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Marvel, DC Lose ‘Superhero’ Trademarks After Failing To Respond To Cancellation Petition

from the super-duper dept

We have a hero in our midst, one that is responsible for freeing up the term “superhero” from its previous trademark imprisonment. If you don’t recall, Scott Richold is a British comic artist who produces the Superbabies line of comic books. Richold applied for a trademark for his comic only to find it opposed by both DC and Marvel. The two companies jointly held 4 trademarks to the term “superhero” and variations of that term. And if that strikes you as plainly absurd, given that the “superhero” is the name of an entire genre of fiction across many mediums, you’re certainly not alone.

As a result, Richold petitioned the USPTO to cancel those four trademarks, arguing that the terms have become generic. As detailed in a follow up post, I figured there were several ways that DC and Marvel might respond to the petition. They could have fought it, deploying a hefty legal war chest to try to simply bully Richold out of his attempt. Or they could have amicably released their marks, generating some amount of goodwill within the public. But I didn’t expect the companies to simply fail to respond to the petition entirely, which is exactly what happened.

As a result of the failure to respond, Richold moved for a default judgement, which would free the “superhero” term from trademark status and move it into the public domain. And, admittedly, to my surprise, the TTAB granted the default judgment.

A U.S. Trademark Office tribunal has canceled a set of “Super Hero” trademarks jointly owned by comic giants Marvel and DC at the request of a London-based comic book artist, according to a Thursday order.

The USPTO’s Trademark Trial and Appeal Board ruled for S.J. Richold’s Superbabies Ltd after Disney’s Marvel and Warner Bros’ DC did not file an answer to Superbabies’ request to invalidate the marks.

Interestingly, and somewhat frustratingly, the DC and Marvel sides of this equation aren’t responding to requests for comment. As a result, whether this failure to respond was part of a cost-saving plan in which the companies wouldn’t rack up legal fees for responses to what it knew would be a losing battle is unknown. Several commenters in previous posts suggested that might be what went on here, but we just don’t know. I would be surprised if that was indeed the case, but since most everything about this whole thing has surprised me so far, I suppose it’s possible.

But whatever the reason for the inaction on the part of DC and Marvel, the end result is that the term “superhero” and its variations are free once more for use across the different entertainment mediums.

Superbabies attorney Adam Adler of Reichman Jorgensen Lehman & Feldberg said in a statement that the ruling was “not just a win for our client but a victory for creativity and innovation.”

“By establishing SUPER HEROES’ place in the public domain, we safeguard it as a symbol of heroism available to all storytellers,” Adler said.

As it probably always should have been. Not all heroes wear capes, as the saying goes, so today we salute Scott Richold.

Filed Under: scott richold, superhero, superheroes, trademark, ttab, uspto
Companies: dc comics, disney, marvel, marvel comics, superbabies, warner bros. discovery

British Comic Artist Petitions USPTO To Cancel ‘Super Hero’ Trademark Held By DC, Marvel

from the a-real-superhero dept

It should come as no shock to anyone when I say that DC Comics and Marvel both behave in a very aggressive manner when it comes to all things intellectual property. These two companies have engaged in all kinds of draconian behavior when it comes to everything from copyright to trademark. But one thing that somehow escaped my attention all the years I’ve been writing for Techdirt is that those two companies also jointly hold a trademark, granted by the USPTO, for the term “Super Hero,” as well as several variants. You can visit that Wikipedia link to get some of the backstory as to how this all came to be, but, suffice it to say, that the term “super hero,” at this point in history, is obviously generic. Hell, it refers to an entire genre of movies, if nothing else.

Well, one comic artist in London is attempting to challenge that trademark with the USPTO, seeking to have it and its variants canceled entirely.

Scott Richold’s Superbabies Ltd told a USPTO tribunal, opens new tab that “Super Hero” is a generic term that is not entitled to trademark protection, according to a copy of the petition provided by Superbabies’ law firm Reichman Jorgensen Lehman & Feldberg.

Representatives for DC and Marvel did not immediately respond to requests for comment.

“By challenging these trademarks, we seek to ensure that superheroes remain a source of inspiration for all, rather than a trademarked commodity controlled by two corporate giants,” Superbabies’ attorney Adam Adler said in a statement.

Now, this is all coming about because DC Comics accused Superbabies Ltd. of trademark infringement when it caught whiff of the company’s own attempt to trademark its comic book name. But the idea that the term “Superbabies” or “Super Hero” could be monopolized for any market at all via trademark law is, at this point, absurd. And yet both DC and Marvel have wielded their trademarks many times in the past.

“DC and Marvel claim that no one can use the term Super Hero (or superhero, super-hero, or any other version of the term) without their permission,” the petition said. “DC and Marvel are wrong. Trademark law does not permit companies to claim ownership over an entire genre.”

I would argue that the term wasn’t particularly unique as an identifier back when it was first granted over 100 years ago and certainly isn’t now. When you hear the term, you might think of certain super heroes from either Marvel or DC. Or you might think about the many, many super hero characters out there that are not owned by those companies. The point is that the term is ubiquitous at this point.

Will the USPTO give serious consideration to canceling DC and Marvel’s joint trademark? I’m not sure, but it certainly should.

Filed Under: super hero, super heroes, trademark, uspto
Companies: dc comics, marvel

Bill Willingham Says Fables Is Released To The Public Domain, DC Comics Says It Most Certainly Is Not

from the to-public-domain-or-not dept

I don’t think I’ve ever had a story sent in to me more than Bill Willingham’s Substack/press release announcing that he was putting the Fables comic book property into the public domain, as part of a dispute he’s having with DC Comics.

As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.

If you know Techdirt, you know that we’ve always encouraged people to put works into the public domain (and to use the public domain). Every year we run a public domain game jam. We’ve long noted that anything of our own that we publish on Techdirt should be considered in the public domain, and you are free to do with it what you will. The reports we’ve published are generally in the public domain as well. When I published two short sci-fi stories in our larger collection of sci-fi stories about the future of work, I put them into the public domain as well (a few other stories in that collection are also public domain).

Willingham’s reasons for doing so are a bit more complex than ours, but he admits that he’s become disillusioned by our copyright and trademark laws recently, recognizing (as we’ve long pointed out), that they seem mostly designed to empower gatekeepers in ways that harm the creators themselves, rather than help them. From that he even has his own idea on how copyright should be reformed:

In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.

In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.

And thus, he decided to practice what he’s preaching:

Of course, if I’m going to believe such radical ideas, what kind of hypocrite would I be if I didn’t practice them? Fables has been my baby for about twenty years now. It’s time to let it go. This is my first test of this process. If it works, and I see no legal reason why it won’t, look for other properties to follow in the future. Since DC, or any other corporate entity, doesn’t actually own the property, they don’t get a say in this decision.

There’s also the… being mad at DC thing. He notes that when he originally signed his deal with DC, the company was good to work with, and whenever any problems arose, they were able to work things out. However, as Willingham puts it DC has “fallen into bad hands.” It seems that a part of that is Warner Bros. Discovery, which now owns DC. There have long been concerns that Warner Bros. Discovery is basically destroying what’s left of DC (while trying to wring extra cash out of it).

Elsewhere, Willingham noted that he had turned in scripts for Fables two years ago, and DC has basically dropped the ball on the property, so he’s freeing it for everyone else to use.

And… here’s where it gets complicated. Lots of people asked if he can actually do that, and the likely answer is that… we really don’t know. It may depend very much on the specific contracts Willingham has with DC Comics. It is possible that he signed a contract in which he retains the copyrights and trademarks. He certainly claims as much in his announcement:

The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

A few people have pointed to the notice on Fables indicating the copyright is jointly owned by both and that the trademark is owned by Willingham:

But… if you go digging into the copyright registration database… well… it’s messy. There are a bunch of registrations for Fables, though as I flip through them, many suggest that he assigned the copyright to DC. If that’s true, then… he doesn’t actually have the copyrights to free and his claim that he’s the sole owner of the IP is incorrect.

However, other registrations do list them as co-owners of the copyright, including what I believe is the original copyright registration for the original Fables series:

And… if that’s the case, then there’s potentially more legitimacy to Willingham’s decision. When there’s a jointly created work with multiple authors holding the copyright, each author is able to license out the work to others without gaining permission from the other authors. They just need to let the co-copyright owners know about it.

So… this is… messy. DC, for it’s part, says no fucking way does Willingham have the right to do this:

The Fables comic books and graphic novels published by DC, and the storylines, characters, and elements therein, are owned by DC and protected under the copyright laws of the United States and throughout the world in accordance with applicable law and are not in the public domain. DC reserves all rights and will take such action as DC deems necessary or appropriate to protect its intellectual property rights.

Which means, we’re likely to see some sort of legal fight. Well, that is if anyone actually takes Willingham up on the offer. Because of DC’s posturing here, it will likely scare off some from going forward with things.

Willingham notes that he told DC that he was going to do this, and also tried to get them to write clearer contracts (which suggests that the existing contracts are about as messy as many such contracts tend to be):

I gave them an opportunity to renegotiate the contracts from the ground up, putting everything in unambiguous language, and they ignored that offer. I gave them the opportunity, twice, to simply tear up our contracts, and we each go our separate ways, and they ignored those offers. I tried to go over their heads, to deal directly with their new corporate masters, and maybe find someone willing to deal in good faith, and they blocked all attempts to do so. (Try getting any officer of DC Comics to identify who they report to up the company ladder. I dare you.) In any case, without giving them details, I warned them months in advance that this moment was coming. I told them what I was about to do would be “both legal and ethical.” Now it’s happened.

I hope it is true that he has the rights, and that this is legitimate, because we need more works in the public domain.

For what it’s worth, Willingham also notes that he’s still bound by his contracts with DC that if he creates more Fables works, they have to go through DC, but since none of the rest of us are bound by that contract, we can do whatever we want. But, as he notes (entirely correctly!) copyright law is a fucking mess, and you’ll find copyright lawyers who will argue all sides of this:

Note that my contracts with DC Comics are still in force. I did nothing to break them, and cannot unilaterally end them. I still can’t publish Fables comics through anyone but them. I still can’t authorize a Fables movie through anyone but them. Nor can I license Fables toys nor lunchboxes, nor anything else. And they still have to pay me for the books they publish. And I’m not giving up on the other money they owe. One way or another, I intend to get my 50% of the money they’ve owed me for years for the Telltale Game and other things.

However, you, the new 100% owner of Fables never signed such agreements. For better or worse, DC and I are still locked together in this unhappy marriage, perhaps for all time.

But you aren’t.

If I understand the law correctly (and be advised that copyright law is a mess; purposely vague and murky, and no two lawyers – not even those specializing in copyright and trademark law – agree on anything), you have the rights to make your Fables movies, and cartoons, and publish your Fables books, and manufacture your Fables toys, and do anything you want with your property, because it’s your property.

I hope that is the case, but DC is making it clear that if anyone takes him up on that offer, they’re likely to take legal action, which might just (unfortunately) be enough to make sure that no one even tries.

But, without seeing the details of the contracts (and even if we had them, that wouldn’t mean any of this would necessarily be any clearer), it’s very difficult to tell who is really correct here. It’s even possible that some characters/plots/etc. are public domain, and some are not. Without the contracts, it just becomes a big ¯\_(ツ)_/¯.

Anyway, I’d be remiss if I didn’t at least mention that Fables itself is based on taking public domain characters from old fairy tales and folklore, and building storylines around them in modern day New York. It seems only fitting that they should be released to the public domain for others…

Filed Under: bill willingham, copyright, fables, public domain
Companies: dc comics, warner bros. discovery

DC Comics Goes To UK High Court Over Trademark Granted To Unilever For 'Wonder Mum'

from the mums-the-word dept

Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to “protecting” its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.

And this isn’t just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for “Wonder Mum” to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for “Wonder Mum” with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes:

A mother or mum has had one or more children, either because she gave birth to them or has brought up children, performing the role of their mother or mum. I consider that to characterise the word ‘mum’ as a subset of the word ‘woman’ and, on this basis, to conclude that they are highly similar is syllogistic reasoning. A woman is a human adult who was born female or who identifies as female. The word ‘woman’ does not tell one anything about relationships with others. In contrast and by definition, the word ‘mum’ means that that person has a particular relationship with another, or others. Its conceptual impact is one of a particular relationship with children, whereas the conceptual impact of ‘woman’ is that it informs others as to the gender identity of an adult human. Whilst both nouns denote a female, many women have had no children, but all mums have had or brought up children.

It went on from there, with the IPO ultimately deciding that there was no likelihood of confusion. The opposition therefore failed. Again, this is pretty common sense stuff. Nothing in Unilever’s use referenced Wonder Woman in any way at all. The idea here was to create a brand that celebrated hard-working moms. While Wonder Woman did apparently have a comic-child with Superman… you know what, I’m not going to even finish that stupid sentence because this is all very dumb.

And, yet, DC Comics wants to take that dumb now to the High Court.

DC is now appealing the decision at the High Court in London, claiming the IPO’s ruling was ‘perverse and unreasonable’.

Lawyers for the comic also argue that the cosmetics line would have damaging consequences and would allow ‘anyone to release a Wonder Woman movie or comic’, claiming ‘Mum’ is a subset of the word ‘Woman’.

That, of course, is not how copyright or trademark laws work. The IPO granting a trademark on “Wonder Mum” doesn’t suddenly make it legal for anyone to go make a Wonder Woman movie just by changing the name to Wonder Mum. That’s beyond silly. Silly enough that Unilever’s lawyers found the time to take a few shots of their own at DC Comics.

Denise McFarland, for Unilever, said there is no risk of the public muddling the two characters, particularly due to Wonder Woman’s ‘distinctive and unvarying features’ – including her minimalistic’ costume complete with high boots, a corset, and lasso and shield.

Ms McFarland added that, if DC’s arguments about ‘conceptual similarity’ were correct, then using phases such as ‘Wonder Aunt’ and ‘Wonder Niece’ would also have to be banned.

Frankly, I wouldn’t put it past DC Comics to try to do just that. But in the meantime, hopefully the High Court will slap DC Comics down yet again on this one.

Filed Under: likelihood of confusion, trademark, uk, ukipo, wonder mum, wonder woman
Companies: dc comics, unilever

AT&T Fires Hundreds Of DC, HBO Execs In Latest Example Of 'Merger Synergies'

from the Do-not-pass-go,-do-not-collect-$200 dept

Thu, Aug 13th 2020 06:18am - Karl Bode

This may be shocking to hear, but nearly all of the promises AT&T made in the lead up to its $86 billion merger with Time Warner wound up not being true.

The company’s promise that the deal wouldn’t result in price hikes for consumers? False. The company’s promise the deal wouldn’t result in higher prices for competitors needing access to essential AT&T content like HBO? False. AT&T’s promise they wouldn’t hide Time Warner content behind exclusivity paywalls? False. The “$15 TV service” the company repeatedly hyped as a byproduct of the deal? Already discontinued. The idea that the merger would somehow create more jobs at the company? False.

AT&T has laid off 41,000 employees just since it received its 2017, 42billiontaxcutfromtheTrumpadministrationfordoingabsolutelynothing(technically,lessthannothing,sinceitfiredcountlessemployeesandtrimmed2020CAPEXbyaround42 billion tax cut from the Trump administration for doing absolutely nothing (technically, less than nothing, since it fired countless employees and trimmed 2020 CAPEX by around 42billiontaxcutfromtheTrumpadministrationfordoingabsolutelynothing(technically,lessthannothing,sinceitfiredcountlessemployeesandtrimmed2020CAPEXbyaround3 billion). And this week, the company laid off another 600 employees across Time Warner, including employees at HBO and DC Comics:

“The moves are likely to cause anxiety at WarnerMedia, which has reorganized several areas of its business since being acquired by AT&T for about $85 billion in 2018. Since AT&T took over the company formerly known as Time Warner, top executives with years of oversight of distribution, programming and advertising sales have departed. Kilar?s ascension to the CEO role in May has only served to fuel more recalibration.”

Granted if you’ve watched the history of U.S. media and telecom consolidation, this should surprise nobody. The first year or two after such deals are usually filled with empty promises about how “nothing will change” (AT&T brass repeatedly promised Time Warner employees they would have ample resources and creative freedom), only to be followed up by everything changing, and, as is the case when a lumbering telecom monopoly jumps more fully into a creative business it doesn’t fully understand, often not for the better.

And while AT&T has hinted that much of this had to do with COVID-19, that’s not the case. Most of these moves were either planned for some time, or part of the company’s ongoing attempts to shed the massive debt accumulated from the company’s spending spree on DirecTV (2015) and Time Warner (2018). Both mergers were supposed to position AT&T as a dominant player in the online video and advertising space. Instead, AT&T has been losing paying TV customers hand over fist after a number of bungled decisions ranging from price hikes on price sensitive cord cutters to bungled streaming branding.

It was yet another example of the perils of a “growth for growth’s sake” mindset, blended with yet another example of how lumbering, government-pampered telecom monopolies like AT&T and Verizon just aren’t very good at this whole competition and innovation thing.

AT&T’s repeated missteps were bad enough that they resulted in an investor backlash, the “retirement” of former AT&T CEO Randall Stephenson, and a newfound focus on firing more people than ever to recover debt. As is often the case, lower and mid-level management has to pay the cost for years of higher level managerial dysfunction. As is also often the case, the majority of press outlets that were eager to parrot AT&T’s pre-merger promises are utterly absent when it comes time to tally the human cost of mindless merger mania.

Filed Under: layoffs, mergers, promises
Companies: at&t, dc comics, hbo, time warner

DC Opposes Trademark Application For 'Algorithmic Justice League' For Some Reason

from the where-are-the-good-guys? dept

DC Comics, the company behind some of our most beloved superheroes, has built a reputation for itself for playing the supervillain when it comes to intellectual property disputes. Chiefly at issue tends to be trademark law, which DC views as some kind of overarching right for it to not allow any other entity to hold a trademark that even remotely overlaps with its own established marks. DC has taken this to absurd levels, opposing trademark applications that couldn’t possibly be confused with its own properties, even as many of its marks are very, very well known.

This continues to the present. Most recently, DC has decided to oppose the trademark application for a group founded by MIT’s Joy Buolamwini to spotlight the negative consequences of certain technologies, which she dubbed The Algorithmic Justice League.

Buolamwini filed in 2017 for a US trademark on Algorithmic Justice League, saying she had used the name for more than a year on projects that “promote awareness of and combat bias in algorithms as used in artificial intelligence.” In June, DC lawyers filed to oppose the registration.

DC claims consumers may confuse the group’s work on AI algorithms with its superhero collective Justice League, founded in 1960 by Wonder Woman and six others. “Such false assumptions will cause injury and harm,” the company’s filing says. It cites 10 trademarks related to the Justice League that mostly predate Buolamwini’s application, covering such uses as comic books, movies, mouse pads, and “adhesive plastic bandages for skin wounds.”

DC’s own citations point to the absurdity in all of this. Namely that none of the marks held by DC remotely bleed into the work that Buolamwini is doing. The closest you could get would be the view that some members of the public might see her as a superhero in her own right, attempting to head off the dangers of AI and algorithms. Other than that, it’s difficult to see where the public is going to be confused between superheroes and this kind of technological research.

DC, as it typically does, goes to great lengths to point out that its marks are super-famous and therefore deserving of expanded protection.

Fictional beings capable of flight or freakish strength might seem hard to confuse with the real-world work of Buolamwini—whose abilities appear to be 100 percent human. To draw attention to the potential harms of AI technology she has written code, published academic research, and presented her findings in a TED talk, congressional testimony, and spoken word poetry.

Yet DC is a powerful foe, standing on reasonable legal ground. “The more famous the mark, the broader the protection,” says Alan Fisch, an intellectual property lawyer with the firm Fisch Sigler.

Labeling this as reasonable is probably a stretch. Famous or not, there are limits to the expanded protections available to well known trademarks. And, I would argue, DC’s Justice League marks are certainly different than its truly famous marks. Had, for instance, this group been called the Algorithmic Supermen, we might be having a slightly different conversation. But the deviation in the markets and the name chosen don’t lend themselves to claims of potential confusion.

But DC’s going to DC, I suppose. It would just be nice to see the company play superhero instead of villain for once.

Filed Under: algorithmic justice league, joy buolamwini, justice league, likelihood of confusion, trademark
Companies: dc comics

from the say-what-now? dept

This has been quite a week for wacky copyright issues. The latest is that the 9th Circuit (which specializes in nutty copyright cases, apparently) has ruled that the very concept of the Batmobile can be covered by copyright and that copyright is held by DC Comics. The issue came about because a guy named Mark Towle has an operation called Garage Gotham, where he would produce “Batmobiles” for people who want their own. DC Comics sued, claiming copyright and trademark infringement. The lower court said this was legit, and the appeals court has now agreed — saying that the Batmobile itself is effectively its own character and thus it can have a copyright in that “character.” As with other copyright cases about the copyright on “characters” you would think that this shouldn’t matter, because of the whole “idea/expression” dichotomy that says the copyright only is supposed to apply to the specific expression, rather than the general idea (i.e., you can copyright a story about time travel, but not the idea of time travel).

And yet… for whatever reasons, courts have decided that “characters” can be covered by copyright. And now that takes us to this latest ruling, issued by Judge Sandra Ikuta, who appeared to recognize that it was going to get attention, as it kicks off with the joke that plenty of uncreative journalists might stick in their headlines:

Holy copyright law, Batman! indeed. As the court notes — and as you’re probably aware — the Batmobile has changed quite a bit over the years, which raises more questions about what any copyright on the Batmobile itself might cover. For his part, Towle said that there couldn’t be any copyright on the vehicle (and that the suit was barred by laches — i.e., DC took too long to sue). Either way, the court says that the Batmobile is a character and that some characters within entertainment deserve copyright protection, as per prior court rulings. And, the court notes that this is not the first time someone has claimed copyright on a car as a character in a movie:

We have previously determined that an automotive character can be copyrightable…. In Halicki, we considered whether ?Eleanor,? a car that appeared in both the original 1971 and 2000 remake motion picture Gone in 60 Seconds, could be entitled to copyright protection as a character…. Considering Eleanor?s persistent attributes in both the original and remake of Gone in 60 Seconds, we concluded that Eleanor met some of the key factors necessary to qualify for copyright protection…. We first noted that Eleanor was more like a comic book character than a literary character given Eleanor?s ?physical as well as conceptual qualities.? We also stated that Eleanor ?displays consistent, widely identifiable traits and is especially distinctive.? (alteration, citation, and internal quotation marks omitted). We gave several examples of these traits. First, we noted that ?[i]n both films, the thefts of the other cars go largely as planned, but whenever the main human character tries to steal Eleanor, circumstances invariably become complicated.? Second, we noted that in the original, ?the main character says ?I?m getting tired of stealing this Eleanor car,?? and in the remake ?the main character refers to his history with Eleanor.? Despite this evidence of distinctive traits, we were sensitive to the fact that the district court had implied that Eleanor was deserving of copyright protection, but had not directly examined this ?fact-intensive issue.? Therefore, we remanded the issue to the district court to decide in the first instance.

And, the court notes, it didn’t matter that the car in the two films was totally different: “Halicki put no weight on the fact that Eleanor was a customized yellow 1971 Fastback Ford Mustang in one film, and a silver 1967 Shelby GT-500 in another.” It then points to a variety of other cases in which characters have been declared covered by copyright, including James Bond, Godzilla and Batman himself. From these cases, the court creates a “three-part test” for determining if a character deserves copyright protection:

First, the character must generally have ?physical as well as conceptual qualities.?…

Second, the character must be ?sufficiently delineated? to be recognizable as the same character whenever it appears…. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.

Third, the character must be ?especially distinctive? and ?contain some unique elements of expression.? … It cannot be a stock character such as a magician in standard magician garb…. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard.

Using that test, not surprisingly, the court finds that the very concept of the Batmobile deserves copyright protection.

First, because 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….

I recognize that the court is building off of caselaw here, but it’s difficult to see where or how this fits under the actual law. It seems like a totally made up standard.

And then we get to the big test: is the Batmobile, even in all its different designs and forms, “recognizable” as a single “character.”:

Second, the Batmobile is ?sufficiently delineated? to be recognizable as the same character whenever it appears… As the district court determined, the Batmobile has maintained distinct physical and conceptual qualities since its first appearance in the comic books in 1941. In addition to its status as ?a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime,? the Batmobile is almost always bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle. This 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. In the comic books, the Batmobile is described as waiting ?[l]ike an impatient steed straining at the reins . . . shiver[ing] as its super-charged motor throbs with energy? before it ?tears after the fleeing hoodlums? an instant later. Elsewhere, the Batmobile ?leaps away and tears up the street like a cyclone,? and at one point ?twin jets of flame flash out with thunderclap force, and the miracle car of the dynamic duo literally flies through the air!? Like its comic book counterpart, the Batmobile depicted in both the 1966 television series and the 1989 motion picture possesses ?jet engine[s]? and flame-shooting tubes that undoubtedly give the Batmobile far more power than an ordinary car. Furthermore, the Batmobile has an ability to maneuver that far exceeds that of an ordinary car. In the 1966 television series, the Batmobile can perform an ?emergency bat turn? via reverse thrust rockets. Likewise, in the 1989 motion picture, the Batmobile can enter ?Batmissile? mode, in which the Batmobile sheds ?all material outside [the] central fuselage? and reconfigures its ?wheels and axles to fit through narrow openings.?

Equally important, the Batmobile always contains the most up-to-date weaponry and technology. At various points in the comic book, the Batmobile contains a ?hot-line phone . . . directly to Commissioner Gordon?s office? maintained within the dashboard compartment, a ?special alarm? that foils the Joker?s attempt to steal the Batmobile, and even a complete ?mobile crime lab? within the vehicle. Likewise, the Batmobile in the 1966 television series possesses a ?Bing-Bong warning bell,? a mobile Bat-phone, a ?Batscope, complete with [a] TV-like viewing screen on the dash,? and a ?Bat-ray.? Similarly, the Batmobile in the 1989 motion picture is equipped with a ?pair of forward-facing Browning machine guns,? ?spherical bombs,? ?chassismounted shinbreakers,? and ?side-mounted disc launchers.? Because the Batmobile, as it appears in the comic books as well as in the 1966 television show and 1989 motion picture, displays ?consistent, identifiable character traits and attributes,? the second prong of the character analysis is met here.

Yes, “always containing the most up-to-date weaponry and technology” is somehow a character trait of the Batmobile. But that seems… weird. I mean whatever car James Bond gets in every Bond film has a similar trait. Does that mean the Bond cars are also covered by copyright.

And, again, how the hell do you settle this with the idea/expression dichotomy? Copyright is for specific expression and not general ideas, and yet this entire ruling is basically saying the idea of the Batmobile is covered by copyright.

Third, the Batmobile is ?especially distinctive? and contains unique elements of expression. In addition to its status as Batman?s loyal bat-themed sidekick complete with the character traits and physical characteristics described above, the Batmobile also has its unique and highly recognizable name. It is not merely a stock character.

In short: give your car a name, and you can convince a court that it is a character deserving separate copyright protections. The court tosses out Towle’s defense that because the Batmobile constantly changes in appearance that you can’t give the general “Batmobile” copyright power, but the court says (somewhat questionably) that it’s no different than the fact that James Bond sometimes changes clothes. Yes, really.

The changes in appearance cited by Towle resemble costume changes that do not alter the Batmobile?s innate characteristics, any more than James Bond?s change from blue swimming trunks (in Casino Royale) to his classic tuxedo affects his iconic character.

Here’s the thing: I could pretty much see if the court had decided simply that each of the individual designs of the Batmobile in the TV series and the movie deserved their own copyright for the decorative, non-useful elements of the automobile, and then found that the work infringed on those elements. That seems like a more reasonable argument (if a silly one, as I’ll get to in a moment). But that’s not what the court is ruling. It’s saying specifically that the very idea of the Batmobile is covered by copyright, and thus even if you were to design a Batmobile that met the basic criteria set out above, but which looked nothing like an actual depiction of the Batmobile in the comics, TV or movies, you could still be infringing on the copyright. That seems messed up.

It strikes me as bizarre that the court never even mentions the whole idea/expression dichotomy, which is supposed to be a key part of copyright law.

Now, even if we leave all this aside and say that it’s fine for DC to hold such a copyright, there’s a separate question: should it be going after this guy? And that seems pretty ridiculous as well. The people buying these replica cars are huge fans of the Batman TV series or movie. The reason they’re buying these replica vehicles is to show off that fandom and to freely promote the original work, drawing much more attention to it. Unless DC is magically planning to get into the car licensing business (really?), it’s hard to see why it feels the need to step in and shut this down, other than to piss off some Batman superfans (with money to burn). Is that really a wise use of DC’s legal resources?

Filed Under: 9th circuit, batman, batmobile, character, copyright, expression, idea, idea expression dichotomy, mark towle
Companies: dc comics

DC Comics Going After A Spanish Soccer Club With A Bat In Its Logo For Some Reason

from the holy-trademark-abuse,-batman! dept

When it comes to being IP bullies, DC Comics has built quite the reputation for itself. From its taking on the gravestone of a victim of child abuse in the name of protectionism to taking on BBQ joints because of a logo that includes a bat. That last historical example foreshadows this latest news, in which DC Comics decides to take on a Spanish soccer team for having the audacity to include a bat in its logo.

According to a report from Yahoo Eurosport, DC Comics is suing the Spanish soccer team Liga Giants Valencia over their logo, which apparently resembles Batman’s logo in that it also features a bat. Unfortunately, according to European reports, the bat has been a symbol used in Spain for about 800 years. There’s even a fucking Wikipedia page about it. And the soccer team’s bat logo has been in use since 1919, before Batman was first published.

Here’s the logo in dispute.

Do the two logos have similarities? Sure, but that says a great deal more about the general indistinctness of DC Comics’ mark than it does about any sort of malicious copying by the Valencia club. Add to that the fact that, even working with such a general shape and color scheme, there are distinct differences between these two marks and the many, many other Batman marks that have been registered in the past, and one wonders what DC Comics was thinking yet again with another silly trademark dispute. After all, were you to review every Batman logo that’s been registered as a trademark, a means for customers to identify a particular brand, you have to wonder if there hasn’t been a real attempt to simply trademark every possible iteration of a bat as a logo. And that makes me wonder why such a practice doesn’t invalidate the trademark altogether.

All this and we haven’t even mentioned yet that I’m fairly certain that DC Comics doesn’t own a soccer club anywhere, so I’m not even remotely clear on how these two logos are competing in the same marketplace with the potential to confuse the same potential consumers. Add to that the long-established use of a bat as a logo in the Valencia region and this looks like a losing proposition for DC Comics.

Probably, DC thought this dumbassery would fly under the radar because it’s happening Spain, which does not have its own official Has DC Done Something Stupid Today counter, but they’re wrong, because The Outhouse is going international!

It has been 0 days! Olé!

Olé!

Filed Under: bat, batman, confusion, football, logos, soccer, spain, trademark
Companies: dc comics, liga giants valencia

DC Comics Refuses To Let Superman Logo Adorn The Headstone Of A Young Child Who Was Starved To Death [Updated]

Please see update at the bottom

Superheroes: they’re awesome. While they are often conflicted, they stand for truth and justice, protecting the fictional masses from unseen evils without so much as a paycheck. You know, like Edward Snowden, but with masks and bikini briefs and whatnot. Children, in particular, love superheroes, because they’re still young enough to not yet have had their view of humanity deflated through the experience of living. Still, even for those reading the most tragic of stories, there is an important lesson to be learned: superheroes are awesome, but the people who own them aren’t.

You can’t meet Jeffrey Baldwin of Ottawa, because at five years old he was the victim of his own grandparents, who starved him to death. But if you could meet Jeffrey, he’d probably tell you all about Superman. See, Jeffrey loved the Man of Steel so much that members of his community that had never even met him were moved to provide for a memorial statue in his name, with the Kryptonian “S” on the boy’s chest. Todd Boyce, who had been taken with Jeffrey’s death and the testimony in his trial, tried to do the right thing and contacted DC Comics to get their blessing.

The request to the comic books publisher had been made by Todd Boyce, an Ottawa father who did not know the Baldwin family. Boyce was so moved by the testimony at the coroner’s inquest into Jeffrey’s death last year that he started an online fundraising campaign for the monument.

You already know what comes next, don’t you? DC Comics wrote a polite but still utterly infuriating reply that essentially said, “Nope!” This reply cited a “variety of legal reasons” that likely boils down to copyright and trademark rights. And, from DC’s standpoint, I’m sure they also considered the sudden flood of requests they’d get from people who would also like to have Superman’s logo on their headstones, family crests, and all the rest. But, seriously, we really couldn’t have figured out a way to get a little Superman on Jeffrey’s memorial statue? Superman was created over eighty years ago, but we’re still at a place where we can’t let a child have his hero moment, even in death?

For Boyce, it was a huge blow, as he felt the Superman aspect was a crucial part of the bronze monument, which will include a bench. The coroner’s inquest heard from Jeffrey’s father that his son loved to dress up as Superman.

“I’m sort of empathetic to (DC’s) point of view on this, but I feel very strongly that the image of Jeffrey is so powerful,” said Boyce. “It’s the image of a vulnerable boy dressed up as the most invulnerable character in the universe. So I just feel like there’s something lost if we change it.” Boyce said he understood DC’s stance, in that he felt they didn’t want the Superman character associated with child abuse.

That’s very understanding of Boyce, but what!?!? If DC’s legal reasons for this refusal have anything to do with not wanting the logo to be associated with child abuse, then we have some lawyers on our hands that are serious candidates for lobotomies. This is a child victim we’re talking about, the kind of person the fictional Superman would damn well have stood up for. It’s too bad Superman’s real-life owners don’t share those same convictions.

Update: And… as is often the case following public shamings, DC has now relented and will allow the use of the logo.

Filed Under: child abuse, copyright, dc comics, headstone, jeffrey baldwin, logo, superheroes, superman, tombstone, trademark
Companies: dc comics

Barnes & Noble Doesn't Get Digital DC Comics, Throws Hissy Fit

from the cutting-off-your-nose-to-spite-your-face dept

In a move that screams of a complete disconnect from reality, Barnes & Noble (B&N) has decided to remove over 100 DC comics from its shelves. This move is in reaction to DC giving Amazon exclusive e-publishing rights to the digital versions of those comics.

In a statement to CNN, Jaime Carey, B&N’s chief merchant, said:

Regardless of the publisher, we will not stock physical books in our stores if we are not offered the available digital format. To sell and promote the physical book in our store showrooms and not have the e-book available for sale would undermine our promise to Barnes & Noble customers to make available any book, anywhere, anytime.

Read that again. Since B&N did not get the rights to the digital version of the comics, it will be denying customers access to the physical comics. How exactly does this fulfill the promise of providing DC comics “anywhere, anytime”? How are comic fans who frequent B&N supposed to get these comics if the comics are not available in-store? This move certainly flies in the face of that promise.

With this move, B&N is hoping to ‘punish’ DC with fewer sales. In reality, this will only tick off its comic loving customers who will have to go to another store in order to buy these comics. While this move will probably make B&N feel better, it will not result in any real change to its partnership with DC. This is yet another company putting its own interests ahead of the interests of its customers. Much like those other businesses, this is going to bite them in the butt and they will end up backtracking soon.

Filed Under: comics, ebooks
Companies: amazon, barnes & noble, dc comics