Background

‘Eleanor’ is the designated pseudonym for several Ford Mustangs that appeared inter alia in Gone in 60 Seconds (1974) and its remake of Gone in 60 Seconds (2000).

In both movies, several robbers assign “common, feminine codename[s]” to the cars they will be stealing. In the original movie, one such car is a yellow Fastback Ford Mustang with black stripes. In other words: Eleanor.

In the remake, Eleanor is a Ford Mustang Shelby GT-500, appearing first in grey with black stripes and, at the end of the movie, in a rusty condition without any stripes.

Carroll Shelby Licensing, Inc., and Carroll Hall Shelby Trust licensed a custom car shop to produce GT 500E Mustangs. After Halicki accused Shelby as well as the car shop of copyright infringement, they reached a settlement. However, after some time, Shelby licensed Classic Recreations, LLC to produce GT-500CR Mustangs. As they were again highly similar to Eleanor, Halicki interpreted this as a breach of the earlier settlement and demanded a cease-and-desist from Classic Recreations.

Failing to obtain a satisfactory result, Halicki unsuccessfully claimed that Shelby and Classic Recreations (respondents) infringed her copyright in Eleanor before the district court. Halicki appealed.

Court of Appeals’ decision

It was stated that Eleanor might be a copyrightable character by the same Court in the dicta of a previous case. However, neither the analysis of the district court nor the de novo review of the Court this time led to the same conclusion.

Although the Court acknowledged that US copyright law has expanded in such a way as to cover “graphically-depicted characters” [Daniels v. Walt Disney Co., 958 F.3d 767, 771 (9th Cir. 2020) and IPKat here], Eleanor failed all three parts of the Towle test and thus was held to be ineligible for character copyright.

A refresher on the Towle test

1. Having “physical as well as conceptual qualities”

Characters need to have “anthropomorphic qualities”, such as acting with agency, demonstrating emotions, expressing personality traits, thinking, and interacting with their surroundings to enjoy copyright. Although all these seem to suggest that only human characters can meet the first part of the test, the Court has explicitly demonstrated that animals (e.g., Mickey and Minnie Mouse), monsters (e.g., Godzilla), and objects (e.g., Batmobile – IPKat here) can also qualify for copyright protection, so long as they demonstrate a level of autonomy, substantial intelligence, or personality. Eleanor, however, does not talk, interact with others, or express emotions. Moreover, unlike the Batmobile, Eleanor does not “politely” stop for children to pass across the road (see p.11 of Carroll Shelby Licensing, Inc. v. Halicki).

Eleanor does not have specific physical qualities either. Although its shape is largely consistent, its colour and the stripes it has changes across the relevant movies – and within the last movie. It is, of course, possible for a character to change its appearance, for example its clothes, hair colour, throughout a movie and still be considered the same copyrightable character. However, calling numerous cars with the same name and arguing that they are the same car, and thus the same character, does not sound persuasive.

2. Being “sufficiently delineated to be recognizable as the same character whenever it appears” and displaying “consistent, identifiable character traits and attributes”

Upon seeing the relevant car(s), the audience needs to immediately recognize them as Eleanor. However, as revealed by the Court, the audience, especially in the latter film, does not identify the cars as Eleanor, until introduced as such. Although Halicki claimed that Eleanor is always “incurring severe damage”, “hard to steal”, “good at evading police”, and can survive “spectacular jumps”, the frequent change in its appearance, the inaccuracy of some of these traits, and the belonging of some of them to the driver, instead of the car itself, prevented the Court to conclude that Eleanor is sufficiently delineated and recognizable due to its foreseeable and autonomous traits.

3. Being “especially distinctive” and containing “some unique elements of expression.”

The Court, finally, stated that nothing distinguishes Eleanor from other sports cars in car-centric movies and provides distinctiveness to it. Whereas the Batmobile has a “bat-like” appearance and stands out from other cars given its ability to reach exceptionally high speeds, Eleanor does not demonstrate such unique characteristics.

Comment

Following up on the above, the Court noted that ‘Eleanor’ is a common name, which it considered a factor weighing against a finding of uniqueness and distinctiveness. However, this emphasis seems misplaced. A character’s name needs not be distinctive in itself to lead to copyright protection of the underlying character, nor should a common or banal name undermine the character’s overall distinctiveness. A character with an ordinary name may still possess unique features that make it eligible for protection. For instance, ‘Batmobile’ is not a particularly inventive name – it is merely the combination of ‘Batman’ and ‘automobile’. In fact, it is a highly descriptive label for Batman’s vehicle. Yet, it was not the name but the distinctive features that granted it copyright protection.

While reading the decision, this Kat could not help but think about and compare Eleanor to Lightning McQueen and his friends, who all have distinctive and specific colours, smiles, mimics, styles, tempers, and turns of expression, that are more or less consistent throughout the several movies, which Eleanor apparently lacks. Although Eleanor was not required to come to life like Lightning McQueen (as can be understood from the copyright protection the Batmobile was granted), it still needed to have some qualities that could have rendered it a character. 

The decision at hand seems to have clarified at least 2 important points for future character copyright cases. First, it emphasises that there is a significant distinction between props and characters, and just because a prop appears quite frequently in a film and constitutes a substantial part of the story, it cannot upgrade to a character and thus enjoy copyright protection on its own. Second, although it is reasonable and justifiable for certain iconic characters to enjoy copyright on their own, such as Harry Potter, Mickey Mouse, and Godzilla, the expansion of copyright to fictional characters should be limited at some point. Easily replaceable or non-distinctive characters (or props), or the ones built for fulfilling a specific aim in the plot should, at most, enjoy copyright protection as part of the movies they appear in, definitely not on their own.

Movies create an alternative, fictional world to tell the audience a story and to take it to a journey. In order to provide these experiences to the audience, they need to be convincing and meticulously planned at the production stage. This inevitably requires the creation and construction of various props, costumes, scenes, and characters. If copyright law, in addition to providing copyright protection to the end-product (i.e., the film), were also to protect each interesting or creative item and character appearing in the film independently, then there would be a floodgate of copyright claims, arguably hindering the use of same or similar items and look-alike characters and props in several movies. This would, in turn, shrink the public domain and prevent third parties from building on or innocently borrowing from others’ creations to tell new stories. Although characters are some of the most substantial components of a story, it may be difficult to justify their protection separately as they usually are a means of turning ideas (i.e., the plot of a movie) into original expressions (i.e., the movie itself) – not the expressions themselves.

Source: https://ipkitten.blogspot.com/2025/07/eleanor-prop-or-character-us-court-of.html