Larry Zerner (SBN 155473) Law Offices of Larry Zerner 1801 Century Park East, Ste.

2400 Los Angeles, CA 90067 (310) 773-3623 (310) 388-5624 Fax Email: Larry@ZernerLaw.com Attorneys for Plaintiff Mark Towle, An individual and d/b/a Gotham Garage UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DC Comics, ) Case No.: CV11-3934 RSWL (OPx) ) Plaintiff, ) ) Declaration of Mark Towle in Support v. ) of Defendant s Motion for Partial ) Summary Judgment ) Mark Towle, an individual and d/b/a Gotham Garage, and Does 1 10, ) Date: January 30, 2013 inclusive, ) Time: 10:00 a.m. ) Courtroom: ) ) Trial Date: March 26, 2013 Defendants. ) Pre-Trial Conference: March 12, 2013 ) Discovery Cut-Off: November 27, 2012 ) ) ) ) I, Mark Towle, declare as follows: 1. The facts set forth in my declaration are known personally by me to be true and correct, and if called upon as a witness, I could and would competently test ify

thereto. 2. I am the Defendant in this lawsuit. Since 2001, I have run a business Page 1 Declaration of Mark Towle

making replicas of famous cars such as the Mach 5 from the Speed Racer cartoon, the Munster coach and the Flinstones car. I have also made and sold replicas of the Batmobile created by George Barris for the 1966 TV show Batman ( the 1966 Batmobile) and the 1989 Batman motion picture created by Anton Furst ( the 1989 Batmobile ). 3. I have had a website to promote my business. It was first located at www.marktowle.com and then I moved the domain to www.gothamgarage.net. I have never hid my activities as a person who created replica Batmobiles and for at least the last 10 years, DC had actual or at least constructive knowledge of my activities. 4. In 2003, I received a phone call from Cindy Nelson at Warner Bros. who I later learned was the Vice President & Senior Anti-Piracy Counsel for Warner Bros. Entertainment. Ms. Nelson had seen a photograph on the Internet that showed my garage. In the photograph, a number of 1966 Batmobile replicas, in various stages of creation, could be seen. There was also a shell for a 1989 Batmobile replica. Ms. Nelson asked me what I was planning to do with the 1989 Batmobile shell. I informed her that I was not going to do anything with the she ll until the design patent expired in 2004. At no point in the conversation did Ms. Nelson ever inform me that DC Comics or Warner Bros. believed that I was . Page2. DeclarationofMarkTowle.

infringing their copyright or trademark. 5. At no point prior to receiving this lawsuit did I ever receive any notice fro m DC, either on the phone, by mail, or by any other means, stating that they belie ved I was infringing their copyright or trademark by selling replica Batmobiles. 6. During the past 11 years I have expended tens of thousands of dollars building up my business. I am nationally known as one of the finest designers of replica Batmobiles in the world and I have been contacted by people all over the country to build them replica Batmobiles. Although I build other replica s about 60% of the replicas I made are Batmobile replicas. I have purchased well over $100,000 in specialized tools used in manufacturing the Batmobile replicas. Had DC informed me that they believed that my activities infringed their copyright o r trademark I could have addressed this problem years ago by filing a complaint fo r declaratory relief. 7. Now that DC has recognized that there is a market for replica Batmobiles, they want to shut me down and say that only one person (Mark Racop at Fiberglass Freaks) can build replica Batmobiles. During the pendency of this lawsuit, on th e advice of my attorney, I have had to turn down a number of offers from potential buyers, costing me well over $100,000 in damages. 8. Please note that when people speak about Batmobiles, especially the 1966 Page 3 Declaration of Mark Towle

Batmobile, they are really only talking about one car. In the case of the 1966 Batmobile it is the car that George Barris built in 15 days using the Lincoln Fu tura as the base and was basically the only one ever used on the TV show. In the case of the 1989 Batmobile, it would be the one that appeared on screen in the movie. Everything else is considered to be a replica Batmobile 9. When customers come to me, they all understand that they are asking me to build a replica of the George Barris designed car or the Anton Furst designed ca r. George Barris owns his Batmobile (known as Batmobile 0011). All of my customers understand that I am building them a replica of that car (or the 1989 Batmobile) and know that I do not have a license or any affiliation with DC Comics and I make sure they know that by telling them. 10. When I build a replica Batmobile now it takes about 12 months to deliver and I charge approximately $90,000 (although the price has fluctuated over the years. The people who buy replica automobiles from me are typically very wealthy (as you would have to be to spend $90,000 on a replica Batmobile) and sophisticated consumers. They usually know the entire history of the Batmobile and are avid car collectors. Under no circumstances do they think that because t he 1 It was recently announced that George Barris is planning on selling the Batmobile 001 at auction in January 2013. It is estimated that the car will sell for millions of dollars. Page 4 Declaration of Mark Towle

word Batmobile is sometimes used to describe the car, or because the car contain s a bat emblem on it, that the car they buy from me is licensed by DC Comics. 11. That being said, out of an abundance of caution, and to avoid needless entanglements with DC Comics, when I advertise the car, I refer to it as the Gotham Prowler. 12.The 1966 Batmobile replica that I make is based on George Barris design patent which was registered in 1966 and expired in 1980. 13.The 1966 Batmobile replica that I make does not have the following features: a. the "Bing-Bong Warning Bell" and "Bat-Light Flasher"; b. anti-theft system, consisting of flashing red lights, piercing whistle, little rockets built into tubes at the back of the cockpit that fire straight up with a fiery whoosh; c. anti-fire control system, consisting of a flood of foam from secret nozzle; d. turn-off switch for protection systems; e. mechanics for emergency bat turn with a red lever so named on dash, reverse thrust rockets beneath headlights, and ejection parachute mechanism at rear; Page 5 Declaration of Mark Towle

f. bat-ray projector mechanism with lever on dash so named, hood hydrolic projector device, and ray coming from Bat-Eyes; g. receiver and sender computer to be installed in trunk of Batmobile; h. luminescent outline of Bat symbol to define symbol at night. i. Bat Face j. Bat Eyes 14.The front grill work of the 1966 Batmobile replica is not separable from the car. 15.The part that Plaintiff describes as the jet engine exhaust pipe is not actually an exhaust pipe, it is meant to resemble a jet engine after burner. Tha t part on the 1966 Batmobile replica is functional and will shoot flames out the back. 16. The rear Bat-Fins on the 1966 Batmobile replica are functional in that they are an aerodynamic aspect of the vehicle. They are also not separable from the design of the car. 17. The "Batscope" on the 1966 Batmobile replica is functional. Drivers can use it to see out the back. 18.The radarlike screen on the 1966 Batmobile replica is functional. 19. The portable fire extinguisher on the 1966 Batmobile replica is functional. 20. The color of the 1966 Batmobile replica is not separable from the Page 6 Declaration of Mark Towle

automobile. 21. The batwing rear fenders on the 1966 Batmobile replica are functional in that they are an aerodynamic aspect of the vehicle. They are also not separable from the design of the car. 22.The double cockpit in the 1966 Batmobile replica is functional and not separable from the design of the car. 23.The cockpit arch on the 1966 Batmobile replica is functional and not separable from the design of the car. 24.The 1989 Batmobile replica that I make is based on Anton Furst s design patent which was registered in 1990 and expired in 2004. 25.I did not begin selling replicas of the 1989 Batmobile until 2004 so I would not infringe on the design patent. 26.The 1989 Batmobile replica that I make does not have the following features: a. self-diagnostics system; b. spherical bombs; c. chassis-mounted shinbreakers; d. side-mounted disc launchers; e. Central "foot" capable of lifting the car and rotating it 180 degrees; Page 7 Declaration of Mark Towle

f. armor-plated body; g. oil slick dispensers; h. smoke emitters; i. "Batmissile" mode that sheds all material outside central fuselage and reconfigures wheels and axles to fit through narrow openings; j. sidemounted grappling hook launchers; k. custom all-black color scheme with blue highlights; l. four sets of wheels; It has one set of wheels. m. yellow or gold hubcaps on second and fourth set of wheels (from front) on Batmissile version of Batmobile; n. telescopic poles which pop out from sides of vehicle; o. Batwing-like fan spreads which open from undrneath sides of vehicle; p. Flame shooting exhaust. 27.The 1989 Batmobile replica I sell does include a pair of fake Browning machine guns, however these guns are of my own design based on the design of an actual Browning machine guns. I do not believe that DC was the inventor of the Browning machine gun. 28. The jet turbine engine intake grill on the 1989 Batmobile replica is Page 8 Declaration of Mark Towle