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It's usually better to ask for permission rather than forgiveness

The U.S. Supreme Court recently rejected a petition for certiorari in a slightly-under-the-radar case, Towle v. D.C. Comics. The case involves unauthorized copies of the Batmobile that Mr. Towle built and sold. In this instance, Mr. Towle was building replicas of the Batmobile, but he had not asked for permission from DC Comics, the copyright holder of the underlying intellectual property.

Because the Court rejected the petition for certiorari, the last ruling in the case, from the Ninth Circuit Federal Court of Appeals, stands. In that decision, which is binding for the federal Courts in the 9th Circuit, including California federal courts, the court found that Mr. Towle had infringed DC Comics’s copyrights in the Batmobile as an “automotive character” and thus Mr. Towle needed DC Comic’s permission to reproduce copies of the Batmobile and sell them to collectors. With the Supreme Court’s denial of the petition for certiorari, Mr. Towle continues to be legally enjoined from producing Batmobile replicas.

What’s the takeaway from this case? There’s an old adage I occasionally hear from clients, “isn’t better ask forgiveness than to ask permission?” The answer is that when intellectual property is at stake, it is always better to ask for permission than forgiveness.

Much of the counseling I do for small creative enterprises involves minimizing the risk of litigation. Minimizing the risk of litigation requires discussing with clients their upcoming projects and determining whether there are any potential legal issues that should be resolved before the project begins.

In U.S. copyright law, there is a system in place to allow a person to use the intellectual property owned by another. It is as simple as asking for permission and being granted a license. While there may be costs involved in obtaining a license, including but not limited to legal fees and the license fee demanded by IP holder, those costs are dwarfed by the high cost of litigation, particularly in a case like this that was appealed all the way to the U.S. Supreme Court.

Although no client can ever be made completely litigation-proof or judgment-proof, if you are considering a project that will potentially make use of another person’s intellectual property, it is always advisable to request a license before starting such a project.

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