Month: May 2025

When Your Car Is a Character

This post isn’t about cars with character. It’s about cars as characters. Specifically, the question whether it is possible to claim copyright protection in a car that appears in a book, movie, song, or other work.

Carroll Shelby Licensing v. Halicki et al.

If you’re like me, you’ve probably owned a car with character, or even several cars with character, at some time in your life. A used Volkswagen Jetta with a replacement alternator that was held in place with washers. An old Plymouth Duster with a floor and doors that rusted clean through before the slant-6 ever had a problem. A Honda Fit that . . . well, this is probably a good place to stop dredging up memories. This post isn’t about cars with character. It’s about cars as characters. Specifically, the question whether it is possible to claim copyright protection in a car that appears in a book, movie, song, or other work.

The Ninth Circuit Court of Appeals had occasion to address this very question in Carroll Shelby Licensing et al. v. Halicki et al, No. 23-3731 (9th Cir., May 27, 2025).

Gone in 60 Seconds and Sequela

In the 1974 movie, Gone in 60 Seconds, the protagonist is tasked with stealing forty-eight types of cars. He and his colleagues assign them names. They call the Ford Mustang with black stripes “Eleanor.” Action ensues.

Three movies incorporating elements of this one were made and released thereafter — The Junkman, Deadline Auto Theft, and a year 2000 remake of Gone in 60 Seconds. A car that was made to look like the Mustang in the original Gone in 60 Seconds appeared in these movies, as well. The message, “‘Eleanor’ from the movie Gone in 60 Seconds” was painted on its side.

Shelby contracted with Classic Recreations to produce “GT-500CR” Mustangs. Without going into all of the contractual and procedural details, the owner of the copyright in the first three movies eventually asserted a claim of copyright infringement, raising the question whether copyright can be claimed in “Eleanor,” the Ford Mustang car that appeared in the movies.

Character Copyrights

Fictional works generally are eligible for copyright protection. Sometimes copyright protection will extend to fictional characters within one as well. Mickey Mouse and Godzilla are examples.

NOTE: This blog post was not produced, sponsored or endorsed by Disney, and is not affiliated with Disney or any person, company or organization affiliated or associated with Disney.

The test for independent character copyright protection is set out in DC Comics v. Towle. In sum, the character must:

  1. have both physical and conceptual qualities;
  2. be “sufficiently delineated” to be recognizable as the same character whenever it appears; and
  3. be “especially distinctive” with “some unique elements of expression.”

The 9th Circuit Court of Appeals held that “Eleanor” failed to meet any of these criteria.

1. Physical and conceptual qualities

Eleanor had physical qualities, but the Court held that it lacked conceptual qualities. Conceptual qualities include “anthropomorphic qualities, acting with agency and volition, displaying sentience and emotion, expressing personality, speaking, thinking, or interacting with other characters or objects.” Shelby, supra. The character does not have to be human. It can be almost anything, so long as it has some of the above traits. Thus, the Batmobile could qualify.

The Court determined, however, that Eleanor the car lacked any of these conceptual qualities, likening her to prop rather than a character.

2. Sufficient delineation

Here, the Court determined that Eleanor lacked consistent traits. In some iterations, Eleanor appeared as a yellow and black Fastback Mustang; in others, as a gray and black Shelby GT-500 Mustang, or a rusty, paintless Mustang. The Court concluded that Eleanor was too lightly sketched to satisfy the “sufficient delineation” test.

3. Unique elements of expression

Having no regard at all for Eleanor’s feelings, the Court declared, “Nothing distinguishes Eleanor from any number of sports cars appearing in car-centric action films.” According to the Court, she was just a run-of-the-mill automobile. Accordingly, she failed the distinctiveness test.

Quiz

Just for fun, try your hand at applying the Towle test to determine which of these might qualify for copyright protection and which ones don’t:

  1. Chuck Berry’s Maybeline
  2. My Mother the Car
  3. Prince’s Little Red Corvette
  4. Chitty Chitty Bang Bang
  5. Christine
  6. KITT in Knight Rider
  7. The Magic School Bus
  8. Thomas the Tank Engine
  9. Gumdrop
  10. Dick Turpin
  11. Truckster in National Lampoon’s Vacation
  12. The Bluesmobile in The Blues Brothers
  13. The Hearse
  14. Herbie in The Love Bug
  15. The DeLorean in Back to the Future
  16. The Gnome-Mobile
  17. Ecto-1 in Ghostbusters
  18. Bessie in Doctor Who
  19. General Lee in The Dukes of Hazzard
  20. The Munster Coach in The Munsters
  21. Shellraiser in Teenage Mutant Ninja Turtles
  22. Benny the Cab in Who Framed Roger Rabbit?
  23. Lightning McQueen in Cars
  24. The Mystery Machine in Scooby-Doo
  25. The Gadgetmobile in Inspector Gadget
  26. Mustang Sally
  27. Killdozer
  28. Ivor the Engine
  29. Tootle
  30. Roary the Racing Car.

Give yourself 3,500 extra points if you are familiar with all of these references.

Points are not redeemable for value.

Concluding Thought

Even if a fictional character does not qualify for copyright protection, it might be protected as a trademark in some cases. The requirements for trademark protection are a subject for another day.

Read about other non-AI-related legal issues.

 

Photographers’ Rights

The Second Circuit Court of Appeals reversed a trial judge’s dismissal of a photographer’s copyright infringement complaint, holding that because “fair use” was not clearly established on the face of the complaint, the district court should not have dismissed the complaint sua sponte. Romanova v. Amilus, Inc.

Romanova v. Amilus, Inc., No. 23-828 (2nd Cir., May 23, 2025)

The Second Circuit Court of Appeals reversed a trial judge’s dismissal of a photographer’s copyright infringement complaint, holding that because “fair use” was not clearly established on the face of the complaint, the district court should not have dismissed the complaint sua sponte.

European grass snake photograph illustrating copyright infringement article by Cokato Minnesota attorney Thomas James

Photographer Jana Romanova created a photograph of a woman with a snake wrapped around her left hand and another snake crawling up her torso. (Not the one pictured here.) She licensed it to National Geographic Magazine for a single use. According to the complaint, Amilus, Inc. allegedly made a copy of the photograph and published it to its website. Romanova allegedly sent notifications demanding the removal of the photograph from the website. The defendant allegedly did not respond. This lawsuit followed.

The defendant allegedly did not appear or respond to the complaint, so Romanova moved for the entry of default judgment. Rather than grant a default judgment, however, the district court judge sua sponte ordered Romanova to show cause why the court should not dismiss the case on the grounds that the defendant’s use of the photograph was fair use. Although fair use is an affirmative defense, which defendants have the burden of asserting and proving, the judge opined that the fair use defense did not need to be pleaded because the judge believed the fair use defense was “clearly established on the fact of the complaint.“

Romanova appealed. The Second Circuit Court of Appeals reversed, effectively allowing the infringement claim to go forward.

Fair Use

In its decision, the Second Circuit Court of Appeals clarified how courts are to interpret and apply the four-factor “fair use” test outlined in the Copyright Act, 17 U.S.C. § 107 (purpose and character of the use; nature of the work; amount and substantiality of the portion copied; and the effect on the market for the work.)

The district court concluded that the defendant’s publication of the photograph communicated a different message than what the photographer intended. According to the district court, the purpose of the publication in the National Geographic was “to showcase persons in [her] home country of Russia that kept snakes as pets, specifically to capture pet snakes in common environments that are more associated with mainstream domesticated animals.” The district court found that the purpose of the defendant’s publication was to communicate a message about “the ever-increasing amount of pet photography circulating online.“

Apparently the district court was under the impression that the use of a copyright-protected work for any different purpose, or to communicate any different message, is “transformative” and therefore “fair use.” The Court of Appeals clarified that is not the case. In addition to alleging and proving the use was for a different purpose or conveyed a different meaning, a defendant seeking to establish a fair use defense must also allege and prove a justification for copying.

Examples of purposes that may justify copying a work include commentary or criticism of the copied work, or providing information to the public about the copied work, in circumstances where the copy does not become a substitute for the work. (See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202, 212 (2d Cir. 2015).) Copying for evidentiary purposes (such as to support a claim that the creator of the work published a defamatory statement) can also be a valid justification to support a fair use defense. Creating small, low-resolution copies of images (“thumbnails”) may be justified when the purpose is to facilitate Internet searching. (Perfect 10 v. Amazon.com, 508 F.3d 1146, 1165 (9th Cir. 2007). Facilitating blind people’s access to a work may provide a justification for converting it into a format that blind people can read. (Authors Guild v. HathiTrust, 755 F.3d 87, 97 (2d Cir. 2014).

The Court cited other examples of potential justifications for copying. The Court admonished, however, that the question whether justification exists is a fact-specific determination that must be made on a case-by-case basis.

[J]ustification is often found when the copying serves to critique, or otherwise comment on, the original, or its author, but can also be found in other circumstances, such as when the copying provides useful information about the original, or on other subjects, usually in circumstances where the copying does not make the expressive content of the original available to the public.

Romanova, supra.

The only “justification” the district court cited for the copying was that it believed the defendant merely wanted to illustrate its perception of a growing trend to publish photographs of people with pets. “Little could remain of an author’s copyright protection if others could secure the right to copy and distribute a work simply by asserting some fact about the copied work,” the Romanova Court observed. The defendant’s publication of the copy did not communicate criticism or commentary on the original photograph or its author, or any other subject, the Court held.

The Court held that the remaining three fair use factors also militated against a finding of fair use.

Sua Sponte Dismissal for “Fair Use”

Justice Sullivan filed a concurring opinion. He would have reversed on procedural grounds without reaching the substantive issue. Specifically, Justice Sullivan objected to the trial judge’s raising of the fair use defense sua sponte on behalf of a non-appearing defendant. Normally, if a complaint establishes a prima case for relief, the court does not consider affirmative defenses (such as fair use) unless the defendant asserts them. That is to say, fair use is an affirmative defense; the defendant, not the plaintiff, bears the burden of proof.

Conclusion

Appeals courts continue to rein in overly expansive applications of transformative fair use by the lower courts. Here, the Court of Appeals soundly reasoned that merely being able to articulate an additional purpose served by publishing an author’s entire work, unchanged, will not, by itself, suffice to establish either transformative use or fair use.