Intellectual Property can be a legal minefield, especially to a layperson who doesn’t readily know the difference between patent, copyright and trademark. A recent decision from the 9th Circuit Court of Appeals (a Federal court that serves as an interim step between West Coast trial courts and the United States Supreme Court) has brought copyright law into the car-enthusiast realm where previously only trademark and occasionally patent issues were real concerns.
Stromberg 97 carburetor showing various patent numbers. Photo by Jim O’Clair.
Briefly, a patent exists to protect the design of a functional item. For example, the kicker assembly on a Stromberg 97 carburetor is stamped PAT. 1,583,959. That refers to a 1926 patent used in the design of the 97. While that patent was in force (it expired sometime between 1934 and 1946—hey, we’re not patent attorneys here!), it prevented anyone from using the design or a derivative of that design without permission of the patent holder. The idea behind patents is that, unlike trade secrets, they allow the public access to useful inventions after a certain period of exclusive use to the inventor.
A trademark is a non-useful identifying feature that is associated with a product. Car folks are undoubtedly familiar with the use of the term “Crescent wrench” to identify an adjustable wrench, or “Targa top” to describe a semi-convertible hard roof panel, both of which technically refer to products produced by the Crescent Tool Company and Porsche, respectively. A person or company can obtain trademark protection either through registration with the US Patent and Trademark Office or simply by association with a product over time—such as Ford’s longstanding use of “afterburner” taillamps in the 1950s and ‘60s, or the sextet adorning the rear of Chevrolet Impalas from 1958 to 1965.
The reason for protecting trademarks is that a person or company spends a long time building up public trust, and it’s not fair to let a competitor just piggyback on that trust. Worse yet, a confused consumer might be duped into paying extra for a product without realizing that it’s not the brand he or she has come to rely on. Car enthusiasts are likely familiar with language in catalogs indicating that brand names are used only for purpose of identifying proper fitment and not to indicate licensing by the original equipment manufacturer. That’s to avoid a claim of trademark infringement by indicating that the trademark is used only nominatively; that is—to name the thing.
On the flip side, when a manufacturer wants to properly benefit from the use of a trademark, it can license the trademark from its owner. Licensed products often cost more because the trademark owner is risking its reputation on the quality of the items so marked.
The Eleanor Mustangs were the subject of their own copyright lawsuit. Photo courtesy Mecum Auctions.
Now into the collector-car hobby comes copyright law. Copyright law is usually used to protect the creative aspects of non-functional things. Up to now, the only time a car aficionado might have encountered copyright in the hobby is buying reproduction Road Runner decals for a muscle-era Plymouth. But the 9th Circuit decision affirms what should have been obvious to any observer: Cars that are effectively characters in a movie or comic book are themselves copyrighted.
Examples? How about the Back to the Future Deloreans; the Eleanor Ford Mustang from Gone in 60 Seconds (already the subject of its own lawsuit on the matter); the Dukes of Hazzard Dodge Charger; or the ’58 Chevy, ’32 Ford, ’55 Chevy, and ’51 Merc from American Graffiti? Even the Bullitt Mustang or Smokey and the Bandit Trans Am are good candidates for protection.
Unless you’re in the business of mass-producing unlicensed movie-car knockoffs for sale, as was the defendant in DC Comics v Towle. It happens Mark Towle and his Gotham Garage enterprise were producing driveable cars that looked like the 1966 and 1989 versions of the Batmobile, selling for around $90,000 apiece.
The result is the same as though Gotham Garage was making model versions of the Hannibal Twin-8. The 9th Circuit makes no distinction, in fact, between building full-size, functional replicas and toys—repeatedly citing cases where toymakers were sued. Worse yet, said the court, Gotham Garage was advertising replica business by using DC Comics’ trademarks without permission—another reason for the lawsuit.
We don’t know of any instance where a hobbyist has been sued or even threatened for construction or ownership of a tribute car. Probably because copyright holders aren’t interested in the bad PR that comes from attacking fan art, even when it is bought and sold. By all appearances, this was normal litigation between businesses that is newsworthy only because it involves a beloved comic-book and movie franchise, not because it is an earthshaking change to copyright law.
So is the sky falling? Probably not. You can likely still build or own the Chitty Chitty Bang Bang replica of your dreams.