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November 17, 2006

Fantagraphics Files Motion To Strike Harlan Ellison Suit On Multiple Grounds

By David Welsh for The Comics Reporter

At Journalista, Dirk Deppey has announced that the legal representatives for Fantagraphics Books, Inc., Gary Groth and Kim Thompson, filed a motion November 14 to strike the lawsuit filed September 7 by Harlan Ellison. The motion, copiously documented with supporting exhibits, addresses the individual components of Ellison's complaint. (The defense team had previously successfully sought a change of jurisdiction from the Superior Court of California to the United States District Court -- Central District of California.)

(Standard disclaimer: I'm not an attorney.)

The defense asserts that the remarks triggering Ellison's complaints of defamation don't meet the legal standard for that term and are in fact protected under First Amendment and California law because they are:
a. "subjective expressions of opinion or rhetorical hyperbole"
b. "substantially true"
c. "related to, and fairly report the contents of, an official government proceeding."

As for the claim based on Ellison's right of publicity, the defendants claim that "the use of plaintiff's name was not a commercial use as required to create liability for misappropriation."

The Summary of Argument section of the motion makes for interesting reading. The defense asserts that use of Ellison's name on the cover of The Writers does not meet the Right of Publicity standard as that use was intended to "accurately describe the contents of the interview anthology," and that the piece is of public interest, documenting as it does "a discussion between two luminaries of the comics world." Additionally, the defense asserts that use of the interview in The Writers constitutes fair use of the material as a matter of public interest, negating the Right of Publicity claim at California civil and constitutional levels.

The motion also posits that challenged characterizations of Ellison's actions with regards to a previous lawsuit filed by Michael Fleisher against Ellison, Groth and Fantagraphics, triggered by the interview reprinted in The Writers, are substantiated by public record of that suit.

The suit is covered in the upcoming Comics as Art: We Told You So, a history of Fantagraphics compiled by Tom Spurgeon and Fantagraphics Art Director Jacob Covey. The defense asserts that the characterizations of Ellison's behavior during the Fleisher lawsuit "accurately capture the 'gist' or 'sting' of the actual facts surrounding Mr. Ellison's conduct." Hence, they're heavily tinged with opinion but not actionably defamatory.

Supporting exhibits filed with the motion include court documents and communication related to the Fleisher lawsuit, relevant excerpts from The Writers and Comics as Art, and an entry at Heidi MacDonald's The Beat blog with subsequent comments from Ellison where he seems to acknowledge a desire to "whomp Groth upside the head." Perhaps providing fodder for a future exhibit motion, Kim Thompson has started a discussion thread on the defense's latest move at The Comics Journal's message board.

It's kind of startling to me that the apparently casual (if sometimes heated) conversation of blog comments can be brought into a legal action. But if a message board thread can result in a novel, a film, a television series, and four manga adaptations, I suppose anything is possible.

A hearing on the motion to strike is tentatively scheduled for 10 a.m. Dec. 11 in the Courtroom of the Honorable Audrey B. Collins in Los Angeles.

This entry was written and placed by David P. Welsh as a favor to this site, without editorial intrusion
posted 3:06 am PST | Permalink

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