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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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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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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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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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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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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



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:

Case 2:11-cv-03934-RSWL-OP Document 15 Filed 12/16/11 Page 1 of 18 Page ID #:111

Ex. 29 Page 10


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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


Ex. 29 Page 11


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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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-10 Motion to Dismis

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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



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.



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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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2


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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

copyright claim, leave to amend is generally liberally granted, unless amendment- -


3


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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.- -


4


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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.

- -


5

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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6

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


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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


Ex. 31 Page 39


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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


Ex. 31 Page 40


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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

Page 44


45/125

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 #


'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

Page 45


46/125

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 #


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

Page 46


47/125

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 #


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

Page 47


48/125

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 #


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

Page 48


49/125

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


50/125

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 #


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

Page 50


51/125

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 #


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

Page 51


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mark towle suit

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