IP Law Daily, COPYRIGHT NEWS: Does copyright protect the car at the center of ‘Gone in 60 Seconds’? Supreme Court is urged to decide, (Oct 15, 2025)

By Matthew Hersh, J.D.

A new petition for certiorari asks the Court to decide the standard for protection of fictional characters.

The U.S. Court of Appeals for the Ninth Circuit rejected copyright protection for a car that was a centerpiece for several popular movies based on an “essentially standardless three-part test that contradicts an on-point decision of [the Supreme] Court and is at odds with the test applied by three other Circuit Courts,” a new petition for certiorari asserts. The petition, which asks the Court to resolve a putative circuit split over the standard for protecting a fictional character, also takes the court of appeals to task for imposing a requirement that a character possess “anthropomorphic” qualities in order to gain protection under the law (Halicki v. Carroll Shelby Licensing, Inc., No. 25-444 (U.S. filed Oct. 14, 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, and the court of appeals affirmed. A central question before the court of appeals was whether “Eleanor” was copyrightable as a character. A character is only protectable, the court noted, if it meets three tests: (1) it has “physical as well as conceptual qualities” and is “sufficiently delineated to be recognizable as the same character whenever it appears,” (2) it displays “consistent, identifiable character traits and attributes,” and (3) it is “especially distinctive” with “some unique elements of expression.” Characters like Mickey Mouse, Rocky, Superman, and even the Batmobile have qualified for protection under that test, the court of appeals noted. But Eleanor did not.

Eleanor 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 test.

Eleanor 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.”

Petition for certiorari. The petition takes on the court of appeals’ decision—and by association, the three-part test the court of appeals applied—on several grounds. First, the petition notes, the court of appeals erred by asking whether Eleanor has “anthropomorphic” qualities”—a requirement the petition asserts was “invented by th[e] panel, and based on no case law or statute.” The result, the petition asserts, is “confusion and an invitation to hairsplitting and subjective parsing of whether a character is ‘human’ enough for protection.” Indeed, taken to its limit, the petition notes, no “inanimate object in a blockbuster film” can be protected, “including, for example, the distinctive Death Star or Millennium Falcon from Star Wars.”

The court of appeals also erred, the petition asserts, in concluding that Eleanor does not “display consistent, widely identifiable traits.” To be sure, the petition acknowledges, Eleanor changes appearance between films—for example, within one movie, she “begins in pristine condition, gradually incurs serious damage, and reappears at the end in the ironic guise of a fixer-upper.” But the audience “always knows when the car character on the screen is Eleanor—just as the audience of a James Bond film recognizes 007 no matter whether he wears a tuxedo or bathing suit,” the petition asserts. The court’s errant conclusion on this score, the petition argues, shows that “whether a trait is ‘consistent’ or ‘widely identifiable’ is flatly subjective, and contrary to the standard that copyright protection depends on originality.”

Finally, the petition asserts, the decision of the court of appeals “deepens a split between the Ninth Circuit’s approach to this issue and the approach of the Second, Seventh, and Eleventh Circuits.” These circuits, the petition argues, hold that a character is protected by copyright “to the extent it is distinctive from a generic stock character.” This standard, the petition asserts, is “simple, predictable, and consonant with the principle of ‘originality: everything the Ninth Circuit’s standard is not.”

The question presented is: Is copyright protection for characters limited to only those characters that meet the Ninth Circuit’s three-element test? Or, as the Second, Seventh, and Eleventh Circuits have held, does copyright protect a character to the extent that it is distinctive from a generic stock character?

The Case is Dkt. No. 25-444.

Attorneys: Timothy T. Coates (Greines, Martin, Stein & Richland LLP) for Denice Shakarian Halicki, Eleanor Licensing, LLC, and Gone in 60 Seconds Motorsports, LLC.

Companies: Eleanor Licensing, LLC; Gone in 60 Seconds Motorsports, LLC; Carroll Shelby Licensing, Inc.; Carroll Hall Shelby Trust; Classic Recreation, LLC

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