Sunday, December 21, 2008

Can A Car Be a Copyrighted Character in a Film?

In Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213 (9th Cir. Nov. 12 2008), the Ninth Circuit Court of Appeals considered a dispute over the rights to merchandise the rights to a car named Eleanor in the 1974 film "Gone in 60 Seconds". The owner of the rights to the 1960 film licensed the rights to make a remake of the film (a "derivative work" under the Copyright Act). But the owner retained the right to "manufacture, sell and distribute merchandise utilizing the car known as 'Eleanor' from the Original [Gone in 60 Seconds]". The main question presented was whether the license agreement retained the rights to merchandise the "Remake Eleanor". The court found that the owner had retained the rights to "Remake Eleanor". An additional question presented was whether a car in a film could be a copyrighted character. The court discussed the caselaw distinguishing literary characters from comic book characters. Literary characters, such as Sam Spade are "difficult to delineate and may be based on nothing more than an unprotected idea". But comic book characters have "physical as well as conceptual qualities [and are] more likely to contain some unique elements of expression."
The Ninth Circuit found that "the Eleanor character"..."can be seen as more akin to a comic book character than a literary character." The court found that Eleanor "displays consistent, widely identifiable traits" and is "especially distinctive". The court based its finding on the fact that whenever a human tried to steal Eleanor, it became very difficult, and because the main human character referred to his long history with Eleanor. The Ninth Circuit remanded for a finding of whether Eleanor is entitled to copyright protection and for the district court to "examine whether Eleanor's physical as well as conceptual qualities and ... unique elements of expression" qualify Eleanor for copyright protection.
So the perfect gift for the copyright litigator who has everything? A DVD of the original 1974 and the 2000 Gone in 60 Seconds Spend your holidays discussing whether Eleanor is a copyrighted character. Compare Chitty-Chitty-Bang-Bang, Herbie the Love Bug and Stephen King's murderous Plymouth "Christine Plymouth "Christine". While Rudolph the Red-Nose Reindeer has my vote as a copyrighted character-component of Santa's sleigh, it is hard for me to see the copyrightable expression of a Ford Mustang outside its existance as an object, and no matter what the actions of humans surrounding the Ford Mustang may be, I can't see how that can be attributed to Eleanor.

1 comment:

Anonymous said...

I find this decision very thin as well. Herbie, Christine, Chitty Chitty Bang Bang and car KIT from Knightrider were all anthropomorphized and had personalities and distinct traits that responded to human action and input. They are arguably characters with the traits and expression that exist within their stories and meet the comic book character litmus test.

In the Gone films, Eleanor was a code name for a specific year and model of a Shelby Mustang. It did not refer to a single specific car. It referred to any 1967 GT500 that could be stolen to fill the delivery list of cars in the movie's plot line. In fact in the end of the 2000 remake film, Nicolas Cage's character was presented with a second "Eleanor" apart from the one that was "Hard to Steal" in the film. This Eleanor was purchased with the intent to restore it thereby loosing one of the main traits "Hard to Steal."

I would draw the analogy to the Tin Lizzy, a colloquial term referring to the entire Ford Model T line of cars. It could be argued that Eleanor refers to 1967 GT500 line of cars produced by Ford/Shelby.