Monday, April 13, 2015

The Batmobile, Kryptonite and Duff Beer: Brand development and famous ancillary indicia

Using established ancillary indicia – things associated with a particular character, laden with goodwill, is a clever way of projecting a brand message. The hard work has already been done, after all: an audience recognises the brand immediately, and does not need to be taught what the brand means.

A short list of ancillary indicia laden with goodwill might include:

a. The invisible plane (Wonder Woman) (USA);
b. The TARDIS (Dr Who) (UK);
c. The bamboo-copter (Doraemon) (Japan);
d. The Law-Giver (Judge Dredd) (UK);
e. The Death Star (Star Wars) (US).

Each of these items carry with them significant reputation in each of their respective jurisdictions (and beyond) so as to be potentially protected as characters of themselves, and be capable of generating revenue for their respective owners through licensing.

But brand owners often do not like it when someone uses such ancillary indicia without premission.

In 2013, Warner Bros. commenced proceedings against California resident Mark Towle, who is the owner and operator of a car customizing service named Gotham Garage.

Towle’s company specialises in custom replicas of automobiles that are featured in films and TV shows, and it owes its name to one of its most popular works: Batmobile replicas.

Gotham Garage received a lot of attention for creating exceptional replicas of the Batmobile that was used in the iconic Batman TV series from the 1960s. Gotham Garage charged USD90,000 for each vehicle.

Towle’s defence was that the Batmobile is not protected by copyright law. This was because as a car, under U.S. copyright law, articles that have a utilitarian function (such as lamps, bathroom sinks, computer monitors, cars) cannot be protected bycopyright as a whole. Towle’s argument was that protection is only afforded to features that allow the articles to be “identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Towle also argued that a ruling in favor of Warner Bros. would set an unfavourable precedent, in encouraging car makers such as Toyota, Ford, Ferrarri, and Honda to publish comic books so as to obtain protection for articles that are not protectable.

The Court found for Warner Bros., citing that the Batmobile is protected by copyright because it is a character in and of itself, existing in both “two-and three-dimensional forms,” with its existence in three dimensional form a “consequence of the Batmobile’s portrayal in the 1989 live motion film and 1966 Television series.”