The Ninth Circuit Puts the Brakes on Eleanor’s Copyright Claim

Can a car be a copyrightable character? In Carroll Shelby Licensing v. Halicki, the Ninth Circuit said no — ruling that “Eleanor,” the iconic Mustang from ‘Gone in 60 Seconds,’ lacks the distinctiveness and consistency required for copyright protection.

In this episode of The Briefing, Scott Hervey and Richard Buckley break down the history of the Eleanor litigation, review the district court and Ninth Circuit rulings, and explain what it actually takes for a character to qualify for copyright protection.

Watch this episode on the Weintraub YouTube channel.

Show Notes:

Scott: Can a car be a character? Well, that’s the question at the heart of a long-running legal dispute over Eleanor, the muscle car made famous in the movie Gone in 60 Seconds. For years, the heirs of the original film’s producer claimed Eleanor was a protectable copyright character, and they tried to stop others, including Carroll Shelby licensing, from building or selling versions of that car. But the Ninth Circuit has now weighed in and has definitive shut that claim down. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Richard Buckley.

We’re going to talk about Carroll Shelby Licensing versus Halicki and what it takes for a character to receive copyright protection on today’s installment of The Briefing. Richard, welcome to The Briefing. This is a first for you. So, welcome.

Richard: Thank you for having me. It’s a pleasure.

Scott: Absolutely. Richard is one of our litigators, so that means we keep him in the back of the firm and chained up, feed him raw meat every once in a while, just to So not often enough. Keep him ready to battle. All right. This is right up your alley, a piece of long-running litigation with steadfast defendants and steadfast plaintiffs arguing their claim all the way up to the Ninth Circuit?

Richard: It’s a privilege of being older and experienced, I guess. But yes.

Scott: All right. Well, let’s get into this one. So the saga over the car, Eleanor, has been years in the making. It began with the 1974 film, Gone in 60 Seconds, which began as an independent action film written and directed by H. B. Tobi Halicki. In that film, Yellow, 1971, Ford, Mustang Fastback named Eleanor, is the featured car in a climactic 40-minute chase scene. The film became a cult hit, and Eleanor became an underground icon.

Richard: Right. In 2000, the movie, Gone in 60 Seconds, was remade by Disney and Jerry Bruckheimer, this time with Nicolas Cage behind the Wheel. Also in the remake, Eleanor is a Silver 1967 Shelby GT 500 Mustang. Very different look and different era. Still nicknamed Eleanor and still featured prominently.

Scott: Halecky passed away in 1989, and his widow, Denise Halecky, later acquired certain intellectual property rights associated with the 1947 film, including the original script and footage. Denise Halecky, the widow, also began asserting that Eleanor, the car, was a protectable copyright character. Over the years, she and her company sent legal threats or sued individuals and businesses who built or sold Eleanor replicas, or what she claimed to be Eleanor replicas, including muscle car maker, Carroll Shelby, a former race car driver and car designer who was played by Matt Damon in the 2019 movie, Ford versus Ferrari. Great movie, by the way.

Richard: Agreed. Those threats, Scott, culminated in the lawsuit that was filed by Carol Shelby licensing and Classic Recreations in 2020. They sought a declaratory judgment that Eleanor was not entitled to copyright protection and that Hyliki had no enforceable rights to stop them from building replicates.

Scott: So this case has been winding its way through the district Court for the Central district of California and the Ninth Circuit. There have been many starts and stops and twists and turns in this case. But a summary of the proceedings is as follows. So originally, the district Court sided with Shelby in Classic Recreations. The Court found that Eleanor, in both the 1974 original and the 2000 remake, lacked the distinctive attributes necessary for copyright protection as a character.

Richard: The Court emphasized that in the 1974 film, Eleanor was little more than a car with a name and a role in a chase scene. It had no anthropomorphic qualities, personality traits or development. The court also noted that Eleanor appeared differently in the two films, different models, different colors, different eras, undermining the argument that it was a consistent, protectable character.

Scott: Right. Haleke appealed to the Ninth Circuit, where the Ninth Circuit affirmed the lower court, the court reviewed its earlier precedent on character copyright ability, notably the DC comics versus towel case involving the Batmobile, and concluded that Eleanor did not meet the standard.

Richard: That, Scott, is a perfect segue for us to talk about what it takes to copyright a character.

Scott: Right. Let’s do that. Let’s take a look at DC comics versus towel. That’s a 2011 case involving the Batmobile. In that case, the court noted that the owner of a copyright in a work embodying a character can acquire copyright protection in the character itself. In determining whether a copyright protection protection may be afforded to characters, visually depicted in a television series or in a movie, the Ninth Circuit employed the standard known as the character delineation test. If a character is especially distinctive or constitutes the story being told, the character is entitled to receive protection separate and apart from the work in which that character appears. The court noted that characters that have received copyright protection, like and Rocky Balboa, have displayed consistent, widely identifiable traits.

Richard: In that case, the court said that the Batmobile is akin to the Godzilla character, which was the subject of its own copyright lawsuit. Although Godzilla assumed many shapes and personalities in the various Godzilla films, the court found that Godzilla had developed a constant set of traits that distinguished him, him, him, him, him or her or it from other fictional characters, thus meriting copyright protection.

Scott: Right. And not every character is entitled to copyright protection. One of the key findings to whether a character is entitled to copyright protection is whether that character is especially distinctive. To meet this standard, a character must be sufficiently delineated and displayed consistently with widely identifiable traits. The Ninth Circuit, in the Batmobile case, a three-part test to help determine whether a character is entitled to copyright protection. First, the character must generally have physical as well as conceptual qualities. Even if the character does not maintain the same physical appearance in every context. I mean, as we know, the Batmobile changed as did Godzilla. Second, the character must be sufficiently delineated to be recognizable as the same character whenever it appears. There’s no mistaken making Dracula when it appears. This means that the character must display consistent identifiable character traits and attributes, although the character need not have a consistent appearance. Third, the character must be especially distinctive and contain some unique elements of expression.

Richard: This is obviously a fact-specific and involved test.

Scott: Oh, absolutely. This is how the Ninth Circuit applied this test in the Batmobile case. The court found that because the Batmobile has appeared graphically in comic books and as a three-dimensional car in a television series in motion pictures, it has physical as well as conceptual qualities and is thus not a mere literary character, thereby satisfying the first factor. As for the second, the court found that the Batmobile was sufficiently delineated to be recognizable as the same character whenever it appears.

Richard: The court also noted that the Batmobile had maintained distinct physical and conceptual quality since its first appearance in the comic books back in 1941. The vehicle is equipped with high-tech gadgets, weaponry used to aid Batman in fighting crime. It’s almost always bat-like in appearance with bat emblems on the vehicle. The bat-like appearance has been a consistent theme throughout the comic books, television series, and motion pictures, even though the specific bat-like characteristics have changed from time to time.

Scott: That’s right. In addition to its status as Batman’s loyal bat-themed sidekick, complete with the character traits and physical characteristics you just mentioned, the Batmobile also has its unique and highly recognizable name. It’s not merely a stock character. Thus, the court found that the Batmobile is especially distinctive and contains unique elements of expression. So that’s how the court found the Batmobile to be a protectable character.

Richard: So now, let’s look at how the Ninth Circuit applied the toll test to Eleanor. First, the court looked at whether Eleanor is a character with physical and conceptual qualities. Does the character exist beyond a mere literary description? While Eleanor has physical qualities, it lacks any conceptual qualities. Eleanor has no anthropomorphic traits.

Scott: Right. Next, the court looked at whether Eleanor’s appearance is consistent. Is it sufficiently delineated to be recognizable as the same character whenever it appears across multiple works or iterations? I think Batman, right? Whether it’s Adam West or Christian Bale, the essential traits are the same. Here, in this case, the court said the answer is no. Eleanor’s physical appearance changed frequently throughout the various films.

Richard: Lastly, the court looked at whether Eleanor is distinctive and has a unique expression. The character must be more than a stock figure. It has to be sufficiently distinctive to constitute original expression. This is often the hardest factor to prove, and Eleanor failed here, too. The court said that Eleanor is not especially distinctive. Nothing distinguishes Eleanor from any number of sports cars appearing in car-centric action films.

Scott: This case reinforces that the threshold for character protection is high, and it prevents copyright from being used to monopolize common concepts like a fast car in a chase scene. It’s a win for fans, builders, and for creativity. It’s also a reminder that copyright isn’t meant to protect every reoccurring object in a film. All right, let’s talk about what this case means for filmmakers who want to create a protectable character. So let’s talk about some key strategies to keep in mind.

Richard: Okay, first, develop distinctive personality traits. It’s not enough to just give a character a cool name or a memorable name or a cool look. Courts want to see original expressive qualities like unique speech patterns, emotional depth, or consistent behavior. Think of characters like Jack Sparrow or Walee They stand out because they think, they act, and they respond to the world.

Scott: Right. R2d2 and C3PO for sure, or Chuy, Chewbacca. All right. Second, ensure consistency across appearances. If the character appears in multiple works, like R2D2 and C3PO, the core identity must be recognizable. In this case, the fact that Eleanor looked so different in the original film film and the remake undermine the argument that it was the same character.

Richard: Third, give nonhuman characters anthropomorphic traits. Courts are more likely to recognize copyright in a robot or a car if it behaves like a person. That might mean giving it a voice, facial expressions, or agency within the story. The Batmobile in DC comics versus toll passed this test, and in contrast, Eleanor didn’t.

Scott: Right. Fourth, avoid generic designs and tropes. A muscle car and a car chase isn’t enough. Copyright doesn’t protect ideas, only original expression. So even if your character starts with a familiar trope, you’ll need to add something unique to elevate it beyond just a cliché.

Richard: Number five, show, don’t just tell. Giving something a name like Eleanor doesn’t automatically make it a character. You have to show who the character is through storytelling, interactions, and a role in the plot.

Scott: Sixth, make the character central to the story. If the character is just a backdrop or a tool, like a vehicle, a weapon, or a setting, it’s harder to argue for copyright protection. Courts want to see that the character drives some portion of the narrative and has a meaningful arc or function.

Richard: Finally, my favorite step, document your development process. If protectability ever becomes an issue, being able to point to notes, concept art, character Bibles, or draughts can make a big difference in demonstrating originality.

Scott: Richard, spoken like a true litigator. The bottom line, copyright protection for characters is possible, but you have to earn it through distinctive, expressive storytelling. The ruling in Carroll Shelby Licensing versus Halicki reinforces that courts won’t extend protection lightly, and that’s a valuable lesson for every creator. Later. Well, that’s all for today’s episode of The Briefing. Thank you, Richard, for joining me today. And thank you, the listener or a viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe and leave us a review and share this episode with your friends and colleagues. If you have any questions about the topics we cover today, please leave us a comment.