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Flip Side, Inc. v. Chicago Tribune Company

October 31, 1990


The opinion of the court was delivered by: Justice Rizzi

Rehearing Denied Jan. 8, 1991

Plaintiffs Flip Side, Inc., Carl Rosenbaum and Lawrence Rosenbaum filed a three-count complaint against defendants Chicago Tribune Company, Tribune Media Services, Inc., Richard Locher and Max Collins.

Count 1 alleges an action entitled Libel, and according to plaintiffs it is sufficient to state an action for libel per se and per quod. Count 2 alleges an action entitled Invasion of Privacy. Count 3 alleges an action entitled Intentional Infliction of Severe Emotional Distress. Defendants filed a motion to dismiss the complaint on the basis that it fails to state a claim upon which relief can be granted. The complaint and the motion to dismiss are both supported by exhibits depicting the subject matter of the lawsuit. The motion to dismiss was granted. We affirm.

Plaintiff Flip Side, Inc. is an Illinois corporation with its principal place of business in Arlington Heights, Illinois.

It is engaged in the record business, and it has been engaged in the concert promotion business. Plaintiffs Carl and Lawrence Rosenbaum are brothers who are employed as representatives of Flip Side, Inc. The complaint does not allege any other descriptive facts about the plaintiffs or their operations.

The subject matter of the lawsuit is the Dick Tracy comic strip which appears daily in the Chicago Tribune. Defendant Chicago Tribune Company publishes the Chicago Tribune. Defendant Tribune Media Services, Inc. owns the copyright to Dick Tracy.

Defendant Richard Locher is the artist and defendant Max Collins is the writer for Dick Tracy. The plaintiffs contend "that the strips make false and defamatory statements about both the corporate and individual plaintiffs, that they wrongfully invaded individual plaintiffs' right to privacy, and that they subjected the individual plaintiffs to an intentional infliction of severe emotional distress."

Based upon the exhibits filed by the parties and upon facts which we take judicial notice, we recognize that Dick Tracy is a nationally known continuing episodic comic strip that has existed since 1931. Over the years, in addition to the square-jawed crime fighter, it has included such inherently fictional characters as Puttyface, a criminal scoundrel who can make his face change its shape; Pruneface, a villain with prune-like facial features; Moon Maiden, an iniquitous woman whose head sprouts antennae; Hammerhead, a terrorist whose head resembles that of his namesake the hammerhead shark; Sam Catchem, a detective; and B.O. Plenty and Gravel Gertie, whose first child, Sparkle Plenty, spawned the sale of popular Sparkle Plenty dolls. Some of the other inherently fictional characters that are readily recognizable include the Mole, 88 Keys, Mumbles, Itchy, Dr. Freezdrei, and Flattop. Most of these enchanting but plainly fictional characters are so recognizable that a collection of them surely would be classified as Americana at its lighthearted best.

On May 11, 1987, a new escapade, which we shall refer to as the Flip-side episode started in Dick Tracy. In the Flip-side episode Jake Staxx is the owner of a record company named Stax O Wax. He intends to testify against organized crime figures that are part of a special investigation centering on payola, i.e., drugs, cars and jewelry given to disc jockeys to play certain records. When detective Dick Tracy (Tracy) learns of the payola investigation, he tells his assistant, detective Sam Catchem, that gangsters have put a new spin on that particular golden oldie. On May 13, 1987, Tracy states: "Flip-side, Inc., a so-called independent promotion outfit, is using bribery to get radio air play for certain records.

But the special prosecutor has a key witness who can help us shut down this payola train."

Two of the other characters that are involved in the payola caper are A.M. and F.M. Stereo. They are identical twin brothers who maintain a sartorial uniqueness by always wearing the same collarless dark jackets and large bow ties. Also, the Stereo brothers always conclude each other's thoughts and sentences when they speak.

Jake Staxx is murdered by A.M. and F.M. Stereo shortly before he is scheduled to testify in the payola investigation. The killing is done with the use of an arcane black box about the size of a common book. The black box is plugged into an aux/video. *fn1 When A.M. and F.M. Stereo turn the black box on, it emits sound waves which have such a high frequency that they cannot be heard. The piercing sound waves, however, obliterate Jake Staxx's inner ear, causing him to have spasmodic convulsions which result in a heart attack and death. A.M. and F.M. Stereo are wearing earplugs and therefore not affected by the sound waves. A death that results from the sound waves appears to be caused by a heart attack rather than foul play.

When Tracy investigates the death of Jake Staxx, he suspects foul play when he notices that the aux/video in Jake Staxx's office is turned on even though there is no T.V. in the room, and there is no tape in the tape deck or record on the turntable. Tracy quizzically states: "Convenient for Jake Staxx to die suddenly, of 'natural causes'--when the city's most powerful organized crime figures want him dead." On May 25, 1987, however, the coroner's office officially declares that Jake Staxx died of a heart attack. When Tracy is asked, "What now?," he states: "We concentrate on Flip-side, Inc., the independent promotion outfit that benefitted the most from the murder." As Tracy continues his investigation, as usual, he utilizes his two-way wrist radio-TV computer.

A.M. and F.M. Stereo next attempt to bribe a top-rated radio disc jockey named Themesong. At one time, Themesong was a young female street singer fronting for her pickpocket pop until Tracy straightened her out, *fn2 and she went to college and majored in broadcast journalism. Later, Themesong became a radio disc jockey. On her top-rated radio show, she has an irreverent sidekick named Garry Doll. Themesong and Garry Doll work out of a private studio for a radio station called WHUB The Hub.

A.M. and F.M. Stereo tell Themesong and Garry Doll that they represent Flip-side, Inc., an independent record promotion outfit. A.M. and F.M. Stereo attempt to bribe Themesong and Garry Doll by offering them a new car, jewelry and drugs if they will play certain records on their show. Garry Doll calls A.M. and F.M. "garbage," and he and Themesong refuse the offer. After Themesong and Garry Doll refuse the offer, Themesong decides to meet with Tracy. Tracy tells Themesong that he is investigating Flip-side, Inc., and that the names turning up at Flip-side, Inc. are apparatus alumni. *fn3

Tracy also tells Themesong that he believes Flip-side, Inc. is an apparatus operation. Tracy then tells Themesong that the thrust of his investigation of Flip-side, Inc. is not payola. He says that he is exploring the sale of counterfeit records and cutouts.

Cutouts are records deleted from a label's catalogue and sold cheaply to chain outlets for their sale bins.

On June 10, 1987, Tracy tells Themesong that last month Flip-side, Inc. sold $250,000 in cutouts to Stax O Wax, but the president of the company, Jake Staxx, withheld payment. Tracy says that Jake Staxx claimed that the cutouts that were delivered were junk; not older records by major artists as promised, but unsuccessful records by unknowns. Tracy states that in his opinion, Jake Staxx was murdered. He then confirms Themesong's belief that she is up against mob guys, murderers.

Tracy then suggests to Themesong that if the Stereo brothers approach her again, she should pretend to accept their payola offer but she should be wearing one of his two-way wrist radio-TV computers, and he will be listening. Themesong refuses to wear a two-way wrist radio-TV computer, and states that she would prefer to keep her distance from the whole scene and not be involved.

At this point, on June 14, 1987, a character whose name is Flip-side is introduced. He is the eponym for Flip-side, Inc. Later, on July 27, 1987, we learn that his real name is Victor Promomo. According to him, the name Flip-side is a pseudonym and not an alias.

Flip-side is a rotund villain with a flat swirled curl of hair predominating the top of his head and forehead. He has a penchant for speaking in rhymes, for example: "Everybody wants money, honey; Just kill one, son; Split the scene, Gene; Lets give your tape a spin, Lynn; and I'll just flip the switch, Mitch." Also, he invariably is seen listening to a juke box playing '50s music such as "Turn Me Loose," and "I Found My Thrill;" he hates modern pop music.

Flip-side meets with A.M. and F.M. Stereo, and they tell him that Themesong and Garry Doll have refused payola. When A.M. and F.M. Stereo ask Flip-side what they should do, Flip-side states: "Just kill one, son." The Stereo brothers then go to the WHUB The Hub studio where Garry Doll is alone and working late. The Stereo brothers plug the black box into an aux/video and turn the black box on, while they are wearing earplugs. Garry Doll has convulsions and dies of a heart attack caused by the silent but piercing sound waves from the black box.

When Tracy investigates Garry Doll's death, he notices that the aux/video is turned on, and other similarities between Garry Doll's death and Jake Staxx's death. Tracy suspects that the aux/video had something to do with the deaths.

Tracy then meets with Dr. Polly Phonic who is in charge of the Acoustical Research and Development Laboratory. Dr. Polly Phonic explains to Tracy that scientists have been working on an aural laser. She tells Tracy that the aural laser has been used to perform incisionless and painless surgery. Dr. Polly Phonic, however, also tells Tracy that the aural laser can be used to kill.

She tells Tracy that the aural laser can produce a silent sound that is known as black sound, which can be fatal. Black sound is described as sound exceeding 175 dB's, *fn4 which will obliterate the inner ear, causing convulsions and death by heart attack.

Meanwhile, Themesong identifies the Stereo brothers from mug shots that she is shown by Sam Catchem. Sam Catchem then contacts Tracy on his two-way wrist radio-TV computer. Sam Catchem and Tracy then go to the Flip-side, Inc. office to bust the Stereo brothers. At the Flip-side, Inc. office, A.M. and F.M. Stereo put on their earplugs, plug the black box into an ...

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