In Carroll Shelby Licensing v. Halicki, No. 23-400 8 (May 27, 2025), the Ninth Circuit recently weighed in again on the scope of copyright protection for characters, denying protection to a series of Ford Mustangs called “Eleanor.” The cars appeared, in varying forms, in four separate films between 1974 and 2000. Eleanor first appeared in the original Gone in 60 Seconds film, which featured a team tasked with stealing 48 different types of cars. In order to discreetly reference the targeted cars, the team assigned each type of car a common female name. A yellow Fastback Ford Mustang with black stripes was named “Eleanor.”
Appellants and Cross-Appellees Denise Halicki and her corporate entities (together, “Halicki”) own the copyrights in the first three films, along with the merchandising rights to Eleanor as it appears in the remake. In the early 2000s, Appellees and Cross-Appellants Carroll Shelby Licensing Inc. and the Carroll Hall Shelby Trust (together, “Shelby”) produced GT-500E Mustangs. Believing that the car unlawfully copied Eleanor, Halicki sued Shelby for several claims, including copyright infringement. Halicki and Shelby settled that suit and, shortly thereafter, Shelby began producing a reimagined and revised version of the car, the GT-500CR Mustang. Halicki responded by sending cease and desist letters to the custom car shop building the GT-500CRs, auction houses selling them, and purchasers of the same. In response, Shelby initiated the current lawsuit for declaratory relief and breach of the settlement agreement; Halicki filed counterclaims for copyright infringement and breach of the settlement agreement.
The district court granted summary judgment for Shelby on most issues, finding that Eleanor was not a protectable character, and that the settlement agreement between the parties only precluded the recreation of specific characteristics embodied in Eleanor, which were not present in the GT-500CR Mustangs. The Ninth Circuit first considered Eleanor’s copyrightability, applying the test set forth in DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015). the Court analyzed whether Eleanor contained unique elements of expression, finding that nothing distinguished Eleanor from a great variety of other sports cars in action films. Even the name “Eleanor” is a common female name. Having found that Eleanor did not satisfy any of the prongs of the Towle test, the Court concluded that Eleanor is not entitled to copyright protection, affirming the district court judgment.