Most germane to this overextended discussion that has ended up close to (but not exactly) where I expected it to when I started, by filing a declaratory judgment action under a contract theory Beatty doesn't have to choose which theory Dick Tracy should be protected under. The story in the Sun-Times sort of hints that only trademark will do:
Beatty gave the rights to the Walt Disney Co. and in 1990 starred in and produced ''Dick Tracy'' for Disney. The film — which featured Tracy's catchphrase "I'm on my way" — was received poorly by critics but made more than $100 million at the box office.
That certainly sounds more like a trademarkish theory than a copyrightish theory, doesn't it? "I'm on my way" is not a copyrightable expression. It merely states a fact, and there are few other ways to state it in the context of a police officer notifying someone of his impending arrival over the radio. A "catchphrase," too, is more valuable for its association and allusion than for its substance; it is used to help recognize the source.
The litigation strategy is also important for another reason: It's not in the Ninth Circuit. The Seventh Circuit—particularly when Judge Posner has been on the bench—has been much more open to nontraditional theories concerning fictional characters than has the Ninth Circuit.1 Careful litigation strategy can preserve jurisdiction in the Northern District of Illinois to keep things out of the LA courts. It's kind of ironic that going to the alleged owner's home court is to its detriment; but that's the way it appears.
- See, e.g., Gaiman v. McFarlane, No. 03–1331 (7th Cir. Feb. 24, 2004) (slip op.), discussing the "ownership" of characters from the Spawn comics with much more clarity and understanding of collective authorship than do the leading Ninth Circuit and Second Circuit cases. Judge Posner has also shown a great deal less patience with bullshit formalism at oral argument than one can expect in the Ninth, and certainly in the Second. For example, he granted the appellant an extra ten minutes of time at the oral argument in this matter, then proceeded to beat the appellant's lawyer about the head and shoulders with first-year civil procedure for that entire extension. (IMNSHO, the appellant's lawyer deserved it.) Sometimes it takes a sense of outrage to resolve disputes of this nature, and I haven't seen that sense of outrage in IP cases from the coasts in recent years.