Mark Towle Suit

Page 1
Declaration of Larry Zerner

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Larry Zerner (SBN 155473)
Law Offices of Larry Zerner
1801 Century Park East, Ste. 2400
Los Angeles, CA 90067
(310) 773-3623
Email: Larry@ZernerLaw.com

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/a
Gotham Garage, and Does 1 10,
inclusive,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: CV11-3934 RSWL (OPx)

Declaration of Larry Zerner in Support
of Defendants Motion for Partial
Summary Judgment:

Date: January 30, 2013
Time: 10:00 a.m.
Courtroom: 3

Trial Date: March 26, 2013
Pre-Trial Conference: March 12, 2013
Discovery 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 attorney
of 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.

Page 2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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 the
Complaint, 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 and
confer 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).

Page 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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 was
covered 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 27
1
is a true and correct copy of Exhibit A to the
original complaint.
9. Attached hereto as Exhibit 28 is a true and correct copy of Exhibit A to the
First Amended Complaint.

1
Because the Joint Stipulation contains Exhibits 1-26, I am starting number at
Exhibit 27 to avoid confusion.

Page 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10. Attached hereto as Exhibit 29 is a true and correct copy of Defendants
Motion to Dismiss.
11. Attached hereto as Exhibit 30 is a true and correct copy of Plaintiffs
Opposition to the Motion to Dismiss.
12. Attached hereto as Exhibit 31 is a true and correct copy of the Courts Order
on Defendants Motion to Dismiss pursuant to Rule 12(b)(6).
13. Attached hereto as Exhibit 32 is a true and correct copy of DCs disclosure
pursuant 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 1966
Batmobile 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 1989
Batmobile 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

Page 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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 relevant
pages from DCs Responses to Special Interrogatories.
pages 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 pages
from the Deposition of Jay Kogan.
pages from George Barris Deposition.
20. DC did not produce pursuant to discovery requests or Rule 26(f) any
document 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 California
that the foregoing is true and correct.
Executed this 26
th
day of December 2012 in Los Angeles, CA.
/Larry Zerner/
Case 2:11-cv-03934-RSWL-OP Document 1 Filed 05/06/11 Page 18 of 25 Page 10 #:26
EXHIBIT A
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DC COMICS' COPYRIGHTED DESIGNS
Copyright Title of Work
Type of Work
RegIstration (Character)
lJC ComICS AntI-Pl1'acy UUlde
Batman
Robin
Txu 1-080-661
Suennan
Style Guide
Won erwoman
Supergirl
Justice League
VAu 1-059-478
DC ComIcs Style
Style Guide
Guide
TXu 513-455 Batman Returns Style Guide Style Guide
TX 3-316-665 DC ComICS Batman Style Guide Style Guide
.Batman No. 170, Mar. 1965 Penodicals
TX 5-593-461 Batman Monthly Publication
RE-628-244
lJetectIve ComlCs No. JJ'/, Mar.
Periodicals
1965
TX-3-402-770 DC ComICS presents Batman 3 D vIsual arts
Batman: the tenor of two-face
nondramatic ltterary
TX-4-183-766 works, computer
programs
The DC Comics guide to writing
nondramatlc ltterary
TX-5-871-232 works, computer
comICS
programs
TXu-532-372 DC ComICS style guide. vIsual arts
VA-776-450 DC ComICS Super Heros vIsual arts
VA-777-441
DC ComICS Heroes Pamt
visual arts
'n
l
Mar er book
VA-777-593
DC ComICS .Super Heroes: a
visual arts
giant co10nng book.
VA-795-718 DC Comics heroes
visual arts
sticker n.
VA-838-902 DC Comics Super Heroes. visual arts
VA-854-405
DC Comics SUber Heroes,
visual arts
gallery of eroes
nondramatic literary
TX-5-060-774 Batman & Demon works, computer
programs
VA-839-545
Batman & Mr. Freeze: SubZero-
visual arts
-chill out
DC Comics v. Towle, et al.: COl1ll1aint - 18 -
Page 6
Ex. 27
Case 2:11-cv-03934-RSWL-OP Document 1 Filed 05/06111 Page 19 of 25 Page ID #:27
2
3
4
. 5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Batman 3: the final battle Screenplay
PAu-I-865-982
StYle Guide TXu-838-199 Knight Force Batman
DC Comics v. Towle, et al.: COmplaint 19 -
Page 7
Ex. 27
Page 8
Ex. 28
Page 9
Ex. 28

- i -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Larry Zerner (SBN 155473)
ZernerLaw
1801 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: (310) 773-3623
Facsimile: (310) 388-5624

Attorney for Defendant Mark Towle,
An individual and d/b/a Gotham Garage



DC Comics,

Plaintiff,

v.

Gotham Garage, and Does 1 10,
inclusive,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV11-3934 RSWL (OPx)

NOTICE OF MOTION AND
MOTION TO DISMISS CLAIM OF
COPYRIGHT INFRINGEMENT
PURSUANT TO FRCP 12(b)(6).

HEARING DATE: January 25, 2012
TIME: 10:00 a.m.
COURTROOM 21

BEFORE THE HONORABLE
RONALD 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

- ii Motion to Dismiss

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1) Plaintiff is suing defendant for copyright infringement of an automobile
and automobile designs cannot be copyrighted.
2) Plaintiff is not, and does not claim to be, the copyright holder to the 1966
Batman 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

- iii Motion to Dismiss

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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

Ex. 29 Page 12

- iv Motion to Dismiss

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
Cases
Ashcroft 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
Statutes
17 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
OtherAuthorities
H.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
Ex. 29 Page 13

- 1 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

I. INTRODUCTION
It 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 by
copyright
Ex. 29 Page 14

- 2 Motion to Dismiss

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2) DC is not, and does not claim to be, the copyright holder to the 1966
Batman 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 BACKGROUND
As 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 book
business long ago.
Ex. 29 Page 15


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 DISMISS
Federal 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).
Ex. 29 Page 16


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 COPYRIGHTABLE
It 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
Ex. 29 Page 17


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.)
Ex. 29 Page 18


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
Ex. 29 Page 19


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 extend to 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).
Ex. 29 Page 20


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 COPYRIGHT
OWNER OF THE BATMAN TELEVISION SERIES OR ANY OF THE
BATMAN MOTION PICTURES.
Ex. 29 Page 21


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 series
2
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 the
first episode of the series, Hi Diddle Riddle. If the court would like the copyright
records for all 120 episodes, they can be provided. However, it does not appear to be
in dispute that DC Comics is not the copyright owner of the television series or the
Ex. 29 Page 22


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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, and Detective 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 in
Exhibit A to the FAC.
Ex. 29 Page 23


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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).
In Durham 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.
Ex. 29 Page 24


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 WERE
SUBJECT 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).
Ex. 29 Page 25


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 COMPLAINT
ONLY 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
Ex. 29 Page 26


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
which incorporate the DC Comics Copyrighted Designs FAC 25) without putting
Defendant on notice on precisely what he is accused of selling.

VIII. CONCLUSION

While 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
Ex. 29 Page 27
- i -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
J. Andrew Coombs (SBN 123881)
andy@coombspc.com
Nicole L. Drey (SBN 250235)
J. Andrew Coombs, A Prof. Corp.
517 East Wilson Avenue, Suite 202
Glendale, California 91206
Telephone: (818) 500-3200
Facsimile: (818) 500-3201
Attorneys for Plaintiff DC Comics
DC Comics,
Plaintiff,
v.
Gotham Garage, and Does 1-10,
inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV11-3934 RSWL (OPx)
PLAINTIFFS OPPOSITION TO
DEFENDANTS MOTION TO
DISMISS
DATE: January 25, 2012
TIME: 10:00 am
COURTROOM: 21
BEFORE THE HONORABLE
RONALD S.W. LEW
DCCOMICS V. TOWLE: OPPOSITION TO MOTION TO DISMISS
Ex. 30 Page 28
- 1 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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

1
Defendant does not move to dismiss Plaintiffs trademark infringement, unfair
competition under the Lanham Act, and unfair competition under Californias
common law claims.
Ex. 30 Page 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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

2
Extraneous 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 (9
th
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
th
Cir. 1995).
- -
2
Ex. 30 Page 30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 (9
th
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 (9
th
Cir. Cal. 1990) citing Rennie & Laughlin, Inc. v. Chrysler
Corp., 242 F.2d 208, 212 (9
th
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 (9
th
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 (9
th
Cir. 1991).
Finally, should the Court grant Defendants Motion and dismiss Plaintiffs
copyright claim, leave to amend is generally liberally granted, unless amendment
- -
3
Ex. 30 Page 31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 (9
th
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 (9
th
Cir. 2006); A & M Records v.
Napster, Inc., 239 F.3d 1004, 1013 (9
th
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
Ex. 30 Page 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 the
judicially-referenced article is attached hereto as Appendix A.
Ex. 30 Page 33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 (9
th
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 (11
th
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 (9
th
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 (9
th
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 vehicles
4
specifically preclude the existence of
concurrent copyright protection. On the contrary, most jurisdictions have rejected the
- -
6

4
Were the facts relating to these design patents developed, it would become clear that
some of these design patents were rogue filings by third parties who did not own any
rights in Batmobiles. Design Patent D205998 was filed by George Barris, who was
hired by Twentieth Century Fox (Fox) to design a Batmobile for the 1960s
television series. However, DC has reserved all rights to the Batmobile in its contracts
with Fox and the ABC network. Indeed, the text of the Barris/Fox Batmobile contract
at http://www.1966batmobile.com/contract.htm provides that Barris rights are subject
to any and all right, title and interest of National Periodical Publications, Inc. [DCs
predecessor] . . . in and to said Batmobile features in said design.
Ex. 30 Page 34
- -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 Coombs
Nicole L. Drey
Ex. 30 Page 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DC COMICS
Plaintiff,

v.
MARK TOWLE, an individual
and d/b/a Gotham Garage,
and DOES 1-10, inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 11-3934 RSWL (OPx)
ORDER re: Defendant Mark
Towles Motion to
Dismiss Claim of
Copyright Infringement
Pursuant to FRCP
12(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
Part and DENIES in Part Defendants Request for
Judicial Notice. The Court GRANTS Defendants request
1
Ex. 31 Page 36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 notice
pursuant 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 legal
theory. 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
Ex. 31 Page 37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
design copyrights from Plaintiffs Batman property,
including various iterations of the fictional
automobile, the Batmobile.
In order to establish a successful claim for
copyright 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. Plaintiff
specifically 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
Ex. 31 Page 38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 the
allegation 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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 are
pled 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 of
Civil 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
EX. 32 Page 41
1. Jay Kogan, Vice President Business & Legal Affairs: Publishing and
2
Intellectual Property, and Deputy General Counsel for DC Comics
3
2. Paul Levitz, former President and current writer for DC Comics
4
3. Ana de Castro, Warner Bros. Consumer Products
5
Plaintiff advises that each ofthe foregoing witnesses may be reached c/o J.
6
Andrew Coombs, A Professional Corporation.
7
Plaintiff also identifies the Defendant, his respective employees, customers and
8
third-party service providers as may be identified during the course of discovery as
9
potential witnesses in support of their claims.
10
B. DOCUMENTS
11
In accordance with Fed. R. Civ. P. 26(a)(I)(B), Plaintiff hereby provides the
12
following descriptions of categories of documents known to it at this time that may be
13
relevant to the disputed facts in this matter:
14
1. Copies of trademark and copyright registration certificates.
15
2. Defendant's business records and advertising materials.
16
3. Prior notices of infringing activity.
17
4. Products sold by Defendant (or photographs thereof).
18
5. Licensing agreements or contracts regarding rights in and to the
19
BATMOBILE.
20
These documents are located at J. Andrew Coombs, A P.C., 517 East Wilson
21
Avenue, Suite 202, Glendale, California 91206.
22
C. INSURANCE
23
Not applicable.
24
D. DAMAGES
25
In addition to injunctive relief, Plaintiff may seek any ofthe following
26
damages:
27
28
DC Comics v. Towle, et al.: Rule 26 Disclosures
-2-
EX. 32 Page 42
EX. 32 Page 43
Ex. 33 1966 Batmobile Chart
CHART SHOWING PARTS OF THE 1966 BATMOBILE

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 #
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
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 of
flashing 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
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-off
switch 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
emergency
bat turn with
a red lever so
named on
dash, reverse
thrust rockets
X X 30, 54, 61e
Page 46
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
projector
mechanism
with lever on
dash so
named, hood
hydraulic
projector
device, and
ray coming
from Bat-
Eyes
X X 31, 56, 61f
Portable fire-
extinguisher
X X 32, 58, 61f
Receiver and
sender
computer to
be installed in
trunk of
Batmobile

X X X 59, 61g
Page 47
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
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 sculpted
fins
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 49
CHART SHOWING PARTS OF THE 1989 BATMOBILE
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
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) on
Batmissile
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
I
2
3
4
5
6
7
8
9
andy@coombspc.com
nicole@coombspc.com
Glendale, Califomia 91206
Telephone: (818) 500-3200
FacsImile: (818) 500-3201
Attomeys for Plaintiff DC Comics
10
11
12
13
14
15
16
17
18
19
DC Comics,
Plaintiff,
v.
inclusive,
Defendants.
PROPOUNDING PARTY:
RESPONDING PARTY:
SET NO.:
Case No. Cll-3934 RSWL (OPx)
PLAINTIFF DC COMICS'
RESPONSES TO DEFENDANT
MARK TOWLE'S SPECIAL
INTERROGATORIES
Defendant Mark Towle
Plaintiff DC Comics
One
20
21
Plaintiff DC Comics ("Plaintiff') hereby responds, by and through its counsel
of record, to Defendant Mark Towle's ("Defendant") "SPECIAL
22
INTERROGATORIES" ("Interrogatories"), as follows:
23
These responses are made solely in relation to the above-captioned action, and
24
are proffered only for the purpose of responding to the Interrogatories. All responses
25
are subject to the objections noted below. Objections (including, without limitation,
26
27
28
objections to admissibility, relevance, propriety, confidentiality, hearsay and
materiality), which, if sustained at trial, would require the exclusion of any response
DC Comics v. Towle: Plaintiffs Responses to Defendant's Special - 1 -
Interrogatories Ex. 35 Page 52
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESPONSE TO INTERROGATORY:
Plaintiff objects to the interrogatory as vague and ambiguous, particularly to
the terms "entire" and "design." Plaintiff also objects to the interrogatOly as
improperly seeking a legal conclusion.
Subject to the foregoing objections and without waiving any rights, Plaintiff
responds as follows, specifically reserving the right to supplement this response as
discovery is ongoing: Plaintiff contends that it owns the copyright to the Batmobile,
a fictional device which has regularly appeared in the different media in which the
Batman character has appeared, including, but not limited to, any iteration of the
Batmobile appearing in the 1966 television series Batman.
INTERROGATORY:
2. Do YOU contend YOU own the copyright in the entire design of the
1989 BATMOBILE? (The 1989 BATMOBILE is the BATMOBILE that appeared in
the 1989 movie Batman directed by Tim Burton).
Plaintiff objects to the interrogatory as vague and ambiguous, particularly to
the terms "entire" and "design." Plaintiff also objects to the interrogatory as
discovery is ongoing: Plaintiff contends that it owns the copyright to the Batmobile,
a fictional device which has regularly appeared in the different media in which the
Batman character has appeared, including, but not limited to, any iteration of the
Batmobile appearing in the 1989 motion picture Batman.
INTERROGATORY:
3. Do YOU contend that there are separable, nonfunctional, artistic
elements of the 1966 BATMOBILE? If so, identify each separable, non-functional,
Interrogatories
Ex. 35 Page 53
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
miistic element of the 1966 BATMOBILE (either by describing that part of the car
or circling the pmi(s) on a photograph.)
Plaintiff objects to the intenogatory as vague and ambiguous, particularly as to
the tenns "separable, nonfunctional [and non-functional], aliistic elements."
Plaintiff also objects to the interrogatory as compound and in pmis and to that extent
in violation of Fed. R. Civ. P. 33(a)(l). Plaintiff further objects to the interrogatory
in that it is inelevant and not calculated to lead to the discovery of admissible
evidence on its use of the terms "separable, nonfunctional [and non-functional],
artistic elements" insofar as copyright protection for the 1966 BATMOBILE is based
on original, not artistic, expression. Plaintiff objects to this interrogatory as
discovery is ongoing: Yes.
The 1966 BATMOBILE is but one iteration ofthe Batmobile, a fictional
device which has regularly appeared in the different media in which the Batman
character has appeared. The 1966 BATMOBILE was built by George Barris, based
on designs and specifications supplied by Plaintiff's predecessor, National
Publications, for use in the television series broadcast on ABC TV between 1966 and
1968. The Batmobile is but one of the features of the television series which was
based on the fictional cast of characters and plots which were developed beginning
with a Detective Comics serial first published in 1939. Different, original, fictional
features of the Batmobile appeared in comic books entitled Batman beginning in
1941 and in various other media, including other comic book series, daily newspaper
syndication, a serial motion picture in 15 episodes and related miwork, merchandise
DC Comics v. Towle: Plaintiffs Responses to Defendant's Special - 6-
Interrogatories
Ex. 35 Page 54
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and advetiising material. Copyright in all pre-existing, original expression was
retained by Plaintiff.
Plaintiff's prior copyright in those original elements, specifically including
numerous features of the 1966 BATMOBILE, was reaffirmed by George Barris in a
license agreement between DC Comics and Barris Kustom Industries dated
December 14, 1988.
Plaintiff specifically identifies the following original, nonfunctional elements,
their selection and arrangement as copyrightable features of the 1966 BATMOBILE:
(1) the front grill work; (2) nonfunctional jet engine exhaust pipe; (3) exaggerated
rear Bat-fins; (4) all switches and hand-throttle knob for the nonfunctional "turbo-
electric drive"; (5) the "Bing-Bong Warning Bell" and "Bat-Light Flasher"; (6) the
Mobile Phone between the seats with Beeper and Flashing Light; (7) the "Batscope,"
complete with TV-like viewing screen on the dash, radar-like antenna with aimable
parabolic reflector outside, and cockpit controls; (8) anti-theft system, consisting of
flashing red lights, piercing whistle, little rockets built into tubes at the back of the
cockpit that fire straight up with a fiery whoosh; (9) anti-fire control system,
consisting of a flood of foam from secret nozzle; (10) turn-off switch for protection
systems; (11) radar-like screen that beeps and blips and points an arrow as it picks up
Robin's directional signal; (12) mechanics for emergency bat turn with a red lever so
named on dash, reverse thrust rockets beneath headlights, and ejection parachute
mechanism at rear; (13) bat-ray projector mechanism with lever on dash so named,
hood hydrolic projector device, and ray coming from Bat-Eyes; (14) portable f i r e ~
extinguisher; (15) receiver and sender computer to be installed in trunk of
Batmobile; (16) all Bat logos and symbols; (17) color of the Batmobile; and (18)
luminescent outline of Bat symbol to define symbol at night.
Interrogatories
Ex. 35 Page 55
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
~ I
22
23
24
25
26
27
28
Plaintiff also refers and incorporates in this response any specifications for the
reproduction of the 1966 BATMOBILE as contained in licensing agreements
produced pursuant to Defendant's Requests for Production.
INTERROGATORY:
4. Do YOU contend that there are separable, non-functional, mtistic
artistic element of the 1989 BATMOBILE (either by describing that pmt ofthe car
or circling the pmt(s) on a photograph.)
Plaintiff objects to the interrogatory as vague and ambiguous, particularly as to
the terms "separable, nonfunctional [and non-functional], artistic elements."
Plaintiff also objects to the interrogatory as compound and in parts and to that extent
in violation of Fed. R. Civ. P. 33(a)(1). Plaintiff further objects in that it is irrelevant
and not calculated to lead to the discovery of admissible evidence on its use of the
terms "separable, non-functional, artistic elements" insofar as copyright protection
for the 1989 BATMOBILE is based on original, not mtistic, expression. Plaintiff
objects to this interrogatory as improperly seeking a legal conclusion.
The 1989 BATMOBILE is but one iteration ofthe Batmobile, a fictional
character has appeared. The 1989 BATMOBILE was constructed by Anton Furst,
Tim BUlton, Terry Ackland-Snow, and John Evans for use in the 1989 motion
picture Batman. The Batmobile is but one of the features ofthe motion picture
which was based on the fictional cast of characters and plots which were developed
beginning with a Detective Comics serial first published in 1939. Different, original,
Interrogatories
Ex. 35 Page 56
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
fictional features ofthe Batmobile appeared in comic books entitled Batman
beginning in 1941 and in various other media, including other comic book series,
daily newspaper syndication, a serial motion picture in 15 episodes and related
artwork, merchandise and advertising material. Copyright in all pre-existing,
original expression was retained by Plaintiff.
DC specifically identifies the following original, nonfunctional elements, their
selection and an'angement as copyrightable features ofthe 1989 BATMOBILE: (1)
nonfunctional jet turbine engine intake grill; (2) mandible-style front fenders; (3) rear
sculpted fins; (4) interior monitor; (5) self-diagnostics system; (6) spherical bombs;
(7) chassis-mounted shinbreakers; (8) side-mounted disc launchers; (9) pair of
forward-facing Browning machine guns; (10) central "foot" capable of lifting the car
and rotating it 180 degrees; (11) armor-plated body; (12) oil slick dispensers; (13)
smoke emitters; (14) "Batmissile" mode that sheds all material outside central
fuselage and reconfigures wheels and axles to fit through narrow openings; (15) side-
mounted grappling hook launchers; (16) custom all-black color scheme with blue
highlights; (17) four sets of wheels; (18) yellow or gold hubcaps on second and
fourth set of wheels (from front) on Batmissile version of Batmobile; (19) telescopic
poles which pop out from sides of vehicle; (20) Batwing-like fan spreads which open
from undemeath sides of vehicle; and (21) flame"shooting exhaust.
INTERROGATORY:
5. If YOU contend that the entirety of the 1966 BATMOBILE is protected
by copyright, identify all persons who YOU contend were the designers of the 1966
BATMOBILE.
Plaintiff objects to the interrogatory as vague and ambiguous, patiicularly as to
the terms "entirety" and "designers." Plaintiff also objects to the interrogatory as
DC Comics v. Towle: Plaintiff's Responses to Defendant's Special - 9 -
Interrogatories
Ex. 35 Page 57
overbroad and unduly burdensome in that it seeks information which is neither
2
relevant nor reasonably calculated to lead to the discovery of admissible evidence.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERROGATORY:
6. If YOU contend that there are separable non-functional, artistic
elements of the 1966 BATMOBILE protected by copyright, identify all of the
designers of those parts.
Plaintiff further objects in that it is irrelevant and not calculated to lead to the
discovery of admissible evidence on its use of the terms "separable, nonfunctional
[and non-functional], artistic elements" insofar as copyright protection for the 1966
BATMOBILE is based on original, not artistic, expression.
Plaintiff objects to the intenogatory as vague, ambiguous, and compound.
Plaintiff also objects to the interrogatory as overbroad and unduly burdensome in
that it seeks information which is neither relevant nor reasonably calculated to lead
to the discovery of admissible evidence. Plaintiff further objects to the interrogatory
to the extent it seeks information protected by trade secret.
discovery is ongoing: Plaintiff identifies the following designers of separable,
nonfunctional, artistic elements of the 1966 BATMOBILE: Dick Sprang, Sheldon
Moldoff, Carmine Infantino and Curt Swan.
INTERROGATORY:
7. If YOU contend that the entirety ofthe 1966 BATMOBILE is protected
by copyright, identify the first comic book in which the 1966 BATMOBILE
appeared.
DC Comics v. Towle: PlaintitI's Responses to Defendant's Special - 10 -
Interrogatories Ex. 35 Page 58
2
3
the tenn "entirety." Plaintiff also objects to the interrogatOly to the extent it seeks
4
information which is publicly available.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERROGATORY:
8. IfYOU contend that there are separable, nonfunctional, artistic
elements of the 1966 BATMOBILE, identify the first comic book in which each part
appeared.
Plaintiff objects to the interrogatOly as vague and ambiguous, particularly as to
the terms "separable, nonfunctional, atiistic elements." Plaintiff also objects to the
intenogatory as compound and in parts and to that extent in violation of Fed. R. Civ.
P.33(a)(I). Plaintiff further objects in that it is irrelevant and not calculated to lead
to the discovery of admissible evidence on its use of the terms "separable,
nonfunctional, atiistic elements" insofar as copyright protection for the 1966
BATMOBILE is based on original, not artistic, expression. Plaintiff also objects to
the interrogatory to the extent it seeks information which is publicly available.
discovery is ongoing: Plaintiff identifies the following comic books in which
separable, nonfunctional, artistic elements of the 1966 BATMOBILE appeared:
Detective Comics #156 (Feb. 1950); Batman #164 (June 1964); Detective Comics
#341 (July 1965); World's Finest Comics #154 (Dec. 1965); and Batman #20 (Dec.
1943-Jan. 1944).
/II
/II
DC Comics v. Tov'I'le: Plaintiffs Responses to Defendant's Special - 11 -
Interrogatories
Ex. 35 Page 59
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERROGATORY:
bycopyright, identify all persons who YOU contend were the designers ofthe 1989
BATMOBILE.
the tenns "entirety" and "designers." Plaintiff also objects to the intenogatory as
overbroad and unduly burdensome in that it seeks infOlmation which is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence.
INTERROGATORY:
10. If YOU contend that there are separable non-functional, miistic
elements of the 1989 BATMOBILE protected by copyright, identify all of the
the telms "separable, non-functional, artistic elements." Plaintifffurther objects to
the intenogatory in that it is inelevant and not calculated to lead to the discovery of
admissible evidence on its use ofthe terms "separable, non-functional, artistic
elements" insofar as copyright protection for the 1989 BATMOBILE is based on
original, not artistic, expression. Plaintifffurther objects to the intenogatory to the
extent it seeks infOlmation protected by trade secret.
discovery is ongoing: Plaintiff identifies the following designers of separable,
nonfunctional, artistic elements ofthe 1989 BATMOBILE: Bob Kane, Jerry
Robinson, Dick Sprang, Jim Starlin, Bemie Wrightson; Mike DeCarlo; Tim Burton;
Terry Ackland-Snow; John Evans; and Anton Furst.
Interrogatories
Ex. 35 Page 60
2
3
4
5
6
7
8
9
10
11
12
13
14
IS
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERROGATORY:
by copyright, identify the first comic book in which the 1989 BATMOBILE
appeared.
Plaintiff objects to the interrogatory as vague and ambiguous, patiicularly as to
the term "entirety." Plaintiff also objects to the intenogatory to the exteht it seeks
infonnation which is publicly available.
INTERROGATORY:
12. If YOU contend that there are a separable, nonfunctional, artistic
elements ofthe 1989 BATMOBILE, identify the first comic book in which each part
appeared.
Plaintiff objects to the intenogatory as vague and ambiguous, patiicularly as to
the terms "separable, nonfunctional, atiistic elements." Plaintiff also objects to the
interrogatory as compound and in parts and to that extent in violation of Fed. R. Civ.
P.33(a)(1). Plaintifffuliher objects to the interrogatory in that it is irrelevant and not
calculated to lead to the discovery of admissible evidence on its use of the terms
"separable, nonfunctional, artistic elements" insofar as copyright protection for the
1989 BATMOBILE is based on original, not atiistic, expression. Plaintiff objects to
this interrogatory as improperly seeking a legal conclusion. Plaintiff also objects to
separable, nonfunctional, artistic elements of the 1989 BATMOBILE appeared:
Interrogatories
Ex. 35 Page 61
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Batman #5 (Spring 1941); Detective Comics #156 (Feb. 1950); Batman: The Cult
(1988); and Batman #408 (June 1987).
INTERROGATORY:
13. Please state all facts that SUppOlt your contention that YOU own
trademark rights for the word "BATMOBILE" for automobiles or the custom
manufacturing of automobiles.
the telm "automobiles." Plaintiff also objects to the interrogatory to the extent it
seeks information which is publicly available. Plaintiff further objects to the
interrogatory to the extent it seeks information which is in the possession of
Defendants. Plaintiff objects to the interrogatory to the extent it seeks infOlmation
protected by attomey-client privilege, work product, or trade secret.
discovery is ongoing: While Batman had always driven high-perfOlmance cars since
his introduction in Detective Comics #27 (May 1939), the term BATMOBILE wasn't
used until Detective Comics #48 (Feb. 1941), in which it referred to a non-stylized
vehicle modified with features, such as a "battering ram" nose, to assist Batman in
his pursuit of comic villains. The first truly stylized appearance of a BATMOBILE,
however, occurred later in Batman #5 (1941). This iteration ofthe BATMOBILE
was designed by Jerry Robinson with only a passing resemblance to cars of the time.
Since its introduction in 1941, the term BATMOBILE has been continuously
used and applied by DC Comics, or its predecessors-in-interest, in connection with
their comic books and associated merchandise. Given this ongoing and systematic
use, DC Comics has secured common law rights in and to the term BATMOBILE.
Additionally, DC Comics has various federally registered trademarks and
Interrogatories
Ex. 35 Page 62
vnUFlC,\ T10N
,\
.,
< .
.<
hl
It
14
PI
1'/
..
:. ..
I. Kopn, hJ\" Pl:Hn\111 DC C R"SPlHlS(S to
Dclendanl :-.Im"- rowte', ,md It-> (OJ)!":llts
I lUll to rl!;lk.:: Ihls v..:nfic:llt\1n for ,md nn hdlalf of I'[;untlll' DC
and 1mJ.ke this v..:ni'iC:3110t1 ft)r t11.'lt r..:;lWtl I hav..: f<,".J.U the lon:golng
documenL I am tnf,)m1eU and bdlc"''; ::md Oil th.ll that the m:Jtl';f:'>
to il true.
1
i
I
,
I,
iI
" II
I" _.
Ex. 35 Page 63
1
2
3
4
5
6
7
8
9
1. Andrew Coombs (SBN 123881)
andy@coombspc.com
nicole@coombspc.com
1. Andrew Coombs, A Prof. Corp.
Telephone: (818) 500-3200
FacsImile: (818) 500-3201
Plaintiff DC Comics ("Plaintiff') hereby provides these supplemental
responses, by and through its counsel of record, to certain of Defendant Mark
Towle's ("Defendant") "SPECIAL INTERROGATORIES" ("InteHogatories"), as
follows:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DC Comics,
Plaintiff,
v.
inclusive,
Defendants.
PROPOUNDING PARTY:
RESPONDING PARTY:
SET NO.:
Case No. CII-3934 RSWL (OPx)
SUPPLEMENTAL RESPONSES TO
DEFENDANT MARK TOWLE'S
SPECIAL INTERROGATORIES
Plaintiff DC Comics
One
are proffered only for the purpose of responding to the Inten-ogatories. All responses
26
27
28
DC Comics v. Towle: Plaintift"'s Supplemental Responses to - 1 -
Defendant's Special Interrogatories
Ex. 36
1
2
3
4
5
6
1. Andrew Coombs (SBN 123881)
andy@coombspc.com
nicole@coombspc.com
1. Andrew Coombs, A Prof. Corp.
Telephone: (818) 500-3200
FacsImile: (818) 500-3201
Attorneys for PlaintiffDC Comics
7
8
9
27
28
Case No. CII-3934 RSWL (OPx)
SUPPLEMENTAL RESPONSES TO
Plaintiff DC Comics
One
Defendants.
v.
Plaintiff,
PROPOUNDING PARTY:
RESPONDING PARTY:
SET NO.:
DC Comics,
inclusive,
Plaintiff DC Comics ("Plaintiff') hereby provides these supplemental
responses, by and through its counsel of record, to certain of Defendant Mark
Towle's ("Defendant") "SPECIAL INTERROGATORIES" ("Interrogatories"), as
follows:
DC Comics v. Towle: Plaintift"'s Supplemental Responses to - 1 -
22
23
24
21
11
10
15
18
14
13
16
25
19
17
12
26
20
Page 64
longer are, in its possession, custody or control, or in existence, and to the extent
2
they seek information that is already in the possession, custody, and control of, or is
3
publicly available to, Defendant on the grounds that such a requirement is overly
4
broad, unduly burdensome, and not reasonably calculated to lead to the discovery of
5
admissible evidence.
6
8. Plaintiffreserves the right to rely, at the time of trial or in other
7
proceedings in this action, upon evidence in addition to that provided in response to
8
the Interrogatories regardless of whether, inter alia, any evidence is newly discovered
9
or is cunently in existence. Plaintiff further reserves the right to amend, supplement
10
or clarify any of the responses set forth below at any time.
11
9. Each of the foregoing objections is, to the extent applicable,
12
incorporated into each of Plaintiff's specific responses to the individual Interrogatory
13
as if they were fully repeated therein, and will not be specifically repeated in each
14
such response. Plaintiff's failure to object to an Intenogatory on a particular ground
15
shall not be construed as a waiver of its right to object on that ground or any
16
additional ground at a later time.
17
10. The production of any document by Plaintiff pursuant to the
18
Interrogatories is not, and shall not be construed, as an admission of the relevance or
19
admissibility into evidence of any such document or the propriety of any of the
20
documents requested in the Interrogatories.
21
11. Subject to and without waiving the general objections and the objections
22
set forth in response to specific requests, Plaintiff responds within the limits of these
23
objections as set forth below.
24
INTERROGATORY:
25
26
27
28
DC Comics v. Towle: Plaintiff's Sllpplemental Responses to - 4 -
Ex. 36
2
3
4
5
6
8. Plaintiffreserves the right to rely, at the time of trial or in other
7
8
9
or is cunently in existence. Plaintiff further reserves the right to amend, supplement
10
or clarify any of the responses set forth below at any time.
11
9. Each of the foregoing objections is, to the extent applicable,
12
incorporated into each of Plaintiff's specific responses to the individual Interrogatory
13
as if they were fully repeated therein, and will not be specifically repeated in each
14
such response. Plaintiff's failure to object to an Intenogatory on a particular ground
15
shall not be construed as a waiver of its right to object on that ground or any
16
17
10. The production of any document by Plaintiff pursuant to the
18
19
20
21
22
set forth in response to specific requests, Plaintiff responds within the limits of these
23
24
INTERROGATORY:
25
26
27
28
DC Comics v. Towle: Plaintiff's Sllpplemental Responses to - 4 -
Page 65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
artistic element of the 1966 BATMOBILE (either by describing that part of the car
the terms "separable, nonfunctional [and non-functional], miistic elements."
Plaintiff also objects to the intenogatory as compound and in pmis and to that extent
in that it is irrelevant and not calculated to lead to the discovery of admissible
on original, not miistic, expression. Plaintiff objects to this interrogatOly as
The 1966 BATMOBILE is but one iteration of the Batmobile, a fictional
character has appeared. The 1966 BATMOBILE was built by George Banis, based
on designs and specifications supplied by Plaintiffs predecessor, National
syndication, a serial motion picture in 15 episodes and related artwork, merchandise
DC Comics v. Towle: Plaintiff's Supplemental Responses to - 5 -
Ex. 36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
artistic element of the 1966 BATMOBILE (either by describing that part of the car
the terms "separable, nonfunctional [and non-functional], miistic elements."
Plaintiff also objects to the intenogatory as compound and in pmis and to that extent
in that it is irrelevant and not calculated to lead to the discovery of admissible
on original, not miistic, expression. Plaintiff objects to this interrogatOly as
The 1966 BATMOBILE is but one iteration of the Batmobile, a fictional
character has appeared. The 1966 BATMOBILE was built by George Banis, based
on designs and specifications supplied by Plaintiffs predecessor, National
syndication, a serial motion picture in 15 episodes and related artwork, merchandise
DC Comics v. Towle: Plaintiffs Supplemental Responses to - 5 -
Page 66
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and advertising material. Copyright in all pre-existing, original expression was
Plaintiff's prior copyright in those original elements, specifically including
December 14,1988.
electric drive"; (5) the "Bing-Bong Warning Bell" and "Bat-Light Flasher"; (6) the
Robin's directional signal; (12) mechanics for emergency bat tum with a red lever so
named on dash, reverse thlUst rockets beneath headlights, and ejection parachute
hood hydrolic projector device, and ray coming from Bat-Eyes; (14) portable fire-
extinguisher; (15) receiver and sender computer to be installed in tlUnk of
DC COlruCS v. Towle: Plaintiff's Supplemental Responses to - 6 -
Ex. 36
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and advertising material. Copyright in all pre-existing, original expression was
Plaintiffs plioI' copyright in those original elements, specifically including
December 14, 1988.
electric drive"; (5) the "Bing-Bong Warning Bell
H
and "Bat-Light Flasher"; (6) the
Robin's directional signal; (12) mechanics for emergency bat tUtn with a red lever so
named on dash, reverse thlust rockets beneath headlights, and ejection parachute
hood hydrolic projector device, and ray coming from Bat-Eyes; (14) portable fire-
extinguisher; (15) receiver and sender computer to be installed in trunk of
DC COlmCS v. Towle: Plaintiff's Supplemental Responses to - 6 -
Page 67
1
2
3
4
5
SUPPLEMENTAL RESPONSE TO INTERROGATORY:
6
7
discovery is ongoing: In addition to those elements noted above and any additional
8
specifications contained in various licensing agreements, Plaintiff also specifically
9
identifies the following Oliginal, nonfunctional elements, their selection and
10
arrangement as copyrightable features of the 1966 BATMOBILE: (19) Batface; (20)
11
Bateyes; (21) Batwing rear fenders; (22) double cockpit; and (23) cockpit arch.
12
INTERROGATORY:
13
14
elements of the 1966 BATMOBILE protected by copyright, identify all ofthe
15
16
17
18
19
Plaintiff further objects in that it is iITelevant and not calculated to lead to the
20
21
22
BATMOBILE is based on original, not atiistic, expression.
23
Plaintiff objects to the interrogatory as vague, ambiguous, and compound.
24
Plaintiff also objects to the inteITogatOly as overbroad and unduly burdensome in
25
26
27
28
Defendant's Special1nterrogatories
Ex. 36
1
2
3
4
5
6
7
discovery is ongoing: In addition to those elements noted above and any additional
8
specifications contained in various licensing agreements, Plaintiff also specifically
9
identifies the following Oliginal, nonfunctional elements, their selection and
10
arrangement as copyrightable features of the 1966 BATMOBILE: (19) Batface; (20)
11
Bateyes; (21) Batwing rear fenders; (22) double cockpit; and (23) cockpit arch.
12
INTERROGATORY:
13
14
elements of the 1966 BATMOBILE protected by copyright, identify all ofthe
15
16
17
18
19
Plaintiff further objects in that it is iITelevant and not calculated to lead to the
20
21
22
BATMOBILE is based on original, not atiistic, expression.
23
Plaintiff objects to the interrogatory as vague, ambiguous, and compound.
24
Plaintiff also objects to the inteITogatOly as overbroad and unduly burdensome in
25
26
27
28
Defendant's Specialmterrogatories
Page 68
3
VERIFICATION
2
I, Jay Kogan, have read the foregoing Plaintiff DC Comics' Supplemental
4
Responses to Defendant Mark Towle's Special Interrogatories and know its contents.
5
I am authorized to make this verification for and on behalf of Plaintiff DC
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Comics, and I make this verification for that reason. I have read the foregoing
document. I am informed and believe and on that ground allege that the matters
stated in it are true.
Executed at New York, New York, on this ~ day of July 2012.
I declare under penalty ofperjury under the laws of the United States of
America that the foregoing is true and correct.
DC Comics v. Towle: Plaintiff's Supplemental Responses to . 11 .
OeCendant's Special Interrogatories
Ex. 36
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VERIFICATION
I, Jay Kogan, have read the foregoing Plaintiff DC Comics' Supplemental
Responses to Defendant Mark T o w l e ~ s Special Interrogatories and know its contents.
I am authorized to make this verification for and on behalf of Plaintiff DC
Comics, and I make this verification for that reason. I have read the foregoing
. document. I am informed and believe and on that ground allege that the matters
Executed at New York, New York, on this ~ day ofJuly 2012,
I declare under penalty ofperjury under the laws of the United States of
America that the foregoing is true and correct.
DC Comics v. Towle: PlainlilT's Supplemental Responses 10 11
Page 69
Ex. 36
1
2
3
4
5
6
7
8
9
andy(iV,coombspc. com
NicoleL. Drey (SBN 250235)
nicole@coombspc.com
Glendale, California 91206 .
Telephone: (818) 500-3200
FacsImile: (818) 500-3201
10
11
12
13
14
15
16
17
18
19
20
DC Comics,
Plaintiff,
v.
inclusive,
Defendants.
PROPOUNDING PARTY:
RESPONDING PARTY:
SET NO.:
Case No. Cll-3934 RSWL (OPX)
PLAINTIFF DC COMICS' SECOND
SUPPLEMENTAL RESPONSE TO
Plaintiff DC Comics
One
Plaintiff DC Comics ("Plaintiff') hereby provides this second supplemental
21
response, by and through its counsel of record, to certain of Defendant Mark Towle's
22
("Defendant") "SPECIAL INTERROGATORlES" ("Interrogatories"), as follows:
23
24
25
26
27
materiality), which, if sustained at trial, would require the exclusion of any response
28
DC Comics v. Towle: Plaintiff's Second Supplemental Response - 1-
to Defendant's Special Interrogatories
Page 70
Ex. 36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10. Plaintiffreserves the right to rely, at the time oftrial or in other
or is currently in existence; Plaintiff further reserves the right to amend, supplement
or clarify any ofthe responses set forth below at any time.
11. Each ofthe foregoing objections is, to the extent applicable,
incorporated into each ofPlaintiffs specific responses to the individual Interrogatory
as ifthey were fully repeated therein, and will not be specifically repeated in each
such response. Plaintiffs failure to object to an Interrogatory on a particular ground
shall not be construed as a waiver ofits right to object on that ground or any
12. The production of any document by Plaintiffpursuant to the
set forth in response to specific requests, Plaintiffresponds within the limits of these
INTERROGATORY:
8. If YOU contend that there are separable, nonfunctional, artistic
26
elements of the 1966 BAlMOBILE, identify the first comic book in which each part
27
appeared.
28
DC Comics v. TO"Y1e: Plaintiff's Second Supplemental Response - 4 -
to Defendant's Special Interrogat0r:ies
Page 71
Ex. 36
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the terms "separable, nonfunctional, artistic elements." Plaintiff also objects to the
interrogatory as compound and in parts and to that extent in violation of Fed. R. Civ.
P.33(a)(l). Plaintiff further objects in that it is irrelevant and not calculated to lead
to the discovery of admissible evidence on its use of the terms "separable,
nonfunctional, artistic elements" insofar as copyright protection for the 1966
BAlMOBILE is based on original, not artistic, expression. Plaintiff also objects to
separable, nonfunctional, artistic elements of the 1966 BAlMOBILE appeared:
Detective Comics #156 (Feb. 1950); Batman #164 (June 1964); Detective Comics
#341 (July 1965); World's Finest Comics #154 (Dec. 1965); and Batman #20 (Dec.
1943-1944).
discovery is ongoing: In addition to those comic books noted above, Plaintiff also
identifies Batman #170 (Mar. 1965).
Dated: August R,2012 1. Andrew Coombs, A Professional Corp.
B s r 0 ~ X ~
. 'All ewCoombs
Nicole L. Dre'y'
DC Comics v. Towle: Plaintiff's Second Supplemental Response - 5 -
to Defendant's Special Interrogatories Page 72
Ex. 36
Aug. 8. 20122 6:45PMo! . tulYHL CENTER
2
VE:RlFICATION
No. 14137 ,P. 22,'
3
4
5
6
7
8
9
10
11
12
13
/s
/6
17
18
19
20
21
22
24
25
26
27
28
I, Jay Kogan, have read the foregoing PlaintiffDCComics' Seoond
Supplemental Response to Defendant Mal'k Towle's Special Inte1'rogatories and
knowits contents,
I am authorized to make this verification for and on behalf of PlaintiffDC
Comies, and rmake this verifioation for that reason. I have read the foregoing
dooument. I am informed and believe and on that ground allege that the matters
Executed at NewYork, NewYork, on this ~ Jl-. day of August 2012.
r declare under penalty ofpCljury under the laws of the United States of
America that the foregoing is true and col'tect.
be(;oml" v. Towl.: PI.inllrr. S K o n ~ Suppl"","IR) n..SpD"C - 6
1lt l)ofbKdllhl'B'Spec1bl JIl(crroga(o/ics
Page 73
CENTURY COURT REPORTERS 1-800-555-0014
Page 1
DC Comics, )
)
Plaintiff, )
)
vs. ) Case No. C11-3934 RSWL
) (OPx)
Mark Towle, an individual and )
d/b/a Gotham Garage, and Does )
1-10, inclusive, )
)
Defendants. )
______________________________)
DEPOSITION OF JAY KOGAN
LOS ANGELES, CALIFORNIA
THURSDAY, SEPTEMBER 27, 2012
REPORTED BY: J'NEL ERSKINE, CSR No. 11746
Ex. 37 Page 74
CENTURY COURT REPORTERS 1-800-SSS-001+
Page 12
1 A I spoke to the gentlemen I mentioned before, you
2 know, outside counsel, Andy, Wayne Smith, Steve Corte.
3 Q Okay. And they would bring you up to speed on the
4 history of these things? Let me backtrack.
5 How familiar -- before this case was filed, how
6 familiar were you personally with the history of the
7 Batmobile?
8 A I was fairly familiar with the 1966 contracts with
9 Fox and Greenway and stuff like that and I was a big watcher
10 of the TV show, the 1966 Batman TV show.
11 Q Okay. And I've received documents pursuant to the
12 request for production of documents, and for some of the
13 answers, you said you've produced everything in your
14 possession, custody, or control. And would you agree that
15 for those answers that you've given me where you've said
16 that you produced everything, that everything has been
17 produced?
18 A Yes.
19 Q Can you give me any kind of rough estimate on how
20 many copyrights DC owns?
21 A How many copyrights DC owns? It would be a wild
22 guess. It would be probably thousands, but --
23 Q More than 10,000?
24 A I would suspect so, yes, but, you know, under
25 penalty of perjury, I don't know the number.
Ex. 37 Page 75
Page 13
1 Q But certainly would be thousands?
2 A Certainly would be thousands.
3 Q Okay. Even if you just looked at Batman-related
4 comic books, it would be hundreds?
5 A Yes, yeah, yeah.
6 Q Okay.
7 A Well over 900.
8 Q Before this complaint in this case was filed, did
9 you review it?
10 A The complaint?
11 Q Yeah.
12 A Yes.
13 * Q Okay. And would you agree that one of the
14 purposes of the complaint was to put my client on notice of
15 the claims against him?
16 MR. COOMBS: I'm going to object. I think that's
17 trenching into areas of attorney-client privilege and also
18 calls for speculation. I didn't -- witness is here pursuant
19 to Rule 30(B)(6) notice that identifies specific topics on
20 which he is to testify, essentially as a fact witness. And
21 to the extent that you're asking about issues related to
22 strategy and purposes of the litigation, I think that is
23 beyond the scope of the notice as well. So I'm going to
24 instruct the witness not to answer.
25 BY MR. ZERNER:
Ex. 37 Page 76
Page 16
1 Line 10; the Batman Returns Style Guide II, which is Line
2 11; Batman 170.
3 A Um-hum.
4 Q Detective Comics 337.
5 A Um-hum.
6 Q That was all I got on the first page. And then on
7 the second page, I got everything except for Knight Force
8 Batman, which is the top first one.
9 A Um-hum.
10 Q Okay. And the answer given was that I was given
11 everything that DC would be presenting at trial. And so we
12 are in agreement that those items that are on Exhibit A that
13 you did not produce will not be part of this trial, correct?
14 A I don't know.
15 Q Are you making a claim that DC -- that my client
16 infringed the "DC Comics Anti-Piracy Guide, Batman, Robin,
17 Superman, Wonderwoman, Supergirl, Justice League," Copyright
18 Registration Txu 1-080-661? That's the first one on the
19 list.
20 A Right. I believe --
21 Q Are you making a claim?
22 MR. COOMBS: Go ahead.
23 THE DEPONENT: I believe whatever we're making the
24 claim of is set forth in the pleadings.
25 BY MR. ZERNER:
Ex. 37 Page 77
Page 17
1 Q Well, no, but what I'm saying is I asked you for
2 that document and I was told --
3 MR. COOMBS: I think we can get to the chase. We've
4 discussed this before, Larry. That list is illustrative of
5 numerous Batman registrations, and the ones we're relying on
6 for purposes of trial have been produced.
7 MR. ZERNER: Okay. So that wasn't produced and so it's
8 not part of this case --
9 MR. COOMBS: Correct.
10 MR. ZERNER: -- correct? I'm just -- I'm just knocking
11 them out.
12 Q Okay. The second one, "DC Comics Anti-Piracy
13 Style Guide" --
14 MR. COOMBS: No. Let's be clear. You're making
15 representations, which, if accurate, would lead to the
16 conclusion that you're seeking. You haven't presented the
17 witness with the production and asked him to review them and
18 confirm that these haven't been produced.
19 MR. ZERNER: You want me to? Because I have it right
20 here.
21 MR. COOMBS: If you want to spend your time doing it
22 that way, you can.
23 MR. ZERNER: No, no. We've made a deal here. I don't
24 have it here and you haven't produced it here. So I don't
25 want to play this game here. I don't have it.
Ex. 37 Page 78
Page 72
1 Q Okay. Are you aware of any person who purchased a
2 Batmobile replica from Mr. Towle and believed that the car
3 was licensed or authorized by DC Comics?
4 A I'm not aware of a specific individual, no.
5 Q Are you aware of any consumers who have stated
6 that they were confused because Mr. Towle was selling
7 replica Batmobiles and they thought that Mr. Towle had some
8 license agreement or authorization from DC?
9 A I do not recall if that ever happened.
10 Q In Request for Admission No. 6, I had asked to
11 admit that the car that looked like the '66 Batmobile did
12 not appear in a DC comic book until after the '66 Batman
13 television series aired, and you denied that.
14 So my question is, which comic book would I find a
15 car that looked like the '66 Batmobile prior to 19- -- prior
16 to the show airing?
17 A You know, I did not memorize the individual Batman
18 or Detective comics issue numbers, but I believe in the
19 pleadings and our exhibits there are those comic titles and
20 issue numbers where the Batmobile that appears in there
21 looks like the 1966 Batmobile and has elements that look
22 like elements in the 1966 Batmobile.
23 Q The only -- Exhibit A. The only pre-'66 comic
24 books on the list -- you can double-check -- are the Batman
25 170 and Batman 337. We'll get to 337 later. You withdrew
Ex. 37 Page 79
Page 109
1 THE DEPONENT: Yeah. In my opinion, they are both
2 exaggerated fins.
3 BY MR. ZERNER:
4 Q Okay. Great.
5 Okay. No. 4, all switches and hand-throttle knobs
6 for the nonfunctional turbo-electric drive. Okay. That's
7 on the list on Exhibit 502, but I didn't hear you point that
8 out when we went through the various comics that are in your
9 answer to Question 8. So where would I find these things
10 that you're saying my client infringed?
11 MR. COOMBS: Mischaracterizes the record.
12 BY MR. ZERNER:
13 Q You can answer.
14 A On this Exhibit E.
15 Q Well, there's just a -- that's a list of things.
16 A That's right.
17 Q I'm asking, where is the actual design of it?
18 Did -- George Barris said that he designed it or his staff
19 did. Do you have any evidence that someone at DC designed
20 that?
21 MR. COOMBS: Asked and answered.
22 MR. ZERNER: No, I haven't asked about that.
23 THE DEPONENT: I'm not aware of anything beyond this
24 document.
25 MR. ZERNER: Okay.
Ex. 37 Page 80
Page 110
1 MR. COOMBS: Exhibit 502, the license agreement.
2 MR. ZERNER: The Exhibit E to --
3 THE DEPONENT: Exhibit E to 502, yes.
4 BY MR. ZERNER:
5 Q All right. The bing-bong warning bell and bat
6 light flasher. What is the bing-bong warning bell?
7 You want to look at a picture of the Batmobile?
8 A Sure.
9 I believe that's all incorporated as part of this
10 (indicating) element up here on top.
11 Q Sort of that cherry top thing?
12 A The rotating, flashing light, but --
13 Q Okay. And which comic book would you see that?
14 A Well, I pointed out earlier which comic books we
15 saw it in. And, again, it's on this list.
16 Q Okay. And George Barris said he designed that
17 bing-bong warning bell. Do you have any evidence that would
18 dispute that claim?
19 MR. COOMBS: Asked and answered.
20 THE DEPONENT: I have no evidence contrary to his claim
21 that he, you know, contributed to the design of that. I
22 don't know, you know, what else he may have looked at. I
23 can't, you know, confirm or deny.
24 BY MR. ZERNER:
25 Q Great.
Ex. 37 Page 81
Page 111
1 How about the bat-light flasher? Do you know what
2 that is?
3 A The bat-light flasher, I believe it's part of that
4 whole thing, but I'd have to watch video. I don't know what
5 the bat-light -- I think it's part of this (indicating).
6 Q Part of the bing-bong warning bell?
7 A Yeah. Bing-bong warning bell and bat-light
8 flasher is one thing.
9 Q So it would be the same answer?
10 A Yes.
11 Q You're not aware of any evidence to contradict
12 George Barris' statement that he designed that part of the
13 car, correct?
14 A Yes.
15 Q Okay. The mobile phone between the seats with
16 beeper and flashing light.
17 A Um-hum.
18 Q Have you ever seen the phone that is in the
19 Batmobile in the TV show?
20 A I've seen that phone in the TV show, yes.
21 Q It's kind of a stylized phone and the headset kind
22 of looks like a bat. Would you agree?
23 A Yes.
24 Q Okay. Did we see that in one of the comic books
25 earlier today?
Ex. 37 Page 82
Page 112
1 A We saw a phone in the center of the Batmobile, but
2 not the same design as the phone that was designed
3 reminiscent of the pre-existing bat logo.
4 Q Right. And George Barris said him or his staff
5 designed that phone. Do you have any -- are you aware of
6 any evidence to contradict that statement?
7 A Only to the extent it claims full design of all
8 the elements of the bat phone, to the extent the bat phone
9 includes elements of the bat logo and the bat, sort of,
10 design that we've used in numerous places, no.
11 Q The bat scope complete with TV-like viewing screen
12 on the dash, radar-like antenna with aimable parabolic
13 reflector outside, and cockpit controls.
14 Can you tell me what part of the car that is?
15 A It's on the inside dashboard area.
16 Q And what is it?
17 A Well, the TV -- you've got the -- you've got --
18 there's, like -- it's hard to point out in these, but you've
19 got --
20 Q Oh, here's a picture of the phone.
21 A Okay. There is the phone.
22 This (indicating) is the TV screen.
23 Q The phone is on page 36 of the book.
24 A Right.
25 Q For the record.
Ex. 37 Page 83
Page 113
1 A The phone, bat radar, bat scanner.
2 Q Let's take them one at a time.
3 A Okay.
4 Q I'm talking about the bat scope. Which comic book
5 would we have seen a bat scope that looks like the bat scope
6 that's on the '66 Batmobile?
7 A I don't know.
8 Q Okay. Anti-theft system consisting of flashing
9 red lights, piercing whistle, little rockets built into
10 tubes at the back of the cockpit that fire straight with a
11 fiery whoosh.
12 We saw in one of the comic books where an alarm
13 went off in the --
14 A Right.
15 Q -- in the Batmobile.
16 And other than that, would you agree that the
17 anti-theft system is functional?
18 A Again, it's fictionally functional in the comic
19 books and in the movies.
20 Q Well, if you built into the car an anti-theft
21 system that if somebody tried to steal it, red lights would
22 go off and whistles would go and rockets would explode, then
23 that would function as well, correct?
24 MR. COOMBS: Calls for speculation. Asked and
25 answered. Argumentative.
Ex. 37 Page 84
Page 114
1 THE DEPONENT: I think an anti-theft system would be
2 highly unlikely to include rockets that shoot up and do all
3 kinds of stuff that this anti-theft system, this fictional
4 anti-theft system does.
5 BY MR. ZERNER:
6 Q Okay. All right.
7 A Not in his car, anyway.
8 Q Anti-fire -- No. 9, anti-fire control system
9 consisting of a flood of foam from a secret nozzle.
10 Did we see that in any of the comic books?
11 A I do not recall.
12 Q So that's a no?
13 A I guess no.
14 Q Okay. Turn-off switch for protection systems, did
15 we see that in one of the comic books?
16 A No.
17 Q Okay. Radar-like screen that beeps and blips and
18 points an arrow as it picks up Robin's directional signal.
19 A I believe in one of the comic books we saw
20 references to a radar screen or references to radar in text.
21 In terms of directional signals to Robin, no.
22 Q Okay. And are you aware of any evidence that
23 would contradict George Barris' statement that him or his
24 staff designed the radar screen on the Batmobile?
25 A Again, to the extent he discounts the pre-existing
Ex. 37 Page 85
Page 115
1 radar screens and other elements that we've had in our
2 comics and elsewhere, you know, in our comics, to the extent
3 he comes up with his own radar screen excluding pre-existing
4 elements, no, I don't -- I don't have any evidence to the
5 contrary.
6 Q Okay. No. 12, it looks like three separate
7 things. One is mechanics for emergency bat turn with the
8 red lever so named on dash. Did we see that on any of the
9 comic books?
10 A No.
11 Q Okay. Reverse thrust rockets beneath headlights,
12 did we see that on --
13 A No.
14 Q -- any of the comic books?
15 Sorry, let me finish. Let me just get that clear
16 on the record.
17 Did you see that on any of the comic books?
18 A Reverse thrust rockets beneath headlights, no.
19 Q Ejection parachute mechanism at rear, did we see
20 that in any of the comic books?
21 A No.
22 Q Just let me catchall. I know I am saying did you
23 see that in any of the comic books. Are you aware of any
24 other thing than a comic book that pre-existed -- that
25 pre-existed the '66 Batmobile that DC might be claiming
Ex. 37 Page 86
Page 116
1 copyright infringement on?
2 Does that -- is my question clear? I don't know
3 if that was clear. We're only talking about comic books
4 because I think of DC as a comic book company, but I didn't
5 know if you had, like, some other thing that maybe you're
6 going to say he infringed.
7 A I'm not aware of anything.
8 Q Okay. Bat ray projector mechanism with lever on
9 dash so named, did we see that on any of the comic books?
10 A I guess there -- there were, you know, fictional,
11 you know, light projectors on some of the Batmobiles, but I
12 couldn't tell from the story line whether they projected a
13 bat ray.
14 Q Did we see a hood hydraulic projector device in
15 any of the comic books?
16 A No, not to my recollection.
17 Q Or rays coming from the bat eyes in any of the
18 comic books?
19 A No, not that I recall.
20 Q No. 14, a portable fire extinguisher, did we see
21 that in any of the comic books?
22 A No.
23 Q Would you agree that a portable fire extinguisher
24 is functional?
25 A I would agree a portable fire extinguisher is a
Ex. 37 Page 87
Page 117
1 functional item.
2 Q Receiver and sender computer to be installed in
3 trunk of Batmobile, did we see that in any of the comic
4 books?
5 A Not that I recall, no.
6 Q The bat logo. All bat logos and symbols -- now,
7 we are -- you are claiming that, correct? We've seen the
8 bat logos.
9 A Yes, yes. Logos and symbols appear in most of our
10 comic books, if not all of them.
11 Q Do you know when the bat logo was first created?
12 A Almost -- you know, almost back, I think, in the
13 beginning, but I can't say without confirming it.
14 Q Okay. Color of the Batmobile, I don't know what
15 that means. Are you claiming that the color of the
16 Batmobile is copyrightable?
17 A As one element contributing to an entire work.
18 It's -- it's, you know -- standing by itself, perhaps not,
19 but as an element along with all the other elements, it
20 becomes -- becomes copyrightable.
21 Q And luminescent outline of bat symbol to define
22 symbol at night, I don't know what that means. Do you know
23 what that means? Do you know where the luminescent outline
24 of bat symbol appeared on the Batmobile?
25 A I do not.
Ex. 37 Page 88
Page 118
1 Q Okay. Okay. So now we're going to do the same
2 thing with the -- let me pull out -- that we did for the
3 '66. We're going to do it for the '89. We're going to look
4 at Question 4 and Question 12. So we have some -- Question
5 12 has a -- one carry-over, which is Detective 156, and then
6 we're adding Batman 5, The Cult. I have The Cult here.
7 MR. SAIDI: 5 and 408.
8 MR. ZERNER: So let's mark -- actually, this is --
9 (DEFENDANTS' EXHIBITS 529, 530, AND 531 WERE
10 MARKED FOR IDENTIFICATION AND ATTACHED HEREWITH.)
11 BY MR. ZERNER:
12 Q So why don't we look at -- now we're just talking
13 about the '89 Batmobile.
14 A Okay.
15 Q So if you can look at 529 and tell me what parts
16 of 529 were --
17 MR. COOMBS: I'm sorry. Which one is 529?
18 MR. ZERNER: This (indicating) one.
19 MR. SAIDI: No. 5.
20 THE DEPONENT: You've got the scalloped fin.
21 BY MR. ZERNER:
22 Q Okay.
23 A And you've got what I would describe as, I think,
24 mandible front fender-type things.
25 Q What does mandible mean?
Ex. 37 Page 89
Page 119
1 A That's a good question. I think it's the big
2 front curved parts. These (indicating) are mandibles. But
3 I'm personally not all that familiar with the word
4 "mandible."
5 MR. TOWLE: It's the lower jaw bone.
6 MR. ZERNER: What's that?
7 MR. TOWLE: Lower jaw bone.
8 MR. ZERNER: Oh.
9 MR. TOWLE: Is the mandible.
10 MR. COOMBS: Especially on insects.
11 BY MR. ZERNER:
12 Q Sort of like the front -- like, right in front of
13 the wheels, that part?
14 A That's what I think, yes.
15 Q Okay. And you're saying that was copied on the
16 '89?
17 A Yeah. This kind of thing here (indicating).
18 Q Okay. Anything else?
19 A No.
20 Q Okay. Let's go to 530, which is The Cult.
21 A This is the fictional element of the car being
22 armored.
23 Q Armored?
24 A Armored.
25 Q Okay.
Ex. 37 Page 90
Page 120
1 A That's it.
2 Q That's it.
3 Okay. And 408?
4 A I don't have anything on 408.
5 Q Have you ever seen 408 before? Have you ever
6 looked at 408 before today?
7 A I don't recall.
8 Q How about The Cult, have you looked at that
9 before?
10 A Yes.
11 Q When was that?
12 A You know, I don't recall when I looked at it.
13 Q In the past couple months?
14 A Yes.
15 Q Did you look at these when you were responding to
16 the requests for production or requests for the
17 interrogatories?
18 A I don't recall the specifics. I recall assisting
19 in gathering comics from our librarian and sending them to
20 counsel.
21 Q You did that? You got comics to give to the
22 counsel? That was your job?
23 A I was a liaison, in part, for some of those
24 requests, yes.
25 Q Okay. And then the last one is 156, right?
Ex. 37 Page 91
Page 121
1 A Is that one of the earlier ones again?
2 Q Yeah.
3 MR. COOMBS: It's 524.
4 THE DEPONENT: Okay. Again, this has the scalloped
5 fin, you know, rocket tubes, TV screen, a radar screen,
6 interior monitor. That's it.
7 BY MR. ZERNER:
8 Q Okay. Can you show me where you see rocket tubes
9 on the '89 Batmobile? There's a front and back here
10 (indicating). That's the '89.
11 A You've got the jet exhaust tube.
12 Q Where?
13 A Just the (indicating) --
14 Q Just that (indicating). Okay. Okay.
15 A Just that.
16 And I can't -- and then these (indicating) holes
17 on the left and the right are --
18 Q Exhaust tubes?
19 A Yeah, I guess.
20 Q All right. Now, let's -- so let's go through the
21 list of the elements you put on your answer to Question 4.
22 All right. So in the four comic books we just went through,
23 did we see a nonfunctional jet turbine engine intake grill?
24 A No.
25 Q You said that they took the mandible fenders from
Ex. 37 Page 92
Page 122
1 Batman 5, right?
2 A Yes, that's what I pointed out.
3 Q Okay. And the rear sculpted fins in Batman 5?
4 A The scalloped, large fin, yes.
5 Q Interior monitor, did we see that?
6 A We saw an interior monitor of a TV screen and a
7 radar screen.
8 Q Right.
9 And fictionally functional?
10 A Fictionally functional.
11 Q Did we see a self-diagnostic system?
12 A Not that I recall.
13 Q Did we see spherical bombs?
14 A Not that I recall, no.
15 Q Chassis-mounted shin breakers?
16 A No.
17 Q Side-mounted disk launchers?
18 A You know, I don't believe I did. You know, The
19 Cult may have had weaponry on that piece of -- on the
20 vehicle in there besides the armor.
21 Q That's okay. He doesn't have -- they're not on
22 Mr. Towle's car, so we can skip that.
23 A Okay. No machine guns or bombs?
24 Q No disk launchers. No -- well, he does -- do we
25 see a pair of forward-facing Browning machine guns on any of
Ex. 37 Page 93
Page 144
1 Q Okay. And did anyone send a cease and desist
2 letter to Mark Towle at that time?
3 A I don't recall. You know, I don't recall.
4 Q Well, certainly none have been produced in
5 discovery. So would that be probably -- does that sound
6 like a no?
7 A If none were produced in discovery, it looks like
8 if it were done, it were -- it were done by some e-mail that
9 somebody failed to retain. I don't --
10 Q Okay. And I'm just going to put out that
11 Mr. Towle will testify that no one ever told -- no one ever
12 sent him a cease and desist letter. And so I would ask you
13 why -- why DC didn't take any action against Mr. Towle from
14 the time it knew about him and prior to 2006 until 2011?
15 A You know, like any other copyrighted trademark
16 owner, you got to decide, you know, where to take action and
17 when when there's numerous infringers. You got to pick and
18 choose. And as somebody becomes more blatant, it might
19 change the analysis over time.
20 Q Okay. And what changed the analysis was that Mark
21 Racop was sending you e-mails telling you to go after Mark
22 Towle, correct?
23 A I can't say that's the case. I don't recall that
24 being the case. At one point we saw there were more than
25 one entity out there who were selling -- infringing
Ex. 37 Page 94
Page 145
1 Batmobiles and we went after others before Mark Towle.
2 Q You did?
3 A We went after Jay Ohrberg.
4 Q In 1994?
5 A That was before Mark Towle.
6 Q Okay. Between 1994 and 2011, I have -- listen, I
7 have -- you gave me some lawsuits. There's a Jay Ohrberg,
8 Steve Sakane, and C'est Bon Limousine Service; all '93, '94.
9 Then nothing after '94.
10 Are you aware of any -- any activities policing
11 the Batmobile mark after those lawsuits that you gave me,
12 let's say, between 1995 and 2010?
13 MR. COOMBS: You talking specifically to litigations,
14 which are the examples you said, or anything?
15 MR. ZERNER: No. Anything.
16 THE DEPONENT: We sent to an outside counsel and
17 Michael Bergman a list of at least three entities or
18 individuals we were concerned about their actions. He
19 investigated for us.
20 MR. COOMBS: Be careful. I don't want to get into
21 privileged communications with counsel.
22 BY MR. ZERNER:
23 Q Were cease and desist letters sent as a result of
24 finding out about those people?
25 A At the time, one of the three were determined that
Ex. 37 Page 95
Page 146
1 we should pursue.
2 Q Who was that? If you sent a cease and desist
3 letter, it's not protected.
4 A That would be Mark Racop.
5 Q Okay. And that was in 2010, right?
6 A Yes.
7 Q Okay. So, again, between 1995 and 2010, between
8 those times, anything?
9 A Well, I believe Racop was 2008. Might not have
10 been resolved until 2010.
11 Q Oh, okay. So between 1995 and 2008, there was
12 nothing in-between then?
13 A Not to my recollection. You know, we have
14 anti-piracy counsel, as I've said before, who pursues things
15 on a worldwide basis who may have sent cease and desists on
16 DC's behalf that I don't have a recollection of or was not,
17 you know, advised of.
18 Q Was Mark Racop's license renewed this past year
19 for another year?
20 A Yes.
21 Q Okay.
22 A I believe so. I don't know what the expiration
23 date was off the top of my head.
24 Q Well, remember we had looked at it. It was August
25 2010 was the first one, and they were yearly agreements. So
Ex. 37 Page 96
Page 147
1 the new one would have come up a few weeks ago.
2 A Um-hum.
3 Q So it was?
4 A Yes.
5 Q Do you know who Bob Butts is?
6 A Bob Butts, I don't recall the name Bob Butts.
7 Q Okay. Do you know who Jim Benken is?
8 A The name sounds familiar.
9 Q He runs a Web site called Batrodz.
10 A I believe we looked into the Batrodz Web site as
11 well.
12 Q Did you send him a cease and desist letter?
13 A I don't recall sending him a cease and desist
14 letter. There may have been eBay auctions we had to shut
15 down. We sent notices to have eBay auctions shut down on
16 that on occasion.
17 Q Do you know the Web site Gotham Cruisers?
18 A Again, it sounds familiar and something we might
19 have looked at.
20 Q You don't know if a cease and desist was sent?
21 A Again, we might have had a cease and desist for an
22 eBay auction that they were doing.
23 Q Is it DC's position that if somebody sells a
24 replica of the '66 Batmobile, but doesn't call it a
25 Batmobile and doesn't put the bat emblem on it, are they
Ex. 37 Page 97
Page 148
1 still infringing DC's rights?
2 A It would be our position that would still
3 constitute an infringement of our rights.
4 Q Okay. Which rights?
5 A Our intellectual property rights.
6 Q Okay. Specifically? Copyright?
7 A We would take a position that it could still
8 infringe our copyright to the extent of the various
9 collection, coordination, and arrangement of all the
10 elements comprised in the Batmobile, our trademark-related
11 rights, unfair competition type of claims, things like that,
12 that people would be selling it, trading off of our
13 goodwill.
14 MR. ZERNER: Okay. Let me have the Australian -- this
15 was produced in discovery. I guess it's whatever it is.
16 MR. COOMBS: Got a copy for me?
17 MR. ZERNER: Yeah.
18 What number are we on?
19 THE REPORTER: 532.
20 (DEFENDANTS' EXHIBIT 532 WAS MARKED
21 FOR IDENTIFICATION AND ATTACHED HEREWITH.)
22 BY MR. ZERNER:
23 Q It was in a back and forth about George Barris.
24 It was in a pile of documents I got about George Barris.
25 Appears to be a letter from an attorney representing DC in
Ex. 37 Page 98
Page 149
1 Australia to George Barris' attorney in Los Angeles. Do you
2 know who Philip Kerr is?
3 A No.
4 Q Do you know if -- you were not there in 1987?
5 A No. This pre-dates me.
6 Q Okay. You see in the second sentence of the
7 letter it says, "DC Comics, Inc., does not and has not ever
8 asserted that it is the owner of the design of Batmobile
9 001"? Do you see that?
10 A Yeah, I see that.
11 Q And then in Paragraph 1 it says -- Paragraph
12 numbered 1, it says, "As stated above, DC Comics, Inc., does
13 not assert that it is the owner of the design of Batmobile
14 001 made by your client."
15 A Wait. Is that a different page?
16 Q Same page, No. 1.
17 A Oh, No. 1. Okay. I see that.
18 Q And then in No. 2, on the top of the next page, it
19 says, "Again, DC Comics, Inc., has never asserted that the
20 1965 agreement operated as a conveyance of any rights in
21 your client's design of the Batmobile 001 to DC Comics,
22 Inc." Do you see that?
23 A I see that.
24 Q Is that accurate reflections of DC's position?
25 A I can't say. I mean, in 1987 --
Ex. 37 Page 99
Page 150
1 Q Is it their position now?
2 A Our position --
3 Q You claimed you were the owner of the design of
4 Batman 001 -- Batmobile 001.
5 A Yeah. Our position, we own the copyright and the
6 copyrightable aspects of that -- of the 1966 Batmobile, you
7 know, and -- right, you know, all the separable, conceptual
8 elements that are -- that constitute the Batmobile features.
9 Again, in the agreement it specifies --
10 Q But do you take the position that the '65
11 agreement between Barris and Fox conveyed the rights that
12 Barris got to DC Comics?
13 MR. COOMBS: Objection; ambiguous, calls for a legal
14 conclusion, the document speaks for itself.
15 THE DEPONENT: I mean, the contracts say that we retain
16 all rights and all the pre-existing Batman elements and in
17 the elements on that Exhibit E and in Exhibits A through D
18 and Article 10 and that we have exclusive merchandising and
19 product rights. That's -- you know, that's our position.
20 BY MR. ZERNER:
21 Q But you didn't get the copyright to his design
22 rights, correct, to George Barris' contribution?
23 A To whatever extent his contribution is subsumed by
24 all the things I just said, well, then yes; but to the
25 extent it's not, then no.
Ex. 37 Page 100
Page 151
1 Q This may be --
2 (DEFENDANTS' EXHIBIT 533 WAS MARKED
3 FOR IDENTIFICATION AND ATTACHED HEREWITH.)
4 BY MR. ZERNER:
5 Q Okay. 533 is pages from Mark Racop's Web site.
6 A Okay.
7 Q Okay. Let's go about halfway through. Starts --
8 let's go to the page where the phone is on top.
9 MR. COOMBS: This one (indicating)?
10 MR. ZERNER: Yes.
11 THE DEPONENT: Okay.
12 BY MR. ZERNER:
13 Q Okay. Leaving aside any trademark, I'm not asking
14 about trademark. Is it your position that DC owns the
15 copyright to the design of that phone?
16 A To the extent that there's a copyright in the
17 sculptural aspects of that phone, yes.
18 Q Where would I see that phone in a DC property that
19 would have been infringed?
20 A I'm not sure I follow the question. In our
21 licensed products. You mean prior to?
22 Q Who designed this, right? Which copyright are you
23 violating if you sell that phone?
24 A Again, according to our agreements, we have the
25 exclusive merchandising, product rights in various elements
Ex. 37 Page 101
Page 152
1 and devices included in the Batmobile. That extends to the
2 Batmobile under our contracts.
3 Q Okay. Again, what copyright would be infringed if
4 someone sold that phone?
5 A Our copyright --
6 Q Specifically, which registration number --
7 MR. COOMBS: Let him answer your question. Let him
8 finish. I know you are getting excited over there.
9 MR. ZERNER: Sorry.
10 THE DEPONENT: I can't identify a registration number.
11 BY MR. ZERNER:
12 Q Okay. How about the dash turn indicators?
13 A No, I can't identify a copyright registration.
14 Q Okay. Next page, the deluxe futura roll-top
15 dashboard, can you identify a copyright registration that
16 would be infringed by the duplication of that?
17 A Not separately, no.
18 Q Okay. And the steering wheel, can you name a
19 copyright registration?
20 A Not for the individual steering wheel.
21 Q And the detect-a-scope?
22 A No, not an individual copyright registration.
23 Q Okay. And the next page, emergency bat turn lever
24 kit?
25 A Not a separate copyright registration.
Ex. 37 Page 102
Page 153
1 Q The faux Futura air conditioning vents?
2 A No specific copyright registration.
3 Q The Futura center console?
5 Q The Futura inside door handle kit?
6 A Once again, no specific copyright registration.
7 Q Okay. The gear shift indicator light set?
9 Q The pair of blue center console triangle knob
10 switches?
11 A No copyright registration that I'm aware of.
12 Q The pair of red and white dashboard buttons?
13 A Not by itself, no. No specific copyright
14 registration.
15 Q The remote back computer switch? Next page.
16 A No specific copyright.
17 Q Next page, the arch side marker light kit?
18 A Again, no specific copyright registration.
19 Q The bat wheel spinners?
20 A You got the bat logo there.
21 Q Okay. Which registration would that be?
22 A Trademark registrations. You probably could find
23 substantially similar bat logos in numerous comics you
24 looked at.
25 Q Okay. How about the bat beam antenna kit?
Ex. 37 Page 103
Page 154
1 A No. I can't think of any specific copyright
2 registration.
3 Q The beacon cage and rotating light?
4 A I cannot think of a specific copyright
5 registration.
6 Q The Deist -- Deist, right?
7 MR. TOWLE: Deist.
8 BY MR. ZERNER:
9 Q Deist parachute pack kit? D-e-i-s-t.
10 A Not as a stand-alone element, no. No specific
11 copyright registration.
12 Q I'll skip the stickers. Let's go to the next
13 page. The last one. The rocket exhaust tube kit?
15 Q And the last page, the triple rocket tube kit?
17 MR. ZERNER: Okay. And we're done.
18 MR. COOMBS: Go off the record for a moment.
19 (Discussion held off the record.)
20 MR. ZERNER: Stipulate the court reporter be
21 relieved -- sorry. Stipulate the court reporter be relieved
22 of her duties under the Code of Civil Procedure; that the
23 original transcript be delivered to Mr. Coombs to give to
24 the witness. Witness will have 30 days to sign and return.
25 And in the event that the original is lost, stolen,
Ex. 37 Page 104
Page 155
1 misplaced, burned, unavailable, then a certified copy can be
2 used for all purposes, trial or motion.
3 Anything else?
4 MR. COOMBS: And if you're not notified within five
5 days after that 30-day deadline, you can assume the original
6 was signed under penalty of perjury without changes.
7 MR. ZERNER: So stipulated.
8 MR. COOMBS: And I'll maintain custody of the original
9 pending further proceedings.
10 So stipulated.
11 MR. ZERNER: Yeah. Okay.
12 (WHEREUPON THE DEPOSITION CONCLUDED AT 3:27 P.M.)
13
14
15
16
17
18
19
20
21
22
23
24
25
Ex. 37 Page 105
Page 156
1 WITNESS' CERTIFICATE
2
3 I am the witness in the foregoing deposition. I
4 have read the foregoing deposition, and having made such
5 changes and corrections as I desire, I certify that the same
6 is true of my own knowledge, except as to matters which are
7 therein stated upon my information or belief, and as to
8 those matters, I believe it to be true.
9 I declare under penalty of perjury under the laws
10 of the State of California that the foregoing is true and
11 correct.
12
13 Executed on __________________________________,
14 at __________________________________, California.
15
16
17
18
19
20 ___________________________________
21 JAY KOGAN
22
23
24
25
Ex. 37 Page 106
CENTURY COURT REPORTERS 1-800-555-0014
Page 1

DC Comics, )
)
Plaintiff, )
)
vs. ) CASE NO.: CV113934RSWL
) (opx)
Mark Towle, an individual; )
and d/b/a/ Gotham Garage, )
and DOES 1-10, inclusive, )
)
Defendants. )
_____________________________)

DEPOSITION OF GEORGE BARRIS
LOS ANGELES, CALIFORNIA
WEDNESDAY, AUGUST 8, 2012

REPORTED BY: MARIA LINDA MORALES, C.S.R. NO. 10234

Ex. 38 Page 107
Page 9
1 time to build the '66 Batmobile; is that correct?
2 A. That is correct.
3 Q. How much time did you have to build it?
4 A. 15 days.
5 Q. Okay. And it's my understanding, and correct
6 me if I'm wrong, that the '66 Batmobile was built, using
7 the Lincoln Futura, as sort of the base of the car; is
8 that correct?
10 Q. Let me show you some pictures.
11 MR. COOMBS: That's three pages of.
12 MR. ZERNER: Three pages of -- well, let's
13 have him identify it.
14 (Defendant's Exhibit 501 was marked for
15 identification by the reporter and is attached
16 hereto.)
17 Q. BY MR. ZERNER: Are these pictures of the
18 Lincoln Futura car?
19 A. One, two, and three -- yes.
20 Q. Okay. And, in one of the pictures, the car is
21 not as pretty and looks like the picture was taken
22 outside.
23 Was that how the car looked before you started
24 building it?
25 A. Yes.
Ex. 38 Page 108
Page 10
1 Q. And how was it decided to use the Futura as
2 the base of the Batmobile? Who decided that?
3 A. I decided, because, due to the time I had and
4 the budget, it would be easier to reconstruct the Futura
5 to do what I wanted to create for Batman as the
6 Batmobile.
7 Q. And when you were deciding how the Batmobile
8 was going to look, were you given some drawings or
9 photographs or comic books to look at first?
10 A. No.
11 Q. Okay. So who designed the '66 Batmobile?
12 A. I did.
13 Q. Okay. And when you say you designed it, what
14 does that mean?
15 A. I would visualize the basic car and what I
16 wanted to create for a Batmobile that was reflected to
17 the script that Dosier had to be Batman and Robin, and a
18 car that they could use.
19 MR. ZERNER: This will be Exhibit 502.
22 hereto.)
23 Q. BY MR. ZERNER: This is -- I've given you an
24 exhibit. This is the contract between you and 20th
25 Century Fox and Greenway Productions, to build the
Ex. 38 Page 109
Page 11
1 Batmobile, from September of 1965; is that correct?
2 A. I haven't read it all, so I couldn't say it is
3 correct.
4 Q. Okay. In '65, you did sign a contract with
5 Century 20th Fox and Greenway Productions, to build a
6 car?
7 A. Correct.
8 Q. And your lawyer turned over a document today,
9 which looks like the same document so...
10 MR. PASSMAN: Look at the last page, George.
11 THE WITNESS: Okay.
12 MR. ZERNER: No. That's the -- that's the
13 exhibit.
14 MR. PASSMAN: One second.
15 MR. ZERNER: In fact, let me see that because,
16 I know I have some exhibits on mine.
17 MR. PASSMAN: You want it back?
18 MR. ZERNER: The one you have, just to see.
19 MR. PASSMAN: The one I have -- okay. Let me
20 just see for a second. I think it's the same.
21 MR. ZERNER: Is it the same?
22 MR. PASSMAN: I'm -- I'm double checking right
23 now. It appears to be. There's a couple of exhibits in
24 the back we don't have. It references exhibits, but I
25 just don't have them.
Ex. 38 Page 110
Page 15
3 hereto.)
4 Q. BY MR. ZERNER: You obtained a design patent
5 on the look of the '66 Batmobile?
6 A. Yes.
7 Q. Is that -- is that -- does that look like the
8 patent?
9 A. Yes.
10 Q. And is there anyone's work reflected on this
11 patent, other than yours?
12 A. Only the basic car, which was the Futura.
13 Q. Any -- did any DC or National Comics -- I --
14 I -- let me just go back a second.
15 I'm going to refer to DC Comics during --
16 during the course of this deposition, and I know that --
17 I think back then, it was called National Comics. So
18 I'll refer to "DC," but we mean "DC" or its predecessor,
19 National Comics.
20 Okay?
21 So did anyone from DC Comics assist you in
22 preparing those drawings of the Batmobile?
23 A. I would say no.
24 Q. Okay. Did you have a lawyer prepare this
25 patent for you?
Ex. 38 Page 111
Page 16
1 A. I can't remember.
2 Q. Okay. Do you hold any other design patents?
3 A. Can't remember that either.
4 Q. On the Monster Mobile or the Night Rider car
5 or anything? You don't know?
6 A. I don't remember.
7 Q. Okay. Is it your understanding that the
8 design of the '66 Batmobile belongs to you, or does it
9 belong to DC Comics, or does it belong to both of you,
10 or does it belong to neither?
11 A. I understand that the design of the car is,
12 like, the patent that I patented.
13 Q. And that belongs entirely to you; correct?
14 A. And I would say it was my design.
15 Q. I'm going to ask you about certain parts of
16 the Batmobile now.
17 Okay?
18 And if my question isn't clear, let me know.
19 Maybe we'll look at a picture, so we can understand what
20 we're talking about.
21 Okay?
22 But who designed the front grille work on the
23 '66 Batmobile?
24 A. I did.
25 Q. Okay. Was that taken from something you had
Ex. 38 Page 112
Page 17
1 seen in a comic book -- a Batman comic book?
2 A. No.
3 Q. Who designed the after burner of the '66
4 Batmobile?
5 A. Are you talking about the flame out of the
6 back?
7 Q. Yes, the piece that the flame comes out of,
8 correct.
9 A. Who designed it?
10 Q. Yeah.
11 A. I can't remember.
12 Q. Is it based on just a jet engine -- the way a
13 jet engine after burner would look?
14 A. No.
15 Q. Is it an original design?
16 A. Yes.
17 Q. And it may not have been you?
18 A. It would be me or my staff.
19 Q. You or your staff, okay.
20 Who designed the fins, the rear fins on the
21 '66 Batmobile?
22 A. I did.
23 Q. Okay. Was that modeled on something you had
24 seen in a Batman comic book?
25 A. I can't remember totally.
Ex. 38 Page 113
Page 18
1 Q. Okay. Who designed the interior switches and
2 nobs?
3 Who decided -- who put where the switches and
4 nobs would go on the car?
5 A. Myself and my staff.
7 seen in a DC comic book?
8 A. Can't recall.
9 Q. Do you know what the -- there's a part of the
10 car -- one of the functions says there's a bing-bong
11 warning bell in the Batmobile.
12 Do you know what part of the car that is?
13 A. Can't recall.
14 Q. Okay. Who designed the Batphone?
15 A. Can't remember.
16 Q. Was it one of your staff?
17 A. Possibly with a staff and myself.
18 Q. Who designed the Batscope?
19 A. The staff and myself.
20 Q. Was that modeled on something you had seen in
21 a comic book?
22 A. Can't recall.
23 Q. Okay. Who designed the antenna that's on the
24 front hood?
25 A. Are you talking about an antenna on the front
Ex. 38 Page 114
Page 19
1 hood?
2 Q. Yeah.
3 A. Or over the arch?
4 Q. Not over the arch. The one that's --
5 MR. PASSMAN: The fly swatter.
6 MR. ZERNER: The fly swatter.
7 THE WITNESS: Just my staff and myself.
8 Q. BY MR. ZERNER: Was that modeled on something
9 that you had seen in a comic book?
10 A. Can't recall.
11 Q. Okay. Who designed the anti-theft system?
12 A. Staff and myself.
14 seen in a comic book?
15 A. Can't recall.
16 Q. Okay. Who designed the anti-fire control
17 system?
18 A. My staff and myself.
21 A. Can't recall.
22 Q. Okay. Who designed the turn-off switch for
23 protection systems?
25 Q. Okay. And was that modeled on something you
Ex. 38 Page 115
Page 20
1 had seen in a comic book?
2 A. Can't recall.
3 Q. Okay. Who designed the radar screen?
7 A. Can't recall.
8 Q. Okay. Who designed the emergency Bat-turn
9 lever?
13 A. Can't recall.
14 Q. Okay. Who designed the parachute mechanism?
15 A. Are you talking about the two parachutes in
16 the back?
17 Q. Yes.
18 A. Who designed them?
19 Q. Did -- were they designed, or did you just buy
20 them and stick them on the car?
21 A. They were created by Dietz, who was a
22 parachute builder for race cars, and myself.
23 Q. Was there a -- I -- I mean, I've seen them on
24 the car. Is that how they come when you buy them, or
25 did you have to, in some way, modify them, to make them
Ex. 38 Page 116
Page 21
1 look more -- you know, for the -- ready for the comic --
2 for the show?
3 A. Dietz and myself redesigned it, to be a part
4 of the Batmobile.
5 Q. Okay. Who designed the Bat-ray projector
6 mechanism?
7 A. My staff and myself.
10 A. Can't recall.
11 Q. Okay. Who designed the fire extinguisher?
12 A. If I remember correctly, the basis was a
13 regular fire extinguisher that my staff and myself
14 recalculated.
15 Q. Meaning?
16 A. To fit.
17 Q. Did you -- recalculate it to fit?
18 A. Have a space to put it into.
19 Q. I see.
20 And then you painted it and put a Bat symbol
21 on it, is that all it is?
22 A. If I see that it is, it was done by my staff
23 and myself.
24 Q. Who designed the cockpit arch?
25 A. The arch down the middle?
Ex. 38 Page 117
Page 22
1 Q. Yeah.
2 A. That was the staff and myself.
5 A. I cannot recall.
6 Q. Okay. Who designed the light -- the spinning
7 red light on the top of the arch?
8 A. The staff and myself.
11 A. I can't recall.
12 Q. Okay. All right. I think I'm done with that
13 part of the depo. We can move on.
14 And I was at the -- I was at the -- I was at
15 Comic-Con, and I watched the Batmobile panel. It was
16 very entertaining.
17 And I heard you say that, on the back of the
18 car, the -- the oil spreader -- right? -- there's two,
19 like, sprinklers that are made to shoot out oil;
20 correct?
21 A. Correct.
22 Q. And you said, and correct me if I'm wrong,
23 that you just bought some 99 cent sprinklers at the
24 hardware store and painted them, and that's all that is
25 there on the car?
Ex. 38 Page 118
Page 23
2 Q. Okay. What about the three tubes that come
3 out the back of the -- come out the back hood?
4 A. Up on the back section?
5 Q. Yeah.
6 A. What you want to know about it?
7 Q. Who designed that?
8 A. Myself and my staff.
9 Q. Okay. Let me show you another contract.
10 MR. ZERNER: This will be 504.
13 hereto.)
14 MR. ZERNER: I'm showing you an agreement
15 dated August 15, 1966.
16 MR. PASSMAN: Let me see that for a second,
17 before you do.
18 Q. BY MR. ZERNER: By the way, were any of your
19 staff also employees of DC Comics?
20 A. Any of my staff?
21 Q. Yeah.
22 Were they also employees of DC Comics or just
23 employees of you?
24 A. Employees of me.
25 Q. Okay. Okay. So I'm going to show you an
Ex. 38 Page 119
Page 24
1 agreement dated August 15th, 1966, between National
2 Periodical Publication, Inc., which is DC's predecessor
3 in interest, and 20th Century Fox and Greenway
4 Productions, and Lester Tompkins Irwin Kuns and
5 George Barris, individuals doing business as Barris
6 Kustom City.
7 And, if you go to the last page...
8 A. (Witness complies.)
9 Q. Does that your signature on the bottom?
10 A. Yes.
11 Q. Okay. And this agreement seems to be about --
12 that you're going to build some additional Batmobiles
13 and exhibit them and split the money with DC Comics. I
14 don't want to put words in your mouth. That seems to be
15 what this agreement is about.
16 I'm just going to ask you: Do you entering
17 into this agreement?
18 A. Without reading each page, I would say yes,
19 since I have a signature on the back.
20 Q. Well, no. I'm asking you generally just what
21 you remember -- let me go back.
22 The show, Batman, came on. It was very
23 popular; correct?
24 A. Correct.
25 Q. And the car was very popular; correct?
Ex. 38 Page 120
Page 29
1 Q. What is your understanding of who owns the
2 design of the '66 Batmobile?
3 A. I do.
4 Q. Okay. And can you tell me your basis for that
5 understanding?
6 Why do you believe that?
7 A. Because I designed it and built it for what I
8 created, not from somebody else's drawings.
9 Q. And you never -- did you ever transfer any of
10 your design rights to a third party?
11 A. Not that I can recall.
12 Q. Okay. And in the -- in Paragraph 7, it talks
13 about that, and it -- it -- I'm just laying some
14 background.
15 It says:
16 "Any and all right, title and interest in
17 and to the design of Batmobile one, resulting
18 from the application of the required Batmobile
19 features in and to owners' prototype Lincoln
20 chassis -- you're "owner" -- save and except
21 for the name Batmobile and the Batmobile
22 features set forth in Article 10 hereof and in
23 the drawings and exhibits attached hereto.
24 And of the completed Batmobile one provided
25 for in Article 2, shall forever be vested in
Ex. 38 Page 121
Page 32
1 patent?
2 A. No.
3 Q. Did anyone in Greenway Productions ever tell
4 you that they should be owners of the design patent?
5 A. No.
6 Q. Did anyone from DC Comics ever tell you that
7 they should be joint owners of the design patent?
8 A. If they did, they would want it changed.
9 Q. But -- but I'm --
10 A. No.
11 Q. Okay, thank you.
12 Has anyone at DC told you that they believe
13 that you are not the designer of the '66 Batmobile?
14 A. Can't recall.
15 Q. Has anyone at DC ever told you that you are --
16 that they believe you are the designer of the '66
17 Batmobile?
18 A. Can't recall.
19 Q. Okay. Now, in the course of this litigation,
20 I've become privy to a number of letters sent over the
21 years, some from you, some from other people, involving
22 claims that you would make against people who were
23 exhibiting the Batmobile.
24 Do you recall ever notifying people who were
25 exhibiting the Batmobile that they could not exhibit the
Ex. 38 Page 122
Ex. 38 Page 123
Depo Ex. 501
Ex. 38 Page 124
Depo Ex. 501
Ex. 38 Page 125
Depo Ex. 501

Mark Towle Suit

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Mark Towle Suit

Hochgeladen von

Copyright:

Verfügbare Formate

Page 1

Declaration of Larry Zerner

Das könnte Ihnen auch gefallen