It is hereby agreed on this 1st day of September, 1965, TWENTIETH CENTURY-FOX TELEVISION, INC., and GREENWAY PRODUCTIONS, INC. thereinafter referred to as “Producer”, and LESTER E. TOMPKINS, IRVIN KUNS and GEORGE BARRIS, individuals doing business as Barris Kustom City (a partnership), hereinafter referred to as “Owner”, as follows:
1. Owner shall mechanically and structurally construct and modify the interior and exterior of its proto-Lincoln Chassis pursuant to and in accordance with:
(a) Those three (3) certain drawings of the “Batmobile” motor vehicle (hereinafter referred to as “Batmobile 1”) prepared by Owner at the request and direction of Producer and heretofore delivered to Producer,
(b) Those three (3) certain sketches and one (1) working drawing subsequently prepared by Producer and delivered to Owner which alter and modify said drawings prepared by Owner, and
(c) That certain list of requirements heretofore delivered to Owner by Producer which are to be included in
Copies of the sketches and working drawing referred to in subparagraph (b) above and a copy of the list of requirements referred to in subparagraph (c) above are attached hereto and marked Exhibits “A” through “B”, inclusive, and made a part hereof. Owner shall initial each said exhibit at the place provided thereon concurrently with the execution of this Agreement.
2. Owner is to complete the aforesaid construction and modifications of Batmobile 1 and deliver said Batmobile 1, so constructed and modified, to Producer at 10201 West Pico Boulevard, Los Angeles, California, no later than October 11, 1965.
3. Producer shall pay to Owner the following sums:
(a) Five Thousand Dollars ($5,000.00) upon execution of this agreement by Owner.
(b) Four Thousand Dollars ($4,000.00) if merchandising rights are obtained as provided for in Article 8 hereof prior to the commencement of the pilot motion picture tentatively entitled “BATMAN” (hereinafter referred to as the “Pilot”), or Nine Thousand Dollars ($9,000.00) upon completion of principal photography of the Pilot if said merchandising rights have not been obtained prior thereto.
Said sums are subject to recoupment by Producer from the net profits of merchandising rights, if any, are provided for in Article 8 hereof.
Producer shall not be obligated to utilize the Batmobile 1 in the Pilot or in the episodes of any television series based thereon. Producer’s sole obligation, subject to the terms and conditions hereof, is to pay Owner the compensation herein provided for.
4. If Batmobile 1 is not constructed and modified, and delivered to Producer, as herein provided for in Articles 1 and 2, respectively, then this Agreement shall be null and void and Owner shall immediately reimburse Producer in the sum of Five Thousand Dollars ($5,000.00).
5. Producer may, without the payment of additional consideration to Owner, retain possession of Batmobile 1 for such period of time as Producer may require to complete principal photography of the Pilot.
Upon completion of the Pilot, Producer will deliver Batmobile 1 to Owner as Producer’s place of business.
6. Owner grants to Producer the alternative options to (i) either rent Batmobile 1 from Owner at the rental rate of One-Hundred Fifty Dollars ($150.00) per day (during which rental time Producer shall retain possession of Batmobile 1) or, (ii) to require Owner to construct and sell to Producer a motor vehicle (hereinafter referred to as “Batmobile 2”) which shall be identical, except for the chassis or may be otherwise be mutually agreed upon, to Batmobile 1, at a cost of not less than Ten Thousand Dollars ($10,000.00) or more than Twelve Thousand Dollars ($12,000.00). Either of said options may be exercised by Producer by written notice to Owner any time prior to August 15, 1966.
7. Any and all right, title and interest in and to the design of Batmobile 1 resulting from the application of the required Batmobile features in and to Owner’s proto-type Lincoln chassis, save and except the name “Batmobile” and the Batmobile features set forth in Article 10 hereof and in the drawings and exhibits attached hereto, and of the completed Batmobile 1 provided for in Article 2 hereof, shall forever be vested in and owned jointly by Owner and Producer, subject only to any and all right, title and interest of National Periodical Publications, Inc. (herein referred to as “National Periodical”) in and to said Batmobile features in said design.
8. Subject to the approval first had and obtained in writing from National Periodical, Producer shall have the right to acquire and own all or any part of the merchandising rights in and to Batmobile 1 and II. Merchandising rights are defined herein as the right to license the use of the design of Batmobile 1 and II in connection with such items as clothing, toys, games, jewelry and replicas thereof.
Out of one hundred per cent (100%) of the gross profits received from such merchandising rights in and to Batmobile 1 and II Producer shall deduct and pay all costs and expenses incurred in connection therewith and thereafter the net profits from said merchandising rights shall be divided and distributed as follows:
(a) A sum equal to twenty-five per cent (25%) shall be paid to Greenway Productions, Inc.
(b) A sum equal to twenty-five per cent (25%) shall be paid to Twentieth Century-Fox Television, Inc.
(c) A sum equal to twenty-five per cent (25%) shall be paid to Owner.
(d) A sum equal to twenty-five per cent (25%) shall be paid to American Broadcasting Company.
Not withstanding the foregoing division of net profits, if National Periodical demands a percentage of the net profits from the aforesaid merchandising rights, then such percentage shall be deducted pari passu from the shares of Greenway Productions, Inc., Twentieth Century-Fox Television, Inc., Owner and American Broadcasting Company. If American Broadcasting Company waives or refuses its aforesaid percentage of the net profits, then such percentage shall be divided and distributed pari passu to Greenway Productions, Inc., Twentieth Century-Fox Television, Inc., and Owner.
If such merchandising net profits are realized then (i) prior to dividing and distributing any such shares of net profits, Producer shall deduct from such total net profits the sum of Nine Thousand Dollars ($9,000.00) or Fourteen Thousand Dollars ($14,000.00), whichever is applicable, to recoup the cost of constructing and modifying Batmobile 1 as provided for in Article 2 hereof and (ii) if Producer exercises the option to rent Batmobile 1 as provided for in Article 6 (i) hereof, Producer shall deduct from such merchandising total net profits from all the rental fees of Batmobile 1 in excess of Ten Thousand Dollars($10,000.00) to recoup the cost of such excess rental fees.
9. Owner shall have the right, subject to the approval first hand and obtained from Producer, to exhibit Batmobile 1. Owner shall send written notice to Producer, to exhibit Batmobile 1. Owner shall send written notice to Producer, at Box 900, Beverly Hills, California, stating therein the place and address of, and length of time and dates of such exhibition. Upon receipt of thereof, Producer shall have five (5) business days in which to approve or refuse any such exhibition, If Producer fails to act within such time, Owner may exhibit Batmobile 1. Producer shall not unreasonably refuse such approval.
Any proceeds received from such exhibition shall belong to Owner.
If Owner constructs and sells Batmobile 2 to Producer, then at such time, Owner may exhibit Batmobile 1 without the approval of Producer as to the time and place, but still must have Producer’s approval as to surrounding circumstances that might in any way conflict with the interest of the network, sponsor or Producer.
Producer shall have the right, at its sole cost and expense and without the payment of any consideration therefore to Owner, to exhibit Batmobile 1 during such times that Owner is not exhibiting the same, and Batmobile 2, if ordered, at any time.
10. Nothing herein provided shall limit, restrict or prevent Producer from having other individuals, partnerships or corporations prepare drawings and sketches, to construct and modify, and to sell or lease to Producer other “batmobile” motor vehicles; provided, however, that neither Producer nor such other individuals, partnerships or corporations may exactly duplicate Batmobile 1 or use the design of Batmobile 1 or Batmobile 2 as set forth in the drawings and exhibits “A” through “D”, inclusive, or as completely constructed and modified as provided for in Article 1, 2 and 7 hereof, and as resulting specifically from the application of the required batlike features to Owner’s chassis except for the use of the name “Batmobile” and such “batmobile” features as the Batface, Bateyes, Batwing Rear Fenders, double cockpit, cockpit arch, jet intakes and exhaust and the requirements set forth in Exhibit “E”.
11. Owner shall not sell, license, assign, utilize in any manner or enter in to any agreements or commitments respecting the design as set forth in the drawings and exhibits specified in Article 1 hereof or the design of either Batmobile 1 or Batmobile 2, or both, nor construct or build, in whole or part, duplicates or recognizable modifications of either Batmobiles without the written approval of Producer first had and obtained.
12. Owner represents and warrants:
That either Batmobile 1 or Batmobile 2, or both, shall be modified and constructed by Owner in good, skillful and workmanlike manner, free from defects in material, labor and workmanship, for the purposes for which they are intended, to wit: television motion picture production, and may be operated on public streets and highways free from any dangers inherent therein.
Owner shall indemnify and hold Producer harmless from and against any and all claims, demands or causes of action on account of injury to or death of any person or persons or on account of of damage to or destruction on any property in any wise resulting from or arising out of misrepresentation or breach of warranty or any negligence in the construction and modification of Batmobile 1 or Batmobile 2, or both, so long as Producer makes no substantial modifications thereto.
13. Producer represents and warrants that Batmobile 1 will be operated only by such agents, servants or employee who are licensed by the State of California to operate motor vehicles.
14. Producer shall indemnify and hold Owner harmless from and against any and all claims, demands or causes of action or on account of damage to or destruction of any property in any wise resulting from or arising out of negligent operation of Batmobile 1 by Producer’s agents, servants or employees.
15. Producer shall be liable for any loss or damage to Batmobile 1 from any acts or omissions of its agents, servants and employees during such periods as Producer has possession of same and any damage caused thereby to Batmobile 1 shall be repaired by Producer at its sole cost and expense.
16. Each of the parties hereto shall at their sole cost and expense, maintain or procure and maintain public liability, property and fire insurance on Batmobile 1 during such times as the parties have possession thereof.
17. Upon completion of the Pilot as provided for in Article 5 hereof to and including the exercise of either of the options provided for in Article 6 hereof, Owner shall at its sole cost and expense, keep and maintain Batmobile 1 in a neat, clean, orderly and efficient operating condition.
18. Owner may not assign this Agreement without the approval of Producer first had and obtained.
19. This Agreement shall inure to the benefit of Producer, its successors and assigns, forever.
20. The cost of modifications not provided for in Exhibit “E” attached hereto and made after delivery to Producer of either Batmobile 1 or Batmobile 2 shall be at Producer’s sole cost and expense.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year hereinabove written.
TWENTIETH CENTURY-FOX TELEVISION, INC.
GREENWAY PRODUCTIONS, INC.
BARRIS KUSTOM CITY.
EXHIBIT “E” BATMOBILE REQUIREMENTS
Owner shall either provide and install or provide for the installation of the following items:
1. The Switches and Hand-throttle knob for the Turbo-electric Drive.
2. The Bing-Bong Warning Bell and Bat-Light Flasher.
3. The Mobile Phone between the seats with Beeper and Flashing Light.
4. The Batscope, with TV-like Viewing Screen on the dash with control buttons and Radar-like Antenna with aimable parabolic Reflector outside, with cockpit controls.
5. Anti-theft System- Flashing Red Lights- Piercing Whistle- Little rockets built into tubes at the back of the cockpit that fire straight up with a fiery whoosh.
6. Anti-fire Control System- Flood of Foam from Secret Nozzle.
7. Turn-off switch for Protection Systems.
8. Radar-like screen that Beeps and Blips and points an arrow as it picks up Robin’s directional signal.
9. Mechanics for Emergency Bat Turn- Red Lever so named on Dash- Reverse Thrust Rockets beneath headlights- Ejection Parachute Mechanism at rear.
10. Bat-Ray Projector Mechanism- Lever on Dash so names- Hood Hydraulic Projector Device. (With possibility of ray coming from Bat-Eyes).
11. Portable Fire-Extinguisher.
12. Receiver and Sender Computer to be installed in trunk of Batmobile.
13. Bat symbols on hubcaps.
14. The color of the Batmobile and the Bat Symbols to be placed thereon shall be mutually agreed upon between Owner and Producer prior to the completion of the Batmobile.
15. Special luminescent paint to define Bat outline at night, the placement of which shall be mutually agreed upon between Owner and Producer prior to the completion of the Batmobile.
1) EXHIBITION AGREEMENTS – National Periodicals; Barris Kustom City ; Fox and Greenway
2) SIDE AGREEMENT – Barris Kustom City ; Fox and Greenway
In the Exhibition Agreement, Barris is given the right to exhibit duplicates of the Batmobile, and in the Side Agreement, Fox and Greenway acquire the right to continued use of the existing model free of rent and completely refurbished mechanically and bodily and subsequently maintained at Barris’ sole expense.
In the exhibition agreement, National Periodicals get 12 ½% of the first $50,000 of exhibition income on each of two cars and 25% thereafter and Fox and Greenway share in this royalty on the same basis as they do in merchandising income.
Additional duplicate cars can only be built with Fox and Greenway’s consent and the duplicate models can only be exhibited for so long as Fox and Greenway continue to use the existing design in production.
In this side agreement, Fox and Greenway waive the right to recoup from merchandising income accruing from this specific design of the Batmobile, the cost of the first car and rental in excess of $10,000 before any participation by Barris. It is questionable, however as to whether Barris would be entitled to any a share of merchandising income in the firs place, as the original Batmobile Agreement was deliberately worded to make Barris’ participation conditional on Fox and Greenway acquiring and handing merchandising rights, which, of course, they never have. However, even if he were to be adjudged entitled to share in merchandising income accruing from National Periodicals owning and handling merchandising rights, the amount waived is small by comparison to the saving on rent and the elimination of the “headaches” of the past year, – with the offset, also, of whatever new income share Fox and Greenway get from exhibition royalty.
In the side agreement the waiver was deliberately not made part of the consideration, so that in the event of Fox and Greenway subsequently denying Barris’ right to any merchandising share, he could not in return claim the consideration was void. The consideration for the side agreement is specified as Fox and Greenway’s consent to his building two duplicates for exhibition.
In this side agreement it is specifically set out that in the event of any further disputes, Barris is limited to any right he may have in damages but Fox an Greenway retain the continuous uninterrupted possession of the car, – and he can only pick it up by signing a document containing a guaranteed redelivery date.