitted pertaining to this Motion and having
considered all arguments presented to the Court,NOW
FINDS AND RULES AS FOLLOWS:
As a preliminary matter, the Court hereby GRANTS in
Partand DENIES in Part Defendants Request for
Judicial Notice. The Court GRANTS Defendants request
1
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as it pertains to the copyright registration records
(Exhibits 4-9) and the design patents (Exhibits 12-14).
The Court finds that these documents are matters of
Public Record and appropriate for judicial noticepursuant to Federal Rule of Evidence 201. The Court
DENIES Defendants Request as it pertains to the
photographs of the Batmobile (Exhibits 1-3) and the
excerpts from the Comic Books (Exhibits 10-11). The
Court finds that the Complaint does not necessarily
rely on these items, nor are they matters of public
record. Parrino v. FHP, Inc., 146 F.3d 699, 70506
(9th Cir. 1998).
As to Defendants Motion, the Court hereby DENIES
Defendants Motion to Dismiss. Under Federal Rule of
Civil Procedure 12(b)(6), a dismissal can be based on
the lack of cognizable legal theory or the lack of
sufficient facts alleged under a cognizable legaltheory. Fed. R. Civ. P. 12(b)(6); see also Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). A party need not, however, state the legal
basis for his claim, only the facts underlying it.
McCalden v. California Library Ass'n, 955 F.2d 1214,
1223 (9th Cir. 1990).
In the present motion, Defendant has moved the
Court to dismiss Plaintiffs copyright infringement
claim. In its Complaint, Plaintiff alleges that
Defendant has been producing and selling unlicensed
replica vehicle modification kits based on vehicle
2
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design copyrights from Plaintiffs Batman property,
including various iterations of the fictional
automobile, the Batmobile.
In order to establish a successful claim forcopyright infringement, a plaintiff must establish the
following: (1) plaintiff owns the copyright for the
allegedly infringed material and (2) defendant violated
at least one exclusive right granted to the copyright
holder. 17 U.S.C 501(a); Perfect 10, Inc. v. Amazon.
com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2006). Here,
the Court finds that the Complaint pleads enough facts
to support both elements of a copyright infringement
claim.
For the first element of copyright infringement,
the Court finds that Plaintiff pleads sufficient facts
to support the assertion that it owns the copyrights to
the relevant Batmobiles in dispute. Plaintiffspecifically pleads that it created the comic book
character Batman and is in the business of licensing
copyrights associated with Batman. FAC 6-7.
Furthermore, the Complaint alleges that Plaintiff owns
all DC Comics Copyrighted Designs, which include the
Batman characters and their associated Batmobile
vehicles. FAC 11. Accordingly, because the
Complaint specifically pleads that Plaintiff owns DC
Comics Copyright Designs, the Court can reasonably
infer that Plaintiff owns the Copyright for the
Batmobiles in dispute. As such, the Court finds that
3
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Plaintiff has satisfied its pleading requirement for
the first element of copyright infringement.
As to the second element, the Court finds that
Plaintiff pleads sufficient facts to support theallegation that Defendant violated an exclusive right
of Plaintiffs copyright ownership. Federal copyright
law grants all copyright owners the exclusive rights to
reproduce and distribute products based on the owners
copyrights. 17 U.S.C. 106. In the Complaint,
Plaintiff adequately alleges that Defendant infringed
on Plaintiffs copyright by manufacturing,
distributing, and selling automobiles bearing
Plaintiffs copyrighted designs. FAC 25-26. In all,
the Court finds that the Complaint pleads sufficient
facts to support the two elements for Copyright
Infringement and thus is not appropriately dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6).Defendant argues that, regardless of the pleadings,
the copyright infringement claim should be dismissed
because the Batmobile and all its variations are not
copyrightable objects as a matter of law. The Court
finds, however, that Defendants argument lacks merit.
Defendant is correct that in general, the Copyright Act
affords no protection to useful articles or items
with an intrinsic utilitarian function such as
automobiles. Leicester v. Warner Bros., 232 F.3d 1212,
1216-17 (9th Cir. 2000). Defendants argument,
however, ignores the exception to the useful article
4
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rule, which grants copyright protection to non-
functional, artistic elements of an automobile design
that can be physically or conceptually separated from
the automobile. Id. at 1219, n.3. As the facts arepled in the Complaint, the Court can make the
reasonable inference that there may be non-functional
artistic elements of the Batmobile that may possibly be
separated from the utilitarian aspect of the
automobile. Klarfeld, 944 F.2d at 585 (9th Cir.
1991)(holding that all reasonable inferences must be
drawn in favor of the non-moving party in a motion to
dismiss). As such, the Court finds that the Batmobile
and all of its relevant embodiments are not, as a
matter of law, excluded from copyright protection.
In sum, based on the foregoing reasons, the Court
hereby DENIES Defendants Motion to Dismiss Claim of
Copyright Infringement Pursuant to Federal Rule ofCivil Procedure 12(b)(6).
IT IS SO ORDERED.
DATED: January 26, 2012
HONORABLE RONALD S.W. LEW
Senior, U.S. District Court Judge
5
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Ex. 33 1966 Batmobile Chart
CHART SHOWING PARTS OF THE 1966 BATMOBILE
Not in
ComicBook
Not-
Separable
Functio
nal
Not-
Artistic
Not on
Towle'sCar
Normally
Part of acar
Separate
Statementof
Undisputed
Facts #
Front grill
work
X X X X 20, 62
Jet engine
exhaust pipe
X X X X 21, 63
Exaggerated
rear Bat-fins
X X X X X 22, 64, 69
All switches
and hand-
throttle knob
for the non-
functional'turboelectric
drive'
X 23, 48
Bing-Bong
Warning Bell
X X X X 34, 61a
Bat-Light
Flasher
X 34
Mobile Phone
between the
seats with
Beeper and
Flashing light
X 49
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Not in
Comic
Book
Not-
Separ
able
Functio
nal
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of
Undisputed
Facts #
Ex. 33 1966 Batmobile Chart
'Batscope,'
complete with
TV-like
viewing
screen on the
dash, radar-
like antenna
with aimable
parabolic
reflector
outside, and
cockpit
controls
X X 24, 50, 65
Anti-theft
system,
consisting offlashing red
lights,
piercing
whistle, little
rockets built
into tubes at
the back of
the cockpit
that fire
straight up
with a fiery
whoosh
X X 26, 61b
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Not in
Comic
Book
Not-
Separ
able
Functio
nal
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of
Undisputed
Facts #
Ex. 33 1966 Batmobile Chart
Anti-fire
control
system,
consisting of
a flood of
foam from
secret nozzle
X X 27, 51, 61c
Turn-offswitch for
protection
systems
X X 28, 52, 61d
Radar-like
screen that
beeps and
blips and
points an
arrow as it
picks up
Robin's
directional
signal
X X 29, 53, 66
Mechanics for
emergencybat turn with
a red lever so
named on
dash, reverse
thrust rockets
X X 30, 54, 61e
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Not in
Comic
Book
Not-
Separ
able
Functio
nal
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of
Undisputed
Facts #
Ex. 33 1966 Batmobile Chart
beneath
headlights,
and ejection
parachute
mechanism at
rear
Bat-ray
projectormechanism
with lever on
dash so
named, hood
hydraulic
projector
device, and
ray comingfrom Bat-
Eyes
X X 31, 56, 61f
Portable fire-
extinguisher
X X 32, 58, 61f
Receiver and
sender
computer tobe installed in
trunk of
Batmobile
X X X 59, 61g
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Not in
Comic
Book
Not-
Separ
able
Functio
nal
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of
Undisputed
Facts #
Ex. 33 1966 Batmobile Chart
Luminescent
outline of Bat
symbol to
define symbol
at night
X 60, 61h
Bat face X X X 61i
Bat eyes X X X X 61j
Batwing Rear
Fenders
X X X X X 69
Double
Cockpit
X X X 70
Cockpit Arch X X X X 33, 71
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Not in
Comic
Book
Not-
Separ
able
Func-
tional
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of Undis-
puted
Facts #
Jet turbine
engine intake
grill
X X X X 73, 76
Mandible-style
front fenders
X X X X X 77
Rear sculptedfins
X X X X X 78
Interior monitor X X X X 79
Self-diagnostics
system
X 72a, 74
Spherical
bombs;
X 72b, 75
Chassis-
mounted
shinbreakers
X 72c, 76
Side-mounted
disc launchers
X 72d
Pair of forward-
facing
Browning
machine guns
X X 77
Central "foot"
capable of
X 72c
Page 49Ex. 34 1989 Batmobile Chart
CHART SHOWING PARTS OF THE 1989 BATMOBILE
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Not in
Comic
Book
Not-
Separ
able
Func-
tional
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of Undis-
puted
Facts #
Ex. 34 1989 Batmobile Chart
lifting the car
and rotating it
180 degrees
Armor-plated
body
X 72f
Oil slick
dispensers;
X 72g
Smoke emitters X 72g
Batmissile"
mode that sheds
all material
outside central
fuselage and
reconfigures
wheels and
axles to fit
through narrow
openings
X 72i
Side mounted
grappling hook
launchers
X 72j
Custom all-
black color
scheme with
blue highlights
X 72k
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Not in
Comic
Book
Not-
Separ
able
Func-
tional
Not-
Artistic
Not on
Towle's
Car
Normally
Part of a
car
Separate
Statement
of Undis-
puted
Facts #
Ex. 34 1989 Batmobile Chart
Four sets of
wheels
X 72l
Yellow or gold
hubcaps on
second and
fourth set of
wheels (from
front) onBatmissile
version of
Batmobile
X 72m
Telescopic
poles which
pop out from
sides of vehicle
X 72n
Batwing-like
fan spreads
which open
from
underneath
sides of vehicle
X 72o
Flame"shooting
exhaust
X X X X 78
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