The Bizarre Future of Batman Toys
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Winnie-the-Pooh and Mickey Mouse were canaries in the copyright coal mine. When the characters entered the public domain over the last two years, they inspired honey-pot horror movies and Mickey Mouse Does 9/11 memes. There’s money to be made off the available IP, but honestly not much. That will change over the next 13 years as DC heavyweights Batman, Superman, and Wonder Woman all enter the public domain. There will be movies, TV shows, 60-part TikTok holiday specials, and legal battles, but there will also be wild new merch and a lot of it.
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The key stipulation with characters entering the public domain is that certain versions do it one at a time, after 95 years of copyright protection. So expect an adorable BatMickey plush in Disney stores come 2035. Expect a Deadpool crossover action figure. Fans may be excited, but intellectual property lawyers should be pumped, too.
When the original version of a story or character becomes public domain, copyright law will generally allow the public to use that original version freely, Louis W. Tompros, a law professor at Harvard University specializing in IP law, tells SPY. So Batman entering the public domain in 2035 will be the 1939 version of the character. That Batman has a utility belt, as well as a helicopter-like “Bat-Gyro,” and a fiancé named Julie. No Riddler, Joker, or Robin in sight — yet.
“But if they wanted to try to stop copies of later versions… they would easily be able to use copyright law to stop that,” explains Tompros.
The obvious rub here is that an “original version” of a character isn’t always clear-cut. How much could a rival studio adapt OG Batman into a realistic, modern-day character without organically arriving at a version similar to Warner Bros. Discovery’s? Doesn’t it make sense that a real-life billionaire superhero would run around in an armored suit instead of spandex?
“The test is ‘substantial similarity,’” Tompros says. “Specifically, setting aside everything that is in the original public domain ‘Batman.’ Are the features of the new movie ‘substantially similar’ to other features of the 2005-2012 or 2016-2021 versions? An all-black armored suit might be enough to count as ‘substantially similar’ to a later version. Ultimately, how close counts as ‘substantial’ is a question for a jury to decide on a case-by-case basis.”
When it comes to merchandising, the bigger issue is trademark, which prohibits misleading consumers about the source of a product, according to Duke University. Trademark law prevents someone from selling something that uses a set of words or characters — such as “Batman” — that would suggest it came from someone else, in this case, Warner Bros, Tompros says. So a Batman logo is a landmine. But something like BatMickey becomes more and more likely. A cowl, a cape, a portmanteau — those are good enough clues for consumers to get their Batman fix without Disney, in this case, actually violating a trademark.
“As long as movie or TV [creators] use that imagery without calling them that name, then that would be fair game,” Alex Grand, author of Understanding Superhero Comic Books, tells SPY. “The big companies could try to suppress that, but probably couldn’t.”
Rebecca Tushnet, a Harvard Law School Professor specializing in copyright law, says that Sherlock Holmes is a good example of the type of headache Batman might cause in a few years.
With Sherlock Holmes — whose first stories entered the public domain in 1981 and whose last stories only did last year — “claimants to the estate have long harassed people making their own SH stories based on public domain works,” Tushnet says. As one example, the estate would claim that having Holmes show emotion was infringing on later stories — ones that were still in copyright — where he did so.
“And if you make merchandise, you may face DC/Warner Bros. arguing that consumers would believe that the merchandise came from them, even if you’re just using public domain elements of Batman,” she adds.
But people will still try to make merch. In 2011, for example, Warner Bros. successfully prevented nostalgia merchandise company AVELA from using public domain promotional images from The Wizard of Oz to make shirts, lunch boxes, and music box lids.
With all due respect to Dorothy and the Cowardly Lion, superhero merch may prove too lucrative to resist attempting. In 2016, the last year Warner Bros. released such a figure, the company said that it made $4.5 billion in DC Comics merchandise sales. That’s more than DC movies made that year — Batman v. Superman: Dawn of Justice and Suicide Squad earned about $1.6 billion cumulatively. The US toy market is expected to grow to about $46.19 billion by 2030, from $30.61 billion in 2023, growing at a CAGR of 6.05%, according to Research and Markets. And the retro toy market is thriving currently, with companies like Lego and Mattel shifting strategies to target adult nostalgia.
Which is all to say, it might be worthwhile for a company to piss off Warner Bros. Discovery once Batman 1.0 becomes a free agent. A homicidal clown once said, “It’s not about money… it’s about sending a message.”
Sure, but also… money.
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