Is a car in a movie copyrightable subject matter?

For Herbie the Love Bug, the answer is yes!  For “Eleanor” the Ford Mustang from Gone in 60 Seconds, maybe....

            The 9^th Circuit recently discussed copyright protection for characters in Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213 (9th Cir. Nov. 12 2008).  In this case, the owner of rights to the original 1974 film filed suit against famed Mustang manufacturer, Caroll Shelby, for merchandising activities resulting from Disney’s 2000 remake with Nicolas Cage and a pre-Brangelina Jolie. 

            The “original Eleanor” was a 1971 Fastback Ford Mustang, while “remake Eleanor” appeared as a 1967 Shelby GT-500.  While the primary issue before the was whether the licensing agreement for the remake included merchandising rights, the court was presented with a secondary question of whether or not a car is a copyrightable character.  

            Applying the test of whether the character is the story being told, the Halicki court suggested copyright protection may be available for Eleanor.  In particular, the court noted that in both the 1974 and 2000 remakes, the main character referred to his routine difficulties in stealing Eleanor the Mustang.  Furthermore, the court highlighted the similarities of Eleanor to copyrightable comic book characters, where features are “consistent, and widely identifiable”.  Speaking more to Eleanor’s penchant for avoiding theft, cosmetic differences between the two automotive models appeared to be of less consequence.  The court remanded to the district court, emphasizing examination of “physical and conceptual qualities [and]… unique elements of expression”.

In summary, Herbie the Love Bug is the story being told and certainly copyrightables, while Eleanor may just barely qualify.