IP Law Daily, COPYRIGHT—9th Cir.: Car in Gone in Sixty Seconds is not entitled to copyright protection, (May 28, 2025)

By Matthew Hersh, J.D.

The car was more of a prop than a character.

A car featured in a series of popular automative heist movies was not a copyrightable character because it did not have an identifiable personality and did not have distinctive physical traits that were consistently demonstrated throughout the series, the U.S. Court of Appeals for the Ninth Circuit has held. The court, in affirming a decision of the district court for the Central District of California, noted that the car did not act with agency and volition in the movies and was therefore “more akin to a prop than a character” (Carroll Shelby Licensing, Inc. v. Halicki, No. 23-3731 (9th Cir. May 27, 2025)).

At the heart of this case are four films: the original 1974 movie Gone in 60 Seconds, two 1980s spinoffs—The Junkman and Deadline Auto Theft, respectively—and the blockbuster 2000 remake, also called Gone in 60 Seconds, starring Nicholas Cage and Angelina Jolie. While the plotline of each movie varies, they all involve a protagonist who is tasked with stealing a number of motor vehicles. In each film, one or more of the cars is a Ford Mustang that goes by the name “Eleanor.”

The lawsuit is the latest in a long series of disputes between two would-be merchandisers of Eleanor-related products. Denise Halicki owns, through various corporate entities, the copyrights to the first three films and the merchandising rights to Eleanor as it appears in the 2000 remake. After that movie’s release, a licensing company affiliated with the late race-car designer and driver Carroll Shelby licensed a custom-made Mustang that, in Halicki’s view, unlawfully copied Eleanor’s design. The parties settled their differences in 2009, but the peace did not last. Shelby began licensing custom-made Mustangs again and then, after Halicki allegedly interfered with its merchandising, sued Halicki for breach of contract and declaratory relief. Halicki, in turn, counterclaimed for breach of contract and copyright infringement.

The trial court rejected Halicki’s breach of contract and copyright infringement claims, leading to this appeal.

Copyright infringement. The court of appeals affirmed the dismissal of the copyright claim. Central to the appeal was whether the car that featured in all four movies, Eleanor, could itself be copyrighted. Prior Ninth Circuit precedent, DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), establishes a test to determine whether a character is entitled to copyright protection: (1) the character must have “physical as well as conceptual qualities,” (2) the character must be “sufficiently delineated to be recognizable as the same character whenever it appears” and display “consistent, identifiable character traits and attributes,” and (3) the character must be “especially distinctive” and contain “some unique elements of expression.” The Eleanor character failed all three parts of the test, the court of appeals found.

The car failed the first test, the court noted, because it did not have the personal qualities that make up a fictional character. To be sure, the court acknowledged, most case law on the copyrightability of fictional characters has primarily focused on physical properties. “But equally important are the conceptual qualities that all characters inherently possess,” the court emphasized—such as acting with agency and volition, displaying sentience and emotion, expressing personality, speaking, thinking, or interacting with other characters or objects. Eleanor had none of these qualities, the court noted. Indeed, the court observed, the car never expressed sentience or emotion and it did not “speak, think, or otherwise engage or interact with the films’ protagonists.” In this way, the court noted, “Eleanor is more akin to a prop than a character.” Accordingly, it failed at prong one of the Towletest.

The car failed the other two prongs of the test as well, the court found. The car was not “sufficiently delineated to be recognizable as the same character whenever it appears,” the court reasoned, because in all four films Eleanor lacked consistent traits—indeed, the court observed, its physical appearance “changes frequently throughout the various films.” Nor was the car “especially distinctive,” the court noted. Unlike, say, the distinctive appearance of a car such as the Batmobile, the court found, “nothing distinguishes Eleanor from any number of sports cars appearing in car-centric action films.” Nor was the name Eleanor unique, the court noted: “Rather, it is a common female name—the normalcy of which was the entire point of codenaming vehicles in the films.” The copyrightability claim would fail.

Breach of contract. The court of appeals also found that the district court accurately rejected Halicki’s claim that Shelby breached the parties’ 2009 settlement agreement. The central question at issue, the court noted, was whether the agreement prohibited Shelby from manufacturing or licensing cars copying (1) any of Eleanor’s distinctive features or (2) only Eleanor’s distinctive hood and inset lights. The district court found that the second interpretation was correct, and the court of appeals agreed. Thus, because Shelby’s Mustang did not copy the hood and inset lights features of Eleanor, it did not breach the agreement.

Declaratory relief. The court of appeals differed with the district court on one point, however: its refusal to grant declaratory relief to Shelby. Here, the court of appeals noted, a declaration would “clarify and settle the legal relations at issue between Shelby and Halicki” and would afford Shelby “relief from the uncertainty giving rise to this proceeding.” Indeed, the court noted, Halicki issued a press release following the district court’s bench verdict “making it appear that she will likely continue to hassle Shelby going forward based on the denial of declaratory relief.” Halicki, moreover, the court found, “has a history of mischaracterizing this Court’s opinions.” The district court would be required to reconsider its refusal to grant Shelby the requested relief.

The Case is No. 23-3731.

Judge: Kernodle, J.

Attorneys: Caroline Hoadley Mankey (Akerman, LLP) for Carroll Shelby Licensing, Inc. David L. Brandon (Clark Hill, LLP) for Denice Shakarian Halicki.

Companies: Carroll Shelby Licensing, Inc.

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