Denice Shakarian Halicki, et al. v. Carroll Shelby Licensing, Inc., et al.

In the published opinion below, the Ninth Circuit affirmed summary judgment in favor of respondents on petitioners’ copyright infringement claims. The Ninth Circuit held that the car character Eleanor, a uniquely customized Fastback Mustang that is the centerpiece of the Gone In 60 Seconds film franchise, is not entitled to copyright protection. Petitioners sued respondents for, among other claims, copyright infringement, based on respondents’ producing and selling full-scale reproductions of the Eleanor car character from the Gone in 60 Seconds remake. The Ninth Circuit’s holding limits copyright protection to characters that display “anthropomorphic qualities,” such as “sentience”; possess consistent, identifiable traits; and are “especially distinctive.” The question presented by this petition 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? See Silverman v. CBS Inc., 870 F.2d 40, 49–50 (2d Cir. 1989); Gaiman v. McFarlane, 360 F.3d 644, 659–61 (7th Cir. 2004); Herzog v. Castle Rock Ent., 193 F.3d 1241, 1258–59 (11th Cir. 1999).