IP Law Daily, COPYRIGHT—S.D.N.Y.: Writer of unauthorized Batman story who sued over 2022 movie found liable for infringement himself, (Mar 28, 2024)

By Thomas Long, J.D.

Not only did the writer’s claims against movie studio Warner Brothers fail, Batman owner DC Comics prevailed on claims that his derivative work violated copyrights associated with the character.

A writer and illustrator who had done intermittent freelance artwork for DC Comics infringed copyrights in the “Batman” character and other elements associated with that multimedia entertainment franchise by writing an unauthorized Batman story and submitting it for copyright registration, the federal district court in New York City has decided. DC Comics had sued the writer in response to his own copyright infringement complaint against Warner Brothers over the 2022 motion picture, The Batman, which the writer asserted was copied from his story. Granting summary judgment in favor of both DC Comics and Warner Brothers, the court determined that the writer’s story was an unauthorized derivative work for which he did not hold a valid copyright. The story “was rife with” copyrighted elements owned by DC Comics, the court said, such that no jury could find against DC Comics. Even if the writer owned rights in the story, there was no factual dispute, in the court’s view, that Warner Brothers lacked access to the work or that the movie was substantially similar to protectable elements of it (Wozniak v. Warner Bros. Entertainment Inc., March 27, 2024, Engelmayer, P.).

The defendants in the case are DC Comics—which owns numerous copyrights associated with thousands of works featuring the character of Batman and other copyrighted characters and elements, beginning with the character’s introduction in Detective Comics in March 1939—and Warner Brothers Entertainment, Inc.—which produced a movie in 2022 titled The Batman. The plaintiff is writer and artist Christopher Wozniak, who did freelance work for DC Comics from time to time between 1985 and 1999. None of the stories Wozniak wrote were accepted or published, but DC paid him for certain artwork he created for comic books. The contracts between Wozniak and DC contained a disclaimer stating that DC owned all preexisting material on which Wozniak’s derivative works were based, and that Wozniak would have no rights in that material. This included “the name and pictorial and literary representations of fictional characters, companies, places and things” in the preexistent content owned by DC.

Wozniak alleged that in 1990 he wrote a story originally titled “The Ultimate Riddle,” which he later retitled “The Blind Man's Hat,” with the goal of publishing it at DC Comics. The story contained numerous references to Batman characters, including Batman and his alter ego, Bruce Wayne, as well as several other familiar characters. The story also contained such familiar objects from the Batman universe, such as the Batmobile, Batcave, and Batman’s costume. Wozniak asserted that he pitched the story to DC editors between 1990 and 1999, but it was rejected every time.

Warner Brothers’ 2022 motion picture, The Batman, was marketed as a “reboot” of the franchise, with a different focus on the Batman character from earlier renditions. The film premiered on March 1, 2022, and generated over $369 million in domestic box office receipts. According to Wozniak, the movie copied major elements of his story, and was in fact structurally identical to it.

On August 9, 2022, Wozniak submitted a copyright registration application for the story, which he called on the application, “Wozniak Batman Riddler Plot.” He reported 1990 as the story's “Date of Creation.” He left blank the field in the application that asked whether the work contained any preexisting material. The Copyright Office issued the registration.

Wozniak filed suit on October 20, 2022, asserting that Warner Brothers directly, contributorily, and vicariously infringed his story by copying elements of his story and using them in The Batman. In its answer, Warner Brothers alleged that the story itself constituted copyright infringement as an unauthorized derivative work. Warner Brothers also asserted that Wozniak’s claims were barred by the doctrine of unclean hands. DC Comics moved to intervene and filed a third-party complaint against Wozniak, alleging copyright infringement and fraud on the Copyright Office. DC Comics and Warner Brothers then jointly moved for summary judgment.

DC Comics’ infringement claim—copyright ownership. Addressing DC Comics’ motion first, the court easily determined that DC Comics owned valid copyrights in Batman works. DC Comics contended that it held thousands of copyright registrations in Batman-related works, and it submitted a large representative sample of them. The registration certificates were prima facie evidence of ownership. The court rejected Wozniak’s argument that some registrations cited by DC Comics were in the names of other entities; DC Comics established that it was the successor-in-interest with respect to those registrations.

The court turned away Wozniak’s argument that DC Comics could not claim copyright protection in Batman or other characters in the Batman universe because they were merely “words and short phrases.” The court noted Second Circuit precedent holding that “characters and events” that “spring from the imagination” of authors are copyrightable, creative expression, and it cited previous cases indicating that DC Comics had copyright protection for the Batman character and other characters and elements related to the Batman franchise. “The Batman characters that Wozniak copied are entitled to copyright protection,” the court said.

Actual copying. DC Comics argued that Wozniak engaged in unauthorized copying by basing his story on DC Comics’ copyrighted works without authorization or consent. DC specifically alleged infringement of the Batman character itself, and asserted that he misappropriated other characters, such as Alfred the butler, Police Commissioner Gordon, the Riddler, and the Joker. According to the court, Wozniak’s story “liberally exploits—indeed, is rife with—Batman characters and story elements, and such is fatal to Wozniak as to both actual copying and substantial similarity.” Actual copying was established because Wozniak conceded that he intentionally created a Batman story using copyrighted characters and elements owned by DC. In the court’s view, “Wozniak's lifting of numerous characters and elements from the Batman Universe is obvious,” and there was no genuine issue of material fact as to this element.

Substantial similarity. The court next took little time in holding that there “plainly” was substantial similarity between Wozniak’s story and the elements protected by DC’s copyrights. Wozniak's Story is “explicitly based” on Batman, the court noted. Wozniak argued that any copying was done with DC Comics’ consent because he was encouraged to pitch story ideas involving characters from DC’s properties. This argument failed because the evidence—primarily Wozniak's own testimony—”at most could support that DC Comics consented to Wozniak's using Batman characters for the purpose of pitching artwork or scripts to DC Comics.” Nothing showed that DC consented to Wozniak’s creation of derivative works. In fact, the contracts between the parties showed that the contrary was true. The court therefore concluded that DC Comics was entitled to summary judgment, subject to a statute of limitations argument raised by Wozniak.

Statute of limitations. Wozniak contended that DC Comics' copyright infringement claim was barred under the Copyright Act’s three-year statute of limitations. The court was not persuaded. “DC Comics' copyright infringement claim is not barred by the statute of limitations for a simple reason: whether or not Wozniak earlier committed copyright infringement, he committed a separate act of infringement in 2022 when he filed the infringing Story with the U.S. Copyright Office,” the court explained. Wozniak necessarily reproduced and distributed his unauthorized work when he made and submitted deposit copies of it. Therefore, DC Comics was entitled to summary judgment on its copyright infringement claim.

Fraud on the Copyright Office. The court denied summary judgment, however, on DC Comics’ claim that Wozniak engaged in fraud on the Copyright Office. In the court’s view, the “deliberate nature” of Wozniak's failure to disclose preexisting material in his copyright registration application presented a factual issue. “The evidence DC Comics marshals, although sufficient to support a verdict in its favor, is insufficiently conclusive to compel entry of summary judgment on its claim of deliberate fraud on the Copyright Office,” the court explained.

Wozniak’s claims against Warner Brothers—copyright ownership. The court turned to Warner Brothers’ motion for summary judgment on Wozniak’s copyright infringement claims against it. The court first determined that Warner Brothers rebutted the presumption that Wozniak’s copyright registration established that he owned a valid copyright. “The undisputed evidence—the content of the Story, measured against DC Comics' copyrights—demonstrates that the Story is an unauthorized derivative work not entitled to copyright protection,” the court said.

Unauthorized copying—access. Even if Wozniak held valid copyrights, Warner Brothers was entitled to summary judgment on the issue of unauthorized copying because “based on the undisputed facts, Warner Brothers did not copy the Story in developing the movie The Batman, let alone do so without authorization,” said the court. Although Wozniak asserted that he had given copies of his story to DC executives, this was not enough to establish that Warner Brothers had the requisite access to it. Although it was “metaphysically possible” that Wozniak pitched his story in the 1990s to DC, DC furnished the story to Warner Brothers, and some 25 years later, the story came into the hands of the people who created the 2022 movie, the theory was “wholly speculative.” Moreover, no copies of the story were found at Warner Brothers (or DC). Other evidence indicated that Warner Brothers lacked access to the story.

Substantial similarity. As for the element of substantial similarity, the court noted that the initial step of separating copyrightable from non-copyrightable elements of the asserted work “vastly limits the range of Wozniak’s potentially viable claims.” In the court’s view, any elements that could have been copied from Wozniak’s story were unprotectable common plot features. “A reasonable finder of fact thus could not find the works at issue substantially similar,” the court said. Moreover, Warner Brothers came forward with substantial evidence of its independent creation of The Batman. The court therefore concluded that Wozniak’s copyright infringement claims failed.

The case is No. 1:22-cv-08969-PAE.

Attorneys: Robert Terry Parker (Law Office of R. Terry Parker) for Christopher Wozniak. James David Weinberger (Fross Zelnick Lehrman & Zissu, PC) for Warner Brothers Entertainment, Inc., and DC Comics

Companies: Warner Brothers Entertainment, Inc.; DC Comics

Cases: Copyright NewYorkNews GCNNews