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May 8, 2013

When Superheroes and IP Law Collide

A recent _ continuing legal education program explored several intellectual property topics through the lens of superheroes and comic books. One of the topics discussed was protecting the costume, likeness and brand of characters such as Batman and Superman through copyright, trademark and other IP strategies.

Janet Fries, of counsel in the intellectual property practice group for Drinker Biddle & Reath LLP in Washington, D.C., weighed in on these issues.

What is covered by the copyright statute? Fries said coverage is afforded to literary, musical and dramatic works; pantomimes and choreographed dance works; pictorial, graphic and sculptural works; motion pictures and other audio-visual works; sound recordings; and architectural works. “The statute has that very specific list, and the trick then is to get something to fall into one of those enumerated categories,” Fries said.

The U.S. Copyright Office issues a fact sheet laying out that copyright does not protect mechanical or utilitarian aspects, Fries said. The fact sheet specifically mentions automobiles being precluded from copyright protection.

But what about the Batmobile? In a recent case, a California court determined that the Batmobile is protected, and it reached this conclusion by analyzing whether the car’s utilitarian aspects could be separated from its design aspects, and they could, Fries said. The court determined that what makes the Batmobile go — the useful aspects of the car — is different from the bat wings and the design. “The court went on to say that the Batmobile is a character and is protected as a character, and they mentioned that it’s like Godzilla and is protected in the same way,” Fries said.

When it comes to costumes, sometimes they are protected and sometimes they are not, Fries said. “Typically clothing obviously is pretty darn useful and would fall into that utilitarian category and not be protected by copyright,” she said. However, “sometimes people try to blur the line and create wearable art or soft sculpture that can be worn.”

In 1989’s Whimsicality Inc. v. Rubie’s Costume Co., that was what happened, Fries said. Ultimately, Whimsicality was found to have filed a bad faith application because it didn’t use the word “costume,” and in this case the costumes were not protected, she said.

Another case involving costumes is 2010’s Lyons Partnership v. D&L Amusement & Entertainment. “In this instance, the defendant was making adult costumes for parents to wear to parties with kids,” Fries said. “They were Bob the Builder costumes and Barney costumes.”

In this case, the court found that these costumes were protected by copyright law, Fries said. “The court looked at the costumes as images and seemed not at all bothered by any utilitarian components,” she said. The plaintiffs were awarded damages and an injunction.

“So what we’ve learned is, with regard to superheroes, their cars can be characters and their costumes can be images, or maybe not,” Fries said. “There’s been no Supreme Court ruling on any of these things, so it will be interesting to watch and see how these kinds of issues play out in future cases.”

This ABA CLE was sponsored by the Section of Intellectual Property Law Young Lawyers Action Group, Young Lawyers Division, Forum on the Entertainment and Sports Industries and Center for Professional Development.

A recent _ continuing legal education program explored several intellectual property topics through the lens of superheroes and comic books. One of the topics discussed was protecting the costume, likeness and brand of characters such as Batman and Superman through copyright, trademark and other IP strategies.

Janet Fries, of counsel in the intellectual property practice group for Drinker Biddle & Reath LLP in Washington, D.C., weighed in on these issues.

What is covered by the copyright statute? Fries said coverage is afforded to literary, musical and dramatic works; pantomimes and choreographed dance works; pictorial, graphic and sculptural works; motion pictures and other audio-visual works; sound recordings; and architectural works. “The statute has that very specific list, and the trick then is to get something to fall into one of those enumerated categories,” Fries said.

The U.S. Copyright Office issues a fact sheet laying out that copyright does not protect mechanical or utilitarian aspects, Fries said. The fact sheet specifically mentions automobiles being precluded from copyright protection.

But what about the Batmobile? In a recent case, a California court determined that the Batmobile is protected, and it reached this conclusion by analyzing whether the car’s utilitarian aspects could be separated from its design aspects, and they could, Fries said. The court determined that what makes the Batmobile go — the useful aspects of the car — is different from the bat wings and the design. “The court went on to say that the Batmobile is a character and is protected as a character, and they mentioned that it’s like Godzilla and is protected in the same way,” Fries said.

When it comes to costumes, sometimes they are protected and sometimes they are not, Fries said. “Typically clothing obviously is pretty darn useful and would fall into that utilitarian category and not be protected by copyright,” she said. However, “sometimes people try to blur the line and create wearable art or soft sculpture that can be worn.”

In 1989’s Whimsicality Inc. v. Rubie’s Costume Co., that was what happened, Fries said. Ultimately, Whimsicality was found to have filed a bad faith application because it didn’t use the word “costume,” and in this case the costumes were not protected, she said.

Another case involving costumes is 2010’s Lyons Partnership v. D&L Amusement & Entertainment. “In this instance, the defendant was making adult costumes for parents to wear to parties with kids,” Fries said. “They were Bob the Builder costumes and Barney costumes.”

In this case, the court found that these costumes were protected by copyright law, Fries said. “The court looked at the costumes as images and seemed not at all bothered by any utilitarian components,” she said. The plaintiffs were awarded damages and an injunction.

“So what we’ve learned is, with regard to superheroes, their cars can be characters and their costumes can be images, or maybe not,” Fries said. “There’s been no Supreme Court ruling on any of these things, so it will be interesting to watch and see how these kinds of issues play out in future cases.”

This ABA CLE was sponsored by the Section of Intellectual Property Law Young Lawyers Action Group, Young Lawyers Division, Forum on the Entertainment and Sports Industries and Center for Professional Development.

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