Oh, and PS: Anonymous, I think you had the best post of all.

“So, seriously, what is the point of this case? It’s only going to make things worse for Ellison.”

Harlan Ellison isn’t going to be taking advice from me but if he were I’d suggest he try to offer up some reasonable compromise to settle this case. If he came up with something both parties could live with, this case would go away, people like me would stop complaining about him, and he could get back to his happy life with his wife, friends and fans.

It is also surprising indeed that Mr. Ellison is apparently so unfamiliar with the contents of the lawsuit that he doesn’t even realize what he’s suing for. Whether or not someone is a dilettante is, of course, subjective; in other words, there is no objective standard by which everyone can agree whether or not a particular person is a dilettante. Reasonable people could disagree. Therefore, whether or not a person is a dilettante is an opinion and the expression of that opinion is non actionable under the first amendment.

If Mr. Ellison will read- perhaps for the first time?- the documents his lawyers have filed in this case he will learn- perhaps for the first time?- that he is suing because he believes that by using his name on the cover of a book Fantagraphics misappropriated the trademark that is his name which he feels is wrong because he believes he has the the substantive right to exclusively profit from the use of his name and likeness for use on or in products.

That is what you are suing over, sir.

And let’s not forget that the alleged defamatory comments that have bothered you so much are virtually identical to comments which appear in an article that you have allowed to be republished on harlanellison.com If those comments are so harmful to you, why on earth did you put them on your own website? That makes no sense to me.

I don’t know why you want me to discuss with you the editorial policy of the Comics Journal- which is something I have never had anything to do with. I will, however, point out that when you say “NOT ONCE–NOT ONE SINGLE TIME–in almost 25 YEARS has Groth reviewed even one book or story or comic or essay or column or blurb or movie or tv show written by me” you are telling a demonstrable untruth (which, in the interests of accuracy, I am sure you will apologize). Just off the top of my head I can recall that Gary Groth wrote a very memorable review on an essay about comics which you wrote for Playboy. There may have been other reviews in the Journal of your work as well but this example is obviously enough to prove the falsity of your “NOT ONCE- NOT ONE SINGLE TIME” claim.

I actually have no problem with you calling me names. My complaint was that what seemed to me to be Heidi’s selective enforcement of that policy created an uneven playing field in which people who said things about you had to observe Marquis of Queensbury rules while you were permitted to do and say whatever you wanted. If you want to level the playing field so that we each may have the right to say exactly what we think in whatever language we felt was most appropriate, i would be glad to do it- if you thought you could take it.

Basically, my question for those with a legal background: how typical is Ellison’s initial filing? Is this what statements of suit look like, with argument later put forth in subsequent documents and in court? Is my impression of its juvenile and strange tone correct?

Disclosure: on this matter, I agree with the Fantagraphics POV, which may be influencing my reading of the documents. That said, it is increasingly pathetic to see a 40(50?)-something year old man baiting a 70-something and that 70-something year old man rising to the bait. I know that the industry line on both Groth and Ellison is that they’re incorrigible infant terribles, and gosh isn’t that just great when they’re funny and awful when they’re irritating, but as I get older I only find this stuff more boring, and even a little sad, especially as one reflects that the actions and statements leading up to this case inadvertently demonstrate the weaknesses not only of both men’s characters, but also their bodies of work.

I must say that I find it mystifying why this, of all possible fights, is the one Ellison would pick. One of the stranger turns in this matter is the almost complete reversal of influence since the initial interview in 80, with Ellison’s having waned significantly, and Groth’s at a highpoint.

This is *not* a judgment on Ellison’s work. The fact of the matter is that of his much vaunted 60(?)+ books, only about 5 are in print. Nor is this a judgment about Groth’s written work. As a writer, Groth is nearly a non-entity. Considered as a publisher, it’s undeniable that right now Fantagraphics is at an all time high of prestige and success. In part this is due to some smart moves by Fantagraphics, but it’s also related to the changing market. So even here, it’s as much luck as anything else. Whatever. None of the reasons really matter.

The situation, as I see it, is that a writer of fading renown has opted to sue the foremost publisher of comics. It’s just a total PR disaster and literally for nothing. What’s the best case scenario if Ellison wins his suit? Groth pays out the nose and the books are pulped? Fantagraphics goes under? Maybe in another era that would have been a “good” outcome, but I assure every one of you that the reaction to this case thus far will be nothing compared to the response if said scenario occurs.

For better or worse, we live in the age of the Internet, and if there is one thing the Internet abhors, it is actions leading to what its users perceive as censorship. While it’s totally debatable whether or not an Ellison victory in this case represents censorship (for the record: I don’t think it would), one can be almost certain that this is how such a scenario will be perceived by the general internet community.

So, seriously, what is the point of this case? It’s only going to make things worse for Ellison. In fact, it demonstrably has: I never would have read a goofy Fantagraphics history of itself, if for no other reason than to avoid Groth’s smarm, and thus would not have read or heard about his digs at Ellison. My life would have been better for it. But now I know exactly the statements Ellison found objectionable, and I know them because Ellison publicized them to a degree previously impossible. Seriously, man, who wants to hear Fantagraphics talk about itself?

I suspect that I am in the same boat as many, many, many others.

The morally-necrotic flip calling itself “Golden Apple Hater” is a bit of human flotsam who got his ass thrown OUT of Golden Apple, the excellent comics bookstore in Los Angeles.

In the Ackerman case, “my” side neither won nor lost …

Onaccounta …

I HAD NO SIDE, you deciduous mountebank. I was neither Plaintiff nor Defendant. I was SUBPOENA’d to come in and give character testimony and, as I openly despise the Defendant of whom you speak, I said just what I say to his face, and what I would say at the feet of Buddha.

Clearly, truth proffered as human speech is not your natural tongue.

Oh, and PPS: to the dude who finds my perorations here not up to his dreams of glorious wordsmithing, well, toots, pay me what I get for glorious wordsmithing, instead of your mooching it here for free–you can’t really getcher money back on the price of admission, you freeloading internet rambler–cause you dint pay nothin ta GET IN!

Charmingly, and still capable of pulling the auctorial plow,

I remain, Yr. Pal, Harlan

That would include myself, as well.

What have you misrepresented? you ask?

This:

I am not suing Groth because he put my name on a book.

I am suing Groth because:

1) He ridiculed me with a pointless and meanspirited and ACTIONABLE description of me–on the cover of his fucking book–as a “comics dilettante” precisely and intentionally to poke me with a stick.

2) He wrote libelous comments about me in said book, which are not Free Speech or Protectable Criticism or anything other than the crap he’s been pulling on me for 28 fucking years, you dimwit.

Here’s a question for YOU, Greenlee:

Groth continues to assert I’m trying to muzzle his grand and oft-claimed “right to Free Speech.” You keep barking his backup on this bogus assertion. But since NOT ONCE–NOT ONE SINGLE TIME–in almost 25 YEARS has Groth reviewed even one book or story or comic or essay or column or blurb or movie or tv show written by me, during the single most fecund period of my career–NOT ONE–not a single issue of “Harlan Ellison’s DREAM CORRIDOR” that has even been reviewed (glowingly) by Publishers Weekly–or any other damned piece of work by me…

Just WHAT burning comments from Groth is he protecting in re … well, me?

Are we talking Free Speech and First Amendment, you silly running-dog, or are we saying SAY WHATEVER YOU WANT TO SAY ABOUT MY TALENT OR LACK OF SUCH, BUT NO MORE IDLE SLANDER, LIBEL, BULLSHIT THAT IS INTENDED TO PISS ME OFF AND MAKE ME LOOK LIKE A BAD GUY TO AMBULATORY SACKS OF PUS-FILLED RUNNY MONKEYNUTS…i name no names.

Now go back to your mantra: “HeidiHeidiHeidi mommyMommmmeeee…I thought name-calling wasn’t allowed…boo-hoo…I dragged Ellison back in here after he swore he was gone, and now he done insulted me widdle delicate self…”

Shit! Did I say all of that aloud?

NEVerrrrr mind.

“But there is no case here. Even a BAD lawyer would have to ethically advise him that the case is impossible to win. Ridiculous? Blow me.”

Let’s recap. On the one side, we have a man who clearly has good legal advisors and a long history of winning in the courtroom. On the other, we have a person about whom we know two things: He don’t like Harlan Ellison, and he calls himself “Golden Apple Hater.” Only on the internets would anyone argue with a straight face that the opinions of both parties on the subject of the law carry equal weight.

I’d rather not blow you, although I DO find ridiculous people oddly compelling…

Because (you say) Ellison has won every time means he is going to win now? This is absurd. Laughable. Worthy of derision.

More importantly, Ellison took the stand in the Forrest Ackerman case based on personal animus and testified irrelevant bull shait and golly gee whiz, his side still lost. Weird huh?

Ummm- the law. He hasn’t got a case. Maybe he found a low life ready to take his case. I don’t know. You can always sue somebody. But there is no case here. Even a BAD lawyer would have to ethically advise him that the case is impossible to win. Ridiculous? Blow me.

The proof is in this sentence, which I copy from your posting of a quote by Dirk at Journalista:

“Would those premiums be worth the money to you if you didn’t believe the insurance would even provide you with the funds necessary for the legal representation you needed during such suits?”

Emphasis—…IF YOU DIDN’T BELIEVE…

As Dirk has said many times at Journalista, Groth pays him. Thus, the statement attributed to Dirk could be represented by some as words directly from the mouth of Groth.

There are two high points to this whole discussion: Shannon’s mixture of pride and embarrassment at his own behavior, and Harlan’s offer to have Shannon’s baby. Just about everything else is one-sided, poorly written, self-serving trash.

When I heard about this thread, I thought I would read through it with the awe of one watching gods at work; wordsmythery is, after all, the bread and butter of Messrs. Ellison and Groth, correct? One would think that the prose and the polemic both would be of the highest caliber. Unfortunately, I have to slog through, thinking only that my elementary school chums 30 years ago were more skilled at throwing barbs than these two.

It is my hope of hopes that at least some of these posts are forged; if that is not the case, I would strongly recommend that Mr. Ellison and Mr. Groth retain the time of their usual editors to assist in making these casual posts approach the quality of the work they sell, lest we all begin to believe that the sold works originate elsewhere.

Says you. Many others - including at least one vigorous and unimpeachable defender of free speech, a man whose credentials dwarf your own - say otherwise. You seem as obsessed with all this as Groth is with Ellison.

Keep on screaming in the wind. It’s fine. As Scott points out, it has no effect on the actual case. What it DOES do is make the case that Ellison’s characterization of you was dead-on accurate.

Anyone, at THIS late date, who finds Harlan Ellison’s turn of phrase, angle of approach or method of engagement to be surprising, outrageous, shocking, hurtful, uncalled-for or otherwise unbefitting the members of a civilized society is comin’ to the party a lil’ late. The man is what he is. Applaud him or toss cabbages, but don’t waste any more of anyone’s time chiding him. Never works, never has, never will — and probably never should.

Point the second:

Anyone who weighs in with an opinion, pro, con or pinstriped, about The Deadly Groth-Ellison Smackdown is similarly spending breath that might be put to fruitful use elsewhere. Don’t matter a fart in a windstorm, friends n’ neighbors, what you think, I think, or the Magic 8-Ball on the corner thinks. The sandbox belongs to Messrs G. and E, and all we are is kibitzers — and singularly useless ones at that.

high five for you, grumpy old man.

So when an individual files suit against an individual, it’s a first amendment issue. When the courts decide against an individual’s right to privacy, it’s fine by you.

Or, perhaps we can read this another way - when you’re in tight with one opposing party, they walk on water; when you have no skin in the game, who gives a crap about our rights?

Because calling a 1-900 poll a “public affair” is an outrage. But to you, it’s just precedent that you think strengthens your position. So when Ellison wins this case, THAT will become precedent, and I assume you’ll abrogate all moral judgement there, too.

Harlan–keep your pecker up! Those idle threats to middle-aged weirdos might get Papa Hemingway to let you into his tough-guy clubhouse in the sky.

Gary–I’m wondering what is less–the damages that your obscure vanity mag could possibly have inflicted on Harlan or the liquidation value of “The Comics Journal.”

Shannon–congratulations on the record weekend for Too Much Coffee Man 3!

“1) One of the things you are suing over is Mr. Groth’s use of your name on a book which reprinted an interview of you which even you have conceded they own. ”

you alter fundamentally, by omission, what the complaint actually says. When I quote the complaint, it’s to indicate what the complaint actually says, versus what you assert it says in seeking your answer. When I quote from the civil code, it’s to establish context for my quoting of the complaint - no more, no less.

Your desire, it seems, is to turn a discussion about your repeated misrepresntation to the general public about the nature of this point of the complaint into an unrelated discussion of the merits of the suit.

I merely wanted to indicate that I believe you, as an attorney, fully comprehend what the complaint says; further, you know what the omission of the context of acquiring permission does to alter the perception of the complaint as you frame it.

I am sure people understand that when you evaluate the merit of a suit filed under a particular statute that you do not merely look at whatever portion of the statute the suit actually quotes. No- you go back and you read the ENTIRE statute. You also do a bit of research and learn how various courts have interpreted it. This is what I have done.

CJ wrote: “Calling an interview in an entertainment magazine public affairs is a fairly big stretch.”

What about a 1-900 phone poll to see which member of the New Kids on the Block is sexiest? Would it be a “stretch” to call that “public affairs”? Because the Ninth Circuit held that it was indeed public affairs. And- as I mentioned before- it was also held that a documentary about surfing also fell under the category of “public affairs.” The courts, you see, have a very broad definition of public affairs.
If surfing documentaries and 1-900 phone calls about the New Kids on the Block are “public affairs” then wouldn’t it be a “stretch” to say an interview in which a writer as well regarded as Harlan Ellison discusses the popular art form of comics was NOT public affairs?

But, oh well! See you next thread, Heidi.

“PS: Calling an interview in an entertainment magazine public affairs is a fairly big stretch.”

Not really. Interviews are classified as public affairs, and published as such, all the time. (Flip through almost any news magazine if you don’t believe me.)

“Oh my God, shut up, shut up, SHUT UP!”

Help! Help! He’s trampling my First Amendment rights! If you love freedom, you’ll send me money to stop Plok from stifling my speech. And if I win, I get to keep the money!

PS: Calling an interview in an entertainment magazine public affairs is a fairly big stretch.

Mr. Greenlee - Please cite my accusation that you misunderstood California Civil Code 3344, or amend your words. I referred, quite clearly, to the lack of correlation between what the complaint says and what you repeatedly claim it says.

Subpara (d) wasn’t germane to the point that I was making: that you omit a critical element in your line of questioning / reasoning that intentionally skews your public presentation of the facts in order to paint the complaint differently than it actually is, so that it better serves the motives of a First Amendment argument that does not, in reality, exist.

“But the fact that Mr. Coil couldn’t support his statement regarding Mr. Groth’s personal beliefs about insurance shouldn’t come as a surprise.”

Actually, while Mr. Coil either chose not to search for the specific statements, or didn’t remember where they were printed, that doesn’t make his beliefs wrong.

In a comment here: http://pwbeat.publishersweekly.com/blog/2007/03/02/lee%e2%80%99s-comics-announces-fund-raiser-for-fantagraphics-at-wonder-con/ time stamped : 03/6/07 at 1:11 pm, Mr. Thompson says: “As for the whole issue of why we don’t have libel insurance: It’s very expensive — it is, in fact, particularly expensive when the company has a history of being sued for libel (which we have, three times — all silly lawsuits, all eventual defeats for the plaintiffs), for the same reason that hurricane insurance is a lot more expensive when your house has been knocked down three times by hurricanes in the past. Moreover, if you’ve relying on your libel insurance, you have to then accept the insurance-company laywers, who are not necessarily the best and whose prime loyalty is to avoid costing the insurance company money, not helping you defend the case — OR you can, as we did with the original Ellison/Fleisher case, insist on hiring your own counsel and paying for that.”

This is a useful insight into the mind of Mr. Groth’s partner, and while one could then assume it is an opinion shared by Mr. Groth, that assumption is not necessary, since Mr. Groth is quoted stating his personal disdain for such insurance here, under the heading of “Comics Industry”: http://tcj.com/journalista/?p=304 He is quoted as saying: “We published a six-issue benefit book called Anything Goes that raised money. We sold t-shirts and generally beat the drum. About two years into the lawsuit, we discovered that this chintzy business insurance policy we had covered the lawsuit. But, because we had our own attorney and not an insurance company attorney, it only covered two-thirds of the attorney’s fees — the difference between what an insurance company lawyer gets paid and what a real lawyer gets paid — so we were still paying immense legal bills over the course of seven years.”

Their separate and combined disdain for insurance and insurance lawyers is clear from these statements. This disdain has obviously led them to choose to _not_ carry libel insurance. That is a business decision. And, if I may be so bold, a startlingly _bad_ business decision. It is clear to me that it is this decision, not the lawsuit itself that endangers Fantagraphics.

I hope that Fantagraphics survives this, no matter the outcome. But to suggest that this danger is somehow Harlan Ellison’s fault is disingenuous at best and an outright lie at worst.

Now, on to Sunny Jim, and both Scott D and Mr. Greenlee’s reply to him. Sunny Jim is exactly correct quoting specific CA law, as opposed to the more general article Mr. Greenlee cited earlier. And both Mr Greenlee and Scott D are correct in suggesting the whole of the law is to be considered. BUT — that is the point of lawsuits in general and this lawsuit in particular. Mr. Ellison is alleging that Fantagraphics’ use of his name _is_ in violation of that law. Mssrs. Groth and Thompson disagree. Until the courts actually decide on the merits of this specific case, everything Mr. Greenlee is asserting about CA precedent is, to a great degree, PR spin.

But I must say, Sunny Jim has made a very interesting point about Mr Groth’s motives for including both the interview inside and Mr. Ellison’s name on the cover of the book, especially since he expresses so much disdain for the man and his contributions to the field of comic books at every opportunity, including what most people would consider a direct swipe at the man on the cover. If Mr. Groth doesn’t like Mr Ellison, why would he provide even the meager promotion of the man on his cover? I can only speculate, but for me, that speculation suggests that Groth and Co. felt using Mr. Ellison’s name would generate greater interest in their product, and thus, lead to greater sales. This implies a commercial motive, and thus, seems to remove it from the category of “public affairs”. But hell, we’re all just spitballing suppositions here, aren’t we?

I don’t choose to post at the TCJ messboard, so I’m not likely to ask anyone anything there. If no one here happens to be able to provide me with a precise statement as to why FBI doesn’t currently have libel insurance, then I’ll just go my merry way.

I will note that while in his 3/5/07 Journalista blog, Dirk Deppey refuted the idea that libel insurance pays all the bills, but since it is still seems to me desireable to have it rather than not have it, Deppey’s following statement:

“(While we’re on the subject, what do you suppose the premiums would be to insure a publisher who fought and prevailed in three costly legal battles, one right after the other, rather than settled out-of-court for more modest amounts? And: Would those premiums be worth the money to you if you didn’t believe the insurance would even provide you with the funds necessary for the legal representation you needed during such suits?)”

…is merely speculative, not an actual statement as to why FBI currently has no libel insurance (which seems to be what most people are saying now).

I don’t put any particular fiendish characterization on FBI for not having had it (re: Meth’s “scam”), but if FBI reps are stating publicly for the record that they don’t have it, I’d be mildly curious to know why not. Again, if no one’s seen anything– “merry way” and all that.

- Barney Dannelke

I may close this down after today…seems to be winding down anyway but it’s also scraping the bottom of the barrel.

I’ll just quickly note that the California courts have a VERY broad definition of what constitutes public affairs. They have, for instance, found that a documentary on surfing fell into the category of “public affairs.” Certainly, then, an interview in which a writer as well known and as highly regarded as Harlan Ellison discusses the popular art form of comics would also be considered “public affairs.”