Calling All Cars Named Eleanor! The Ninth Circuit Has Decided You’re Not Copyrightable After All

There are many stupid things about copyright law today, and one of them is how copyright law applies to characters. Because it shouldn't, at least not in the ways it does. Copyright can legitimately apply to expression, which is why it can restrict you from copying, for example, a book or movie, because those are fixations of expression. It could therefore also apply to a specific expression of a character as contained in one of those larger copyrightable works. But copyright is not supposed to apply to ideas more generally, and, indeed, per the First Amendment, it can't, because that would mean that copyright could block far too much expression, including that which is entirely original, if whoever had the idea inspiring it first could get a monopoly on anything resulting from that inspiration.

And yet, when it comes to characters, that constitutional limitation somehow disappears, because with character copyright the copyright holder is able to prevent any other expression of the character, including in ways they have never been expressed before. Because it would be one thing to say that a specific frame of a Batman comic could be off limits for others to copy, and reasonable, because there the copyright would apply to something that has already been expressed, but it's another thing entirely to say that any expression of Batman, including in ways it had never been expressed by the copyright holder, can also be off limits. Character copyright, as currently interpreted, gives copyright holders monopoly power over not just the literal expression of their character but the idea of their character in any way it may be expressed in the future, and by anyone.

Given this state of affairs, then, it is particularly important to have some limits on whether a character would be entitled to copyright in the first place, because if even flimsy, ill-defined characters could be copyrightable then some copyright holder would be able to prevent anyone else from being able to express anything using characters that might share some of the same rough contours with a character already in existence. But before this new decision by the Ninth Circuit in Carroll Shelby Licensing v. Halicki there were far fewer limits.

This case involves Eleanor the Car," which appeared in several movies connected with the Gone in Sixty Seconds" franchise. While there are some similarities between all the Eleanors, per the Ninth Circuit now, there weren't enough to render Eleanor copyrightable.

It used a test from the DC Comics v. Towle case to make this determination:

In Towle, we established a test to determine whether a character is entitled to copyright protection: (1) the character must have physical as well as conceptual qualities," (2) the character must be sufficiently delineated to be recognizable as the same character whenever it appears" and display consistent, identifiable character traits and attributes," and (3) the character must be especially distinctive" and contain some unique elements of expression."

And here the court determined that Eleanor failed each element of it. First, Eleanor had no conceptual" qualities. While the court recognized that inanimate objects could nevertheless be characters, here Eleanor the car exhibited no personality.

Eleanor, however, lacks any such conceptual qualities. Indeed, Eleanor has no anthropomorphic traits. The car never acts with agency or volition; rather, it is always driven by the film's protagonists. Eleanor expresses no sentience, emotion, or personality.4 Nor does Eleanor speak, think, or otherwise engage or interact with the films' protagonists. Instead, Eleanor is just one of many named cars in the films. In this way, Eleanor is more akin to a prop than a character. Accordingly, Eleanor fails at prong one of the Towle test.

Second, its visual qualities weren't persistent.

Turning to prong two of Towle, we ask whether Eleanor is sufficiently delineated to be recognizable as the same character whenever it appears" and display[s] consistent, identifiable character traits and attributes." [...] Here too, Eleanor fails. Across four films and eleven iterations in those films, Eleanor lacks consistent traits. For example, Eleanor's physical appearance changes frequently throughout the various films, appearing as a yellow and black Fastback Mustang, a gray and black Shelby GT-500 Mustang, and a rusty, paintless Mustang in need of repair. Indeed, the latter Eleanors are unrecognizable until introduced as Eleanor by the protagonists. Halicki's proffered Eleanor traits, moreover, only serve to further highlight Eleanor's inconsistencies. Halicki claims Eleanor is always incurring severe damage" and is hard to steal." But fewer than half of the Eleanors ever appear damaged at all, and the damage ranges from body damage incurred by a police chase, to cosmetic damage, to being entirely shredded for scrap. And of the Eleanors stolen by the films' protagonists, most were stolen with little difficulty. Halicki also claims that Eleanor is good at evading police" and surviving spectacular jumps." But these traits are more readily attributable to the films' protagonists driving the cars, not to Eleanor. In sum, Eleanor is too lightly sketched" to satisfy prong two of the Towle test.

And, thirdly, Eleanor wasn't particularly distinctive.

Nothing distinguishes Eleanor from any number of sports cars appearing in car-centric action films. Nor is the name Eleanor unique; rather, it is a common female name-the normalcy of which was the entire point of codenaming vehicles in the films. Eleanor is a stock" sports car and fails prong three of Towle.

In sum, the court concludes, Eleanor is but a prop and not a protectable character. Which is a good result that will help keep copyright holders, going forward, from locking up too many ideas for characters that can be as loosely described as Eleanor was because it applies the test in a way that can lead to a no" as an answer for whether such a flimsily-defined character can nevertheless be copyrightable.

The issue, however, is that this decision is the second major one considering whether Eleanor is copyrightable, and it was an earlier decision in a case in 2008 that lent credence to the idea that it was. And it was on the strength of that opinion that DC Comics v. Towle rested.

And far from being a random, esoteric case, DC Comics v. Towle was the case that came up with the crazy idea that the Batmobile-an inanimate object whose appearance changed radically over time-was nevertheless copyrightable. Worse, DC Comics v. Towle has ever since been providing the foundational support for other subsequent courts finding characters copyrightable. But now that this earlier conclusion has been undone, it undermines the basis for concluding that the Batmobile was itself copyrightable too.

This new Eleanor decision attempts to sidestep directly undermining the result from the Batmobile case, noting how the Batmobile tended to have certain distinctive aspects that Eleanor lacked, which might justify a different result on the copyrightability question in each case. For instance:

We noted in Towle that a character can still be protectable even if it lacks sentient attributes and does not speak (like a car)." This remains true. Sentience and the ability to talk are just two of many conceptual qualities of a character already discussed.

But the conclusion in Towle, that the Batmobile was copyrightable, rested on the idea that it did not take much to make a character copyrightable because so little had been needed to make Eleanor copyrightable back then. It is therefore not at all clear whether there is actually enough to make the Batmobile copyrightable, if one were to now reapply its own test in a way that is no longer shaped by the earlier Eleanor conclusion. And with its holding now undermined, its utility in supporting similar generous holdings on the copyrightability question for characters is no longer sound. As a result, even if the test for copyrightability that Towle expounded remains viable, this latest Eleanor case now teaches that it should be one that serves to limit character copyrightability, and not, as it has so far, expansively invited it.