Home News Legal Matters Ellison/Groth: The love is still strong

Ellison/Groth: The love is still strong

0


LIke a hand emerging from a freshly dug grave, enmity has arisen in the once thought settled Harlan Ellison/Fantagraphics lawsuit. The problem: the mediated settlement’s stricture that Ellison post a 500-word rebuttal by Groth on his (Ellison’s) website for 30 days. However, as Dirk pointed out yesterday, the statement has yet to be posted on Ellison’s site, although you can read it here under item 8. Or right here:

EXHIBIT C
to
SETTLEMENT AGREEMENT DEFENDANTS’REBUTTALSTATEMENT
By Gary Groth

Unlike those who threaten, intimidate, bully, extort by lawsuit, and carry out, physical assaults, I believe the corrective to forms of speech one doesn’t like is more speech – i.e., the truth. This is my attempt to put those principles into action.

Between the time Harlan Ellison launched his lawsuit against Fantagraphics, et aI., and now, he has made a number of false accusations and defamatory public statements about me, to wit:

BIG LIE #1: Ellison accused me of embezzling monies from our Legal Defense Fund during the ’80s and spending the embezzled funds on a tropical vacation in the Bahamas (on his weblog, February 17, and in his initial Complaint as well). This is untrue. I never took funds for my personal use from our Defense Fund. Every cent we raised from 1980 to 1987 went toward paying our legal bills. I defy Ellison to offer evidence to the contrary.

BIG LIE #2: Ellison accused me of defrauding the contributors to our current Defense Fund by misrepresenting how our attorneys were being paid. Ellison claimed that the costs of our lawsuit were borne by either an insurance company or a “guardian angel” (possibly both). He wrote: “I do not have an insurance company or a secret financial angel behind MEEEEE…as do you …” [emphasis mine] And: “You need no Defense Fund, Gary, so why not tell your folks the name of the entity(ies) paying the bills for a firm that must already have logged in tens of thousands of dollars of time, while BloatedLyinglronic Harlan seems to struggle along with only two blind, crippled, diabetic (also brilliant, masterful, rational) guys whose legal offices number their staffs in the total of ONE EACH?”

“BloatedLyingironic Harlan Ellison” is in fact lying. We had no insurance company or guardian angels to cover our legal bills. Our only “guardian angels” are those artists who thought our cause just enough to help us after we’d announced our Defense Fund – artists and friends such as Art Spiegelman, Robert Crumb, Ralph Steadman, Joe Sacco, Frank Thorne, Jeff Smith, Megan Kelso, Tony Millionaire, Gilbert & Jaime Hernandez, Bill Willingham, Daniel Clowes, Peter Bagge; Barry Windsor-Smith, and too many others to enumerate.

What’s interesting about Ellison’s assertion is that there is no way he could’ve known the truth or falsity of it, yet he made itanyway – and emphatically!

BIG LIE #3: “…Apart from much of the crap Groth publishes, they [sic] are like serial child molesters who publicly do Good Works, and privately indulge in heinous behavior.” This isn’t technically a lie, but an example of Ellisonian hypocrisy, of engaging in ad hominem rhetoric that he himself denounces. On the one hand, Ellison objects to being referred to as a “dilettante” and on the other likens me to a child molester. It is an example of someone being able to dish it out but unable to take it (without filing a lawsuit). It is an example of someone believing in free speech – for himself but not for his opponents.


Groth says this was written on August 20th, and by terms of the settlement, it must be posted within 30 days:

Plaintiff shall permit Defendants to post a statement not to exceed 500 words on Plaintiff’s web site www.harlanellison.com for a period of 30 days, commencing within 5 business days of the execution of this Agreement, for the purpose of rebutting statements made by Plaintiff that accused Mr. Groth of embezzling funds in the Fleisher litigation and soliciting contributions to the Fantagraphics Defense Fund under false pretenses, and that likened Mr. Groth to a child molester (the “Defendants’ Rebuttal Statement”). … Plaintiff shall ensure that the Defendants’ Rebuttal Statement is posted in its entirety on his web site, and shall not edit or otherwise alter the content of the Defendants’ Rebuttal Statement.


So why hasn’t it been posted? There is some speculation and scuffling over at an Ellison message board, and then this posted at Ellison’s website:

[Regarding Defendants’ publication of Gary Groth’s “rebuttal” statement on Fantagraphics’ website]

Dear All:

Gary Groth has published his “rebuttal” statement referred to in the recent settlement agreement between Harlan Ellison and the Fantagraphics Defendants in the above referenced case. The settlement agreement stated that Mr. Ellison would permit the Defendants to post on Mr. Ellison’s website a 500 word rebuttal to: “statements made by Plaintiff that accused Mr. Groth of embezzling funds in the Fleischer case … soliciting … funds under false pretenses …” and “statements which likened Mr. Groth to a child molester.” See Settlement Agreement. Page 4, Paragraph 6.

The grant of this short rebuttal was not an opportunity to grandstand on the First Amendment — Fantagraphics’ supposed knightly championing of it and Mr. Ellison’s alleged disregard of it — thereby perpetuating the one-upsmanship on the topic, as to who believes in the First Amendment more, etcetera. In our opinion, the Defendants overreached both the letter and the spirit of the settlement agreement. It was precisely this sort of sniping Mr. Ellison intended to quell as a by-product of the main thrust of this case, which was to correct the record.

The parties had not yet privately resolved their disagreement on whether Mr. Groth’s “rebuttal” was an overreaching First Amendment screed or within the limited scope of the settlement agreement. The Defendants published it anyway.

Regarding the substance of the rebuttal: It is important to point out that at the time Mr. Groth’s objections to the two statements were made known to Ellison, Ellison took steps to investigate, correct, retract and even apologize for any inaccuracy. We believe these are the appropriate steps to take, both legally and morally, when confronted with a legitimate concern about the veracity of a public statement. As to the prior hyperbole that both sides have engaged in, this settlement agreement was to put an end to it once and for all.

In the case of Ellison v. Fantagraphics et al., the settlement agreement speaks for itself on the subject and no further comment need be made.

Mr. Ellison considers the matter closed.

John H. Carmichael
counsel for Harlan Ellison


So there you have it. The moment the grown-ups leave the room, the kids start acting up again. Sigh. WILL THIS NEVER END??????? While hopefully no one will fan the embers of the lawsuit, the statements will live on on the internet for all times, although both parties are injuncted to refrain from speaking of one another publicly again. So is this REALLY the final word? Or will that hand keep bursting from the grave…again…and again….and again……and…….AIEEEEEEEEEEEEEE.

  1. Ellison comes off looking pretty sad and pathetic with this last vain action, and in the process makes Groth’s final line: “It is an example of someone believing in free speech – for himself but not for his opponents” prophetic.

  2. As I see it, Fantagraphics initiated this whole episode with the Comic Writers book and then the history book which has yet to make into the light.

    Comes across to me as just being more than willing to pick a fight.

    And Ellison blows up and as he is want to do says all sorts of stuff.

    So I’m glad that Ellison sued because the settlement if it will hold will put an end to it.

  3. For the sake of the argument, even if Fantagraphics were ‘more than willing to pick a fight’, they were willing to fight words with words (i.e. engaging in debate and argument in the public sphere). Ellison tried to stifle that debate, in my opinion. The fact that Ellison often ‘blows up’ is no reason to limit speech, as I’m sure he would have to agree. The lawsuit seemed to be an act of fiscal intimidation. Being glad he sued so because ‘it will put an end to it’ is both silly and condones the taking punitive fiscal actions to end speech one finds annoying and discomforting (to be clear, this point is in response to ‘matterconsumer”s point-of-view). That fact that Ellison would not publish Groth’s rebuttal after agreeing to do so because he did not like the content only serves to prove Groth’s point about Ellison’s commitment to free speech.

  4. Sounds like I should elaborate on what I meant by “Ellison blows up”. I meant that he has made remarks that I would not have made. I can’t go along with calling someone a child molester.

    I don’t know what Fantagraphics net worth is. The same for Ellison.

    I wouldn’t want to contribute money for a cause to find out that money was available.

    I believe that Ellison really thought he was being defamed. Really depends on where one falls on the issue. If it’s defamation it’s fair game. If it’s not then one can say speech was stifled.

    Putting Ellison on the cover was just low. Seems to me that Fantagraphics has more productive things to do than this. And that’s my gripe with Fantagraphics. They do some good stuff and then they do other things such as all this stuff with Ellison that counteracts the positive.

    If it were me I would have played harder ball (without the insults). Over in England it’s guilty until proven innocent. So if the Comic Writers book is sold in England, file the suit there and Fantagraphics has to prove their innocence.

  5. I don’t believe Harlan Ellison (a U.S. citizen and resident of California) can sue Fantagraphics (a U.S. company residing in the state of Washington) in the United Kingdom. But I’m no expert in international law. It would be a very American thing to do, though — “our legal system is choked up enough, let’s take it to another country!”

    Matter, I’d be curious to know what you mean when you say “Putting Ellison on the cover was just low.” Have you actually seen the book or cover? The book featured an interview by Ellison, which even Ellison concedes is owned by TCJ and as such TCJ had every legal right to re-publish it in book form. If you accept that, how does listing the contents of the book on the cover qualify as “low”? Isn’t that what book covers are for? To tell you what’s in the book?

    Here is the cover in question in case anyone wants to judge for themselves:

    I bring this up because sometimes I think folks form partisan opinions without even bothering to gather all the information at hand.

  6. It’s like a zombie hillbilly feud, except the zombies have shotguns.
    and for some reason, that poster reminds me of Fame… “I’m gonna live forever… people will see me and cry!”

  7. Yes, Eric I do have the book.

    I mentioned this on another post and most likely it was missed. I’ll reiterate it here.

    On the TCJ message board there’s been a thread discussing offering TCJ on DVD. Groth shoots the suggestion down by arguing that the contributors would not go along with it.

    And I’d raise the very same obvious point with the Ellison interview. Does anyone at Fantagraphics believe that Ellison would have agreed with having the interview run?

    Isn’t it fair to say that Ellison did not want the interview run and Fantagraphics ran it anyway? But not only did they run the interview additional comments were made which Ellison argues are defamatory.

    And there are the additional points such as not displaying the registration mark for his name, etc. One doesn’t have to agree with it to understand that he’s trademarked his name and if it’s going to be used in that manner it must be displayed properly.

    It would have been better to have had a neutral third party negotiate the inclusion of the interview, drop the comments Ellison considered defamatory, and display his trademark.

  8. It’s my undertsanding from what you’re saying about the impossibility of a Journal DVD is that it would be a nightmare to track down all the various permissions from copyright holders. In the case of the Ellison interview, the copyright is held by the interviewer, i.e. Gary Groth and/or Fantagraphics.

  9. Those on the side of Ellison want to make it look like Groth is some evil lying bully; a renegade publisher with a beef against people with “real talent”. But Groth had some huge names behind him. Spiegelman, Smith, Willingham!

    Who supported Ellison? That tired Star Trek/Hulk writer Peter David… and uh…. a bunch of sycophants.

  10. Didn’t Harlan Ellison also sue James Cameron over The Terminator?
    And as Groth points out, it is indeed hypocrisy to call him a child molester considering the merits of the lawsuit.
    Also, it’s silly!

  11. “Didn’t Harlan Ellison also sue James Cameron over The Terminator?”

    Yep. Here’s some info from his wiki entry:

    “The story for a rather famous and popular film can also be credited to Ellison, though he had to go to court to get the credit. Some aspects of the story for The Terminator were sufficiently similar to two episodes (“Soldier” and “Demon with a Glass Hand”) of the TV series The Outer Limits — both written by Ellison — that Ellison sued James Cameron. Ellison settled for several hundred thousand dollars, and the film’s end credits now include the simple statement: “Acknowledgment to the works of Harlan Ellison.”

  12. “But Groth had some huge names behind him. Spiegelman, Smith, Willingham!”

    Let’s keep in mind that there are relationships here. All those names have relationships with Fantagraphics.

    So yeah if it was a true assertion that Ellison’s lawsuit was going to shut down Fantagraphics then little wonder that those who either have, had, or were interested in doing business with Fantagraphics would have a very motivating interest to try and prevent Fantagraphics from sinking.

  13. “And I’d raise the very same obvious point with the Ellison interview. Does anyone at Fantagraphics believe that Ellison would have agreed with having the interview run?”

    Matter, with all due respect, I think you’re missing the point here (please bear with me, I’m not trying to be insulting). The fact of the matter is, Fantagraphics owns the *print* rights to the interviews TCJ publishes. This has always been the case and was not at all being challenged by Mr. Ellison’s suit. On the other hand, TCJ predates digital media and as such never held digital rights to its content, and therefore any DVD releases would likely require new contracts for each piece of content. So Mr. Ellison’s “wishes” in regard to the print version really aren’t relevant vis a vis the law, whereas they very much would be in regard to a DVD version.

    One more thing, regarding this comment:

    “One doesn’t have to agree with it to understand that he’s trademarked his name and if it’s going to be used in that manner it must be displayed properly.”

    Again, I really don’t think it’s as black-and-white as you make it sound. Ellison’s claim to trademark was at odds with Fantagraphics’ claim to Fair Use in advertising the contents of the book (which, it should again be pointed out, everyone agreed were the property of Fantagraphics). Fantagraphics presented Ellison’s name on the cover in exactly the same fashion it did every other name, there was no effort to unduly trade on the name (it’s printed in about 12 point type!) beyond advertising the book’s contents, falling well within the bounds of Fair Use. Just because Harlan Ellison files a trademark on his name does not by any stretch give him absolute control over how his name is used in the media any more than calling “shotgun” legally guarantees you a front passenger seat in whatever car you want to ride in.

  14. Eric, I should distinguish this point from the Ellison lawsuit. This would be my position.

    I would have contacted everyone that had an interview in the book and indicated what the “plan” was to be. If someone objected to having the interview being reprinted I would have dropped it. Additionally, I would have provided compensation.

  15. Figures. Ellsion agreed to:

    “ensure that the Defendants’ Rebuttal Statement is posted in its entirety on his web site, and shall not edit or otherwise alter the content of the Defendants’ Rebuttal Statement.”

    but then didn’t like the rebuttal, so simply opted not to post it despite the agreement.

    Some people just can’t live up to their word I guess.

  16. Ellison’s rebuttal, which was written by his attorney, claims that the lawsuit was supposed to stop the aggressive verbal attacks and harassment by Fantagraphics. (And resultant responses, I agree.) Groth’s 500 word statement is merely another attack, according to Ellison and his attorneys.

    Perhaps one of Groth’s writer friends could rewrite the statement for Groth, making it say what Groth wants it to say while leaving out the excessively snide verbiage.

  17. Honestly, it doesn’t matter what the point of the lawsuit is. If Ellison agreed to run his unedited rebuttal then he should have ran his unedited rebuttal.

    Otherwise he should have the agreement says “will run unedited rebuttal on the condition that Ellison approves of it” or something of that nature.

  18. “So yeah if it was a true assertion that Ellison’s lawsuit was going to shut down Fantagraphics then little wonder that those who either have, had, or were interested in doing business with Fantagraphics would have a very motivating interest to try and prevent Fantagraphics from sinking.”

    Ellison made it clear he was going after Groth and he had no ill will towards the totality of Fantagraphics, or even the nature of the book (just the interview regard Ellison). So nobody had to help Groth. Nobody else was a target. Anyone who participated to aid Groth did so out of their own wishes.

    The notion that the 500 page essay is a personal attack is bunk. Groth only uses terms Ellison used himself. “BloatedLyingironic Harlan Ellison” was a construction of Ellison’s; if he can use it jokingly so can Groth. As for therm “hypocrisy”, well it is a true statement as it is Ellison’s assurtion that he can call you anyone a molestor but one can’t call him a “dilettante” (which if you look it up isn’t really an isult, just means “dabbler”, and Ellison is a dabbler in comics not a major name in comics.)

  19. “For those who may not know, Eric Reynolds works for Fantagraphics. I argue not the facts he states.”

    Yes, Alan, I’ve been hiding that fact in pursuing my agenda. Good for you for identifying this smoking gun.

    And good for you for identifying Groth’s violation of the “excessively snide verbiage” terms of the rebuttal agreement. You are a regular Bob Woodward! I hadn’t even realized that such a thing existed when Mr. Ellison agreed to “ensure that the Defendants’ Rebuttal Statement is posted in its entirety on his web site, and shall not edit or otherwise alter the content of the Defendants’ Rebuttal Statement.” Hot damn!

  20. “Didn’t Harlan Ellison also sue James Cameron over The Terminator?”

    It’s funny how he sues Cameron, but didn’t think twice about lifting Robert Heinlein’s idea about solders working with super intelligent dogs (in Starship Troopers) and then just changing the dogs (in the Outer Limits) to cats. I’m not saying he didn’t do it well, but he didn’t do anything that James Cameron didn’t also do later, and maybe even a little bit better. But that’s just Ellison. It seems that whatever he was at one time, he is now neither funny or relevant. He should have had faith in posterity, and quietly rested on his laurels. Instead, he’s now known by many as a person who can’t feel big without cutting others down to his stature, rather then for his better works on paper. Maybe a hundred years from now, readers will be able to enjoy his works again in their full light. As for now, it is impossible for them not to be sullied under a shadow cast by an ego bloated by self importance. Let it be a lesson to us all. The artist is irrelevant. It is only the art that matters. All this suing only serves to smite what little time we have on this earth, to make it.

  21. “And good for you for identifying Groth’s violation of the “excessively snide verbiage” terms of the rebuttal agreement. ”

    Well, there IS a “no ad hominem attacks” provision in clause 4, you know.

  22. “It’s funny how he sues Cameron, but didn’t think twice about lifting Robert Heinlein’s idea about solders working with super intelligent dogs (in Starship Troopers) and then just changing the dogs (in the Outer Limits) to cats. I’m not saying he didn’t do it well, but he didn’t do anything that James Cameron didn’t also do later, and maybe even a little bit better. But that’s just Ellison.”

    Same with the Starlost. Ellison admitted it wasn’t at all an original idea.

    Simply put, there are no totally new stories. Everything builds or borrows on what came before.

  23. “What’s ad hominem in Groth’s rebuttal?”

    Arguably, the opening words and most of the last paragraph. They’re attacks on Ellison, not rebuttals of the three statements. And attacking the man rather than the argument is precisely what “ad hominem” means.

  24. Arguably, insofar as Ellison wasn’t named in the opening words, and the last paragraph was in response to the “child molestor” reference, which was fair game.

  25. To correct a side point, the thrust of the law right now says that TCJ has the right to re-publish the interviews if they do an archival reprinting of the magazine, as in page by page views. This would eliminate the hassle of checking with every contributor.

    The thing that was stated in the TCJ thread as keeping them from doing such a DVD is the time demand.

  26. Are you seriously saying the opening words AREN’T referring to Ellison, Eric? I mean, if you want to argue that the statement as a whole doesn’t cross the line into ad hominem attack, then fair enough – I think a case can be made that it’s merely colourful. And I have some sympathy for the view that statement 3 can’t really BE “rebutted” in a strict sense.

    But surely you don’t seriously expect anyone to believe that the opening sentence is a reference to anyone other than Harlan Ellison? That’s just silly.

  27. One could easily argue that Groth threw a few little shots in what is supposed to be “the last word” on the subject, thus giving him the last volley in the fight, a position that few would want to be on the receiving end of.

    “This claim is not true” is a fair response to a false statement. “This claim is not true, and here is evidence to back that up” is a better one. “This claim is not true, and he’s a jerk for saying it” is a poorer one, and far more likely to engender a response.

    Of course, one could also imagine Harlan refusing to publish any response, claiming that any small part of the rebuttal was too confrontational and fell under the Ad Hominem clause of the agreement.

    Seems to me that the more confrontational the rebuttal was, the more likely that Harlan would/could have refused to publish it. But this scenario serves only to give both sides the chance to point at the other and say “He won’t stop!”

    I have this image of two egos locked in eternal struggle, like the positive and anti-matter versions of Lazarus from Star Trek. Battling on into infinity, long after they (or anyone) can remember why they do so.

  28. “Are you seriously saying the opening words AREN’T referring to Ellison, Eric?”

    No, just making a point that when it comes to the law rarely is anything as black-and-white as most message board posters would have you believe. Although I don’t believe there’s anything inherently ad hominem in Gary’s remarks (I tend to take the “merely colorful” position you stated).

Exit mobile version