DC Comics v. Mark Towle et al

Filing 20

REPLY support MOTION to Dismiss First Cause of Action for Copyright Infringement 15 filed by Defendant Mark Towle. (Zerner, Lawrence)

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Larry Zerner (SBN 155473)
ZernerLaw
1801 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Attorney for Defendant Mark Towle,
An individual and d/b/a Gotham Garage

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DC Comics,

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Plaintiff,
v.
Mark Towle, an individual and d/b/a
Gotham Garage, and Does 1 – 10,
inclusive,
Defendants.

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Case No. CV11-3934 RSWL (OPx)
REPLY BRIEF RE MOTION TO
DISMISS CLAIM OF COPYRIGHT
INFRINGEMENT PURSUANT TO
FRCP 12(b)(6).
HEARING DATE: January 25, 2012
TIME: 10:00 a.m.
COURTROOM 21
BEFORE THE HONORABLE
RONALD S.W. LEW

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I. INTRODUCTION
Plaintiff’s argument in its’ Opposition to the Motion to Dismiss is that it must
own the copyright to the Batmobile simply because it says so, despite the fact that

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automobiles are not, and never have been, copyrightable. What Plaintiff does not

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want the court to do is to actually look at the automobiles in question or the comic

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books that allegedly give Plaintiff copyright in those automobiles. Plaintiff is aware

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that even a perfunctory glance at the photographs of the Batmobiles show that there

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is no possible claim for copyright in those designs. While Complaints are supposed
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to be read broadly, the court is not supposed to simply stick its head in the sand and

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accept Plaintiff at its word, when the allegations set forth in the complaint with
regard to copyright infringement are clearly without merit.
II. THE COURT MAY TAKE JUDICIAL NOTICE OF MATTERS NOT

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SUBJECT TO REASONABLE DISPUTE

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Plaintiff takes great pains to try to prevent this court from reviewing the evidence

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presented in the Request for Judicial Notice. Plaintiff claims that the Court may only

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look at the first amended complaint and may not consider any outside material. This

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is an incorrect statement of the law. "A court may take judicial notice of 'matters of

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public record' without converting a motion to dismiss into a motion for summary

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judgment," as long as the facts noticed are not "subject to reasonable dispute." IntriPlex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. Cal. 2007)
quoting Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. Cal. 2001).

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All of the items in Defendant’s Request for Judicial Notice are matters of public
record and are not subject to reasonable dispute. The court can certainly take judicial
notice of the copyright certificates and the design patent registrations for the

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Batmobiles. By reviewing the designs of the Batmobiles, the Court can satisfy itself
that there are no separately copyrightable elements. They are just cars, and, like all
cars, not copyrightable.

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The Court may also certainly take judicial notice of the photographs of the
Batmobiles. First, the Court is in possession of the design patents, so it may simply
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Reply Brief re Motion to Dismiss

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compare the photographs to the design patents, to satisfy itself that the cars

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themselves are based on the design patents. Second, as Plaintiff alleges in the

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complaint how successful the Batman movies, comic book and franchise are, the

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look of the Batmobiles are clearly matters which are generally known within the trial

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court’s territorial jurisdiction or can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.
Finally, with regard to the comic books – these are the comic books which are

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specifically identified in Exhibit A to the First Amended Complaint as the basis for
Plaintiff’s claim that it owns the underlying copyright to the Batmobile. As they are
mentioned in the complaint, the court may consider them in ruling on the motion to

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dismiss. A glance at the comic books easily shows not only that the design of the
Batmobile in those comics does not look like the Batmobile that appeared in the
television show, but that there is nothing in the Batmobile design that could be

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copyrightable.
The court should also note that in its’ Opposition, Plaintiff attempts to introduce
as evidence a purported contract between George Barris (designer of the 1966

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Batmobile) and Twentieth Century Fox (Opposition, p. 6 fn.4). Plaintiff does not
attach a copy of this contract, but directs the Court to visit the website
www.1966Batmobile.com to review the text. Since Plaintiff treats the

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1966Batmobile.com website as a place where the court may take judicial notice of

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Reply Brief re Motion to Dismiss

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outside facts, Plaintiff certainly could not object if the court reviewed the hundreds
of photographs of the 1966 Batmobile at the website.1
III. IT IS IRRELEVANT WHETHER PLAINTIFF OWNS OTHER RIGHTS TO

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THE BATMAN CHARACTERS

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Plaintiff’s next argument is that since it owns various rights to the Batman

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characters, it must necessarily own the copyright to the Batmobile. But this is a

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logical fallacy. In this motion, Towle is not disputing Plaintiff’s copyright to the

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Batman, Joker, Riddler, Catwoman or Penguin. Nor is Towle claiming that Plaintiff
does not own the copyright in the comic books themselves. But copyright is created
by statute, and the Copyright Act specifically excludes protection for useful articles

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such as automobiles. It does not matter how famous the car is, or that a version of
the car may have appeared in a comic book. As long as Mr. Towle is copying an
automobile design (which is all he is accused of doing), he is not violating the

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Copyright Act and cannot be sued for copyright infringement.
IV.

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PLAINTIFF DOES NOT ALLEGE INFRINGEMENT OF
SEPARATELY COPYRIGHTABLE DESIGN ELEMENTS

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Plaintiff claims that the Motion to Dismiss should be denied because Defendant

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ignored the issue of separability of non-functional artistic elements of the Batmobile.
First, this is incorrect, the Motion to Dismiss specifically states that a review of the

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The court can also review the photographs of the 1955 Lincoln Futura which
George Barris used as the basis for the 1966 Batmobile.
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Reply Brief re Motion to Dismiss

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Batmobiles shows that there is nothing in them that would be considered severable.

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To constitute a severable part of the automobile, Plaintiff would have to show that

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there is some element of the cars that can be identified separately from the car design

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itself. See, H.Rep.No. 1476, 94th Cong., 2d Sess. 55 (1976), U.S. Code Cong. &

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Admin. News 1976, p. 5668. Plaintiff has not done so and cannot do so.2
Furthermore, Plaintiff’s reliance on Halicki Films, LLC v. Sanderson Sales &

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Mktg., 547 F.3d 1213, 1224-25 (9th Cir. 2008) to support its position that the car is

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copyrightable is misplaced. Halicki did not deal with whether a portion of the car
was severable. In Halicki, the question for the court was whether the car itself could
be protected when portrayed in a film as a character. Halicki at 1224. The court was

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not deciding whether the design of the car was copyrightable, but whether the
characteristics of the car as portrayed in the film were protectable, much like the
character of Rocky Balboa would be protected by copyright. Id.

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Plaintiff then cites Fabrica Inc., v. El Dorado Corp., 697 F.2d 890, 893 (9th Cir.

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1983); and Kikker 5150 v. Kikker 5150 United States, LLC, 2004 U.S. Dist. Lexis
16859, at **26 (N.D. Cal. Aug 13, 2004) for the proposition that the court may not

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decide whether or not a useful article contains protectable design elements on a
motion to dismiss, because this is always a question of fact. Plaintiff’s reliance on
these cases is misplaced.

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During the mandatory pre-motion meet and confer, Defendant’s counsel asked
Plaintiff’s counsel to identify what portion of the cars it considered to be severable
from the car itself and he was unable to do so.
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Reply Brief re Motion to Dismiss

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In Fabrica, the Court of Appeal upheld the district court’s granting a directed

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verdict to Defendant on Plaintiff’s claim of copyright infringement on the grounds

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that the works at issue were useful articles and thus not copyrightable. There was no

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discussion in the case about a motion to dismiss, nor any language that would

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support Plaintiff’s argument that deciding this fact on a motion to dismiss would be
inappropriate. Id.
In the Kikker case, again the court did not rule that the question of separability is

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always a question of fact. The court stated that because the Plaintiff had specifically

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delineated elements of the design that were entirely non-functional, the question was

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“close” but that it should be decided by the trier of fact. Id. The clear inference from

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the court’s decision is that had the question not been so “close” it would have ruled
on the issue.
In this case, Plaintiff has not made a showing that any portion of the Batmobiles

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is non-utilitarian and severable from the design elements of the car. Without such a
showing, this court may certainly dismiss Plaintiff’s copyright claim.
V. THE DESIGN PATENTS CONFIRM THAT DC DOES NOT OWN THE

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UNDERLYING COPYRIGHTS
Plaintiff argues that the presence of a design patent does not automatically
preclude separate copyright protection. Even if that is correct, the design patents

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show that the creators of the Batmobiles that were used in the 1966 TV show and the
various motion pictures, were not DC artists, and that these designs did not originate
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Reply Brief re Motion to Dismiss

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in the comic books. As Plaintiff admits, George Barris, who holds the design patent

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to the 1966 Batmobile, was hired by Twentieth Century Fox to design the Batmobile.

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(See, Opposition, p. 6, fn. 4). The 1966 Batmobile was not created by a comic book

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artist working for DC, but instead, by a custom car manufacturer.

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But Plaintiff does not claim to have been assigned any copyright from George

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Barris, nor does it claim to hold the copyright to the television show. The only pre-

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1966 copyrights Plaintiff contends were infringed by Towle were the copyrights in

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the comic books Batman 170 and Detective 337. But the court may look at the
Batmobile in those comics and easily see that they are not the same as the Batmobile
in the television program. If Plaintiff wishes to claim copyright in the 1966

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Batmobile it must identify which registration covers that copyright. But clearly the
registrations in those two comic books would not give Plaintiff a copyright in the
1966 Batmobile.

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The same argument goes for the Batmobile in the 1989 Batman movie (designed
by the film’s production designer Anton Furst) and the Batmobile in the 1995
Batman Forever film (designed by the film’s director Joel Schumacher and

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production designer Barbara Ling). None of these designs first appeared in a DC
comic book. They each were original to the motion picture. Even if automobiles
were copyrightable, because Plaintiff does not allege that it owns the copyright to

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these motion pictures, it has not stated a claim for infringement.

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Reply Brief re Motion to Dismiss

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VI.

CONCLUSION

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Mr. Towle is in the business of making replica cars. That is not something that

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he needs to be ashamed of. There is nothing illegal about making a replica car once

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the design patent has expired. Congress intended this to be so when it specifically

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excluded automobile designs from copyright protection.
Plaintiff no doubt understands that automobiles are exempt from copyright
protection, But Plaintiff wants to be able to control all aspects of the Batman

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universe regardless of the law. So Plaintiff files meritless claims of copyright
infringement against Mr. Towle and others, knowing that the great disparity of
wealth between the two parties will make it very difficult for anyone to challenge

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their claim.
Mr. Towle must look to the Court to protect his right to sell a lawful product.
The evidence before the court shows that the Batmobile is just a car. Yes, it’s a

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fancy car, and yes, it looks cool. But so do Ferrari’s and Maserati’s, and Porsche’s.
The Batmobile does not gain special copyright protection because a version of it
appeared in a comic book.

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Further, the evidence shows that the Batmobile shown in the comic books, do not
look like the Batmobile in the television program and that nothing in the design of
the Batmobile in those comic books would grant Plaintiff an exception to the rule

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against the copyrightability of automobiles.

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Reply Brief re Motion to Dismiss

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Finally, the evidence in the public record shows that the Batmobiles that

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appeared in the 1966 television program and the motion pictures, were not created by
Plaintiff, and were not copyrighted by Plaintiff.
Accordingly, Mr. Towle respectfully requests that the court grant his motion to

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dismiss the claim of copyright infringement.
Date: January 11, 2012

Law Office of Larry Zerner
By: ____________________
Larry Zerner
Attorney for Plaintiff

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Reply Brief re Motion to Dismiss