Does Fictional Hacking Software Used by Catwoman in The Dark Knight Rises Infringe on a Real-Life Trademark?

The U.S. Court of Appeals for the 7th Circuit recently heard the appeal of a trademark infringement suit arising out of Christopher Nolan’s 2012 blockbuster film The Dark Knight Rises, the latest installment of films featuring Gotham City’s Caped Crusader known as Batman along with other characters from the DC Comics universe. One such character, Catwoman, is portrayed in The Dark Knight Rises as attempting to use sophisticated hacking software to erase evidence of her criminal past from every computer and database throughout the world. While the software depicted in the movie, referred to as “the clean slate,” is entirely fictional, one e-security company brought a trademark infringement suit against Warner Bros. Entertainment, Inc., alleging that sales of its real-life desktop restoration product called “Clean Slate” declined after audiences witnessed Catwoman using “the clean slate” for an improper purpose.

The case was dismissed by the District Court for the Northern District of Indiana, which was affirmed by the 7th Circuit on appeal. In trademark infringement suits, courts consider the likelihood of consumer confusion; that is, whether the improper use of a trademark would cause the reasonable consumer to believe that both the legitimate and infringing uses of the mark originated from the same producer. While the plaintiff did register “Clean Slate” as a trademark, the court in this case found that even “unusually gullible hypothetical consumers” could not reasonably believe that Warner Bros. was actually licensing a “diabolical hacking tool” in connection with The Dark Knight Rises. Additionally, the court noted that Warner Bros. doesn’t even manufacture or sell software, making it very unlikely that a consumer in this instance would identify real and fictional goods of the same name as having originated from the same source.

While the use of the fictional “clean slate” software may not have been sufficient to prevent the sly and wily Selina Kyle from assuming the Catwoman persona, it was more than enough to draw a trademark infringement suit directed at Warner Bros. Entertainment in what is just the most recent example of sophisticated parties bringing intellectual property issues to the forefront of entertainment law. Holy trademark, Batman!

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

Holy Dollar Signs! Legal Considerations for Comics Creators

Comics are big business.  AMC’s hit reality show Comic Book Men was recently renewed for a fourth season, and comics-related content continues to dominate both in theaters and on television.  Amazon just announced that it would be acquiring comiXology, the leading platform for digital comics, and both businesses and individuals are constantly finding new ways to use webcomics to market their models, provide information to customers, and monetize their art.  As the comic book renaissance continues to blossom, it is important for businesspeople to understand the many legal issues associated with the creation, use, and protection of comics-related content.

When it comes to developing new content, many creators start and end their legal consideration with thoughts of copyrighting and/or trademarking their work.  While it is important and productive to rope off one’s original creations, artists also have to be sure they do not tread on others’ IP rights by over-borrowing or trading on the goodwill engendered by other content producers.  In their excellent comic, Bound by Law, scholars at Duke University’s Center for the Study of the Public Domain explore some of the tough decisions creators face in the process of creating new content.  One step too far, and artists could end up like the Air Pirates, who came out owing Disney thousands of dollars after a successful lawsuit over the infamous Air Pirates Funnies, or the award-winning creators of Saga, who had a digital issue of their series pulled from certain web platforms due to their use of risqué imagery.  When individuals collaborate on comics-related projects ‒ as writers and artists often do ‒ or when companies hire outside parties to design their content, matters can get even more complicated, as borne out in the large-scale battles over characters from the Spawn and Superman universes.

Still more legal issues come into play when it comes time for creators to publish, post, or sell their content.  From the artist’s side, the terms of any printing or publishing contract should be carefully scrutinized to ensure that the creator is getting the best deal possible and not inadvertently signing away valuable rights.  Important items to watch out for include any assignments of character or merchandising rights, or improper characterization of content as “work for hire.”  From the buyer or licensee’s side, it is important to ensure that the creator is not trying to hold back valuable rights that would allow the creator to use or re-sell content in ways that would result in a loss of the benefit of the bargain.  In every case, a full and accurate description of both the content at issue and the applicable pricing schemes will cut down on confusion.

Once content is made available to the public, yet another set of issues comes into play.  Principal among these is the need to start policing the creator’s brand.  Comics ‒ especially webcomics ‒ lend themselves to easy appropriation, and creators can lose revenue when their content is inappropriately copied.  Creators also have to guard against their content’s being twisted in ways that might harm the creator’s brand; My Little Pony: Friendship is Magic is a far cry from My Little Pony: Fighting is Magic, and brand-conscious parties must be on constant guard against tarnishment.

The world of comics is primed to yield big financial rewards for savvy business people, but it is critical that both creators and content users stay on top of those legal issues that might crop up in comics-related transactions, and control for them as much as possible.

Ryen Rasmus is an associate attorney practicing in the Entertainment and Music Industry Law Group of Berenzweig Leonard, LLP.  He can be reached at RRasmus@BerenzweigLaw.com.