JOHN H

Harlan Ellison alleges as follows against defendants Fantagraphics, Inc. (“Fantagraphics”), Gary Groth (“Groth”), Kim Thompson (“Thompson”) and DOES 1 through 20:HHadf

General Allegations

1. Harlan Ellison, a Los Angeles resident, is a famous author, screenwriter, commentator and public speaker. He is the winner of countless literary awards and known publicly as the writer of some of the best loved original Star Trek and Outer Limits episodes. In addition to his lifelong devotion to literary craft, Ellison is a well-known fearless champion of artist’s rights who, at great cost to himself, has pursued several intellectual

property and related matters through the Courts in an effort to elevate his profession and safeguard other artists. Ellison has also mentored and discovered many young writers that have gone on to acclaim and successful careers in their own right. This action arises from a well-intentioned attempt on Ellison’s part, over twenty five years ago, to magnamously assist a then-struggling writer with his own career, defendant Gary Groth. Unfortunately, Groth revealed himself to be a scheming pathological liar and little more than an obsessively vindictive and petty man trying to be a mover and shaker. The phrase “no deed goes unpunished” speaks volumes in this instance.

2. Defendants Groth and Kim Thompson are Washington residents and principals of the corporate defendant Fantagraphics, Inc., a Washington corporation which does business in Los Angeles County, California. Fantagraphics is a tiny but hostile publishing outfit which both men, Groth and Thompson, run out of their shared home in Seattle. The primary focus of Fantagraphics is the publication of magazines, books and other materials related to the comic book industry, referred to simply as “comics” in the field.

3. Ellison alleges that Groth, Thompson and Fantagraphics defamed him in a book entitled Comics As Art (We Told You So) which they have not yet officially “released” but which they have posted on their website and distributed at various public venues. Groth and Thompson are co-authors. The defendants promote the release of Comics As Art on their website and announce a “December 2006” date for the formal release of the book. Ellison further alleges that the defendants have violated California’s “right of publicity” statute, Civil Code section 3344, by wrongfully using Ellison’s name in connection with another Fantagraphics publication entitled The Comics Journal Library 6: The Writers. As part of their effort to sell Comics Journal 6, defendants wantonly trade on Ellison’s name on

the book’s cover (along with an included insult to Ellison) without Ellison’s permission.

Defendants’ tortious conduct is motivated by clear and indisputable malice toward Ellison, as explained by the following context:

4. In 1980, Groth, an admirer of Ellison, asked him if he would sit for an interview on the state of the art of comics. Ellison, by then an established author and screenwriter, was very public about his lifelong interest in comics and wanted to help the young Groth with his nascent effort to publish material in the field. Thus, Ellison accepted Groth’s invitation and the interview appeared in the 1980 Winter edition of a Fantagraphics magazine known as “The Comics Journal.” This lengthy interview contained a free ranging discussion of various comic artists, writers, publishers, and general cultural, political and artistic commentary. The interview was characteristically candid, and Ellison provided Groth with a long, controversial and gripping piece.

5. Unfortunately for all concerned one of the subjects of Ellison’s critique, a writer and comics contributor named Mike Fleisher, was offended by Ellison’s colorful analysis of the origins of his art. Even though Ellison’s comments were fundamentally positive regarding Fleisher’s work, Fleisher objected to Ellison’s opinion that his work had to be the product of a twisted mind. Specifically, for example, Ellison suggested one would have to be “derange-o” and/or “bugfuck” to write like Fleisher.

6. These offhanded if provocative remarks were quite clearly non-actionable “opinions” about Fleisher’s writing and its laudable literary origins, and not slanderous statements suggesting the speaker’s actual knowledge of Fleisher’s mental state. But there was no reasoning with or apologizing to the temperamental Fleisher; he was determined to sue and in fact he did. He named Ellison, Fantagraphics and Groth. The lawsuit proved to be long and tortuous, and generated significant legal fees and costs. The case ultimately

concluded in a jury trial in New York and the defense won.

7. Immediately after the jury exited the courtroom, a giddy young Groth went up to an older, tough looking male juror and, in sycophantic fashion, thanked him. The juror looked at Groth and said words to the effect that, “If it wasn’t for Mr. Ellison, we would have found against you.” Groth’s fragile ego could not take that public rebuke, made in front of others including Ellison. Groth had already lied to and stolen from Ellison during the litigation, as explained below in paragraph 10, and to have it made plain in the courtroom hallway that it was Ellison’s contribution that had saved Groth from a large damage award proved too much for the immature and now furious Groth to bear.

8. Since that time, for approximately the past 20 years, Groth has taken every opportunity to take shots at Ellison, even co-founding the puerile but nonetheless aggressive organization called “The Enemies of Ellison,” a hate group whose activities are for the most part published record. This group operated primarily to vex and harass Harlan Ellison, and to cause him extreme financial and reputational damage. In most regards Groth has been cowardly about his “hell hath no fury like a woman scorned” routine with Ellison, and Ellison has tried simply to avoid the distaste of Groth’s infantile vendetta. Recently, however, Groth has gone too far in his obsession and, even though Ellison has better things to do, he elects by this action finally to prosecute Groth’s defamation, a feature of Groth’s ongoing harassment, as well as other violations of law. The defamatory statements at issue, which are contained in the incomplete promotional release of the Comics As Art publication, concern Ellison’s conduct in his co-defense of the Fleisher lawsuit with Groth and Fantagraphics.

The Defamatory Statements

9. Groth’s First Big Lie: “Being a co-defendant with Ellison made me feel like I was in the Alamo: surrounded on all sides. It is little known that our relationship began to fray very early on. He was always coming up with schemes to wheedle out of paying his

bills. One was so brilliantly Machievelian [sic] that it included both stiffing his lawyers and screwing me — at the same time! You just never knew what he was going to come up with next, which meant we had to watch our co-defendant as closely as we watched Fleisher.”

10. The true facts are that Ellison was scrupulous in his payment of attorneys fees and other costs, covering more than his fair share of the litigation expenses. At some point in the case, Groth invoked the “duty to defend” clause in an insurance policy and the insurance company began to pay, at least in part, for the defense. However, Groth did not reveal this fact to Ellison and Groth continued to receive and happily spend checks from Ellison for his own selfish purposes. Groth even used money Ellison paid for legal services to fund a secret tropical vacation for himself and his partner Thompson. Given Groth’s outright thievery and dishonesty, his claims that Ellison “stiffed” his lawyers, “screwed” his co-defendant, or “wheedled” out of any responsibility in connection with the case is preposterous, reprehensible and defamatory.

11. Because of Ellison’s proud record of vindicating artist’s rights, it is important to his reputation that he not be seen as a “wheedler” out of the fees and costs that were necessary to fund such efforts. Groth’s false statements in this regard go right to the heart of Ellison’s professional reputation with a demonstrated intent to “hit him where he lives.”

12. Groth’s Second Big Lie: “One of my favorite stories involves Ellison cutting a deal that required him to reimburse Fleisher if he lost a particular motion. The judge approved the arrangement and Ellison lost the motion but refused to reimburse Fleisher’s out of pocket expenses, as agreed. Our lawyer started to realize what a loose canon he

was when we learned that the judge was about to order U.S. Marshals to arrest Ellison for

failing to obey a court order. Naturally, Ellison coughed it up but only days before he was

about to be arrested.”

13. This is a grotesque and ludicrous fabrication, a florid lie. Groth creates from whole-cloth paranoid fantasies about imagined Ellison misconduct in the case. He does so to damage Ellison in a greedy attempt to make his book about the “history of Fantagraphics” more interesting at Ellison’s expense.

14. Groth has systematically, obsessively and repeatedly traduced Ellison’s character, achievement, motivation and notable perception by a general readership. These defamatory remarks demonstrate a fecklessness clearly intended to trash Ellison’s fifty year long honorable and distinguished career. Groth’s redundant theme is that Mr. Ellison has done almost nothing of unambiguous virtue, even referring in the offending publication to the initial interview with Ellison as seeming now “somewhat jejune.” All appeals to defendants to cease and desist, to retract and correct – such as a written request on or about July 24, 2006 – were met with arrogance, insult, threats, or silence.To the extent there are other defamatory statements in portions of Comics As Art not yet made available to the public, Ellison will amend the complaint as appropriate to include those statements in this action.

Doe Allegations

15. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as Does 1 through 20, inclusive, and therefore sues said Defendants by such fictitious names. Plaintiff will amend this Complaint to allege the true names and capacities of such fictitiously named Defendants when the same have been ascertained.

16. Plaintiff is informed and believes and based thereon alleges that each of the fictitiously named Defendants is responsible in some manner for the occurrences, acts

and omissions alleged herein and that Plaintiff’s damages were proximately caused by

their conduct. For convenience, each reference to a named Defendant herein shall refer to the Doe Defendants and each of them.

FIRST CAUSE OF ACTION

(Against Fantagraphics, Groth, Thompson, and DOES 1-20 for Defamation)

17. Plaintiff repeats, realleges and incorporates by reference Paragraphs 1 through 16, inclusive, of this Complaint as if fully set forth herein.

18. Defendants published the aforesaid false and defamatory Statements of and concerning Plaintiff to numerous third parties, including publishing and disseminating the

Statements through the Fantagraphics website on the worldwide internet. Defendants have shared the Statements in published form at conventions and other public gatherings, at least one of which was in California. They have indicated a December 2006 release date for the book and Plaintiff reasonably concludes that Defendants will release the book in as wide a distribution method as possible, including distribution into Los Angeles and other parts of California. Defendants intended the Statements to be published, disseminated,

printed or circulated, or caused to be published, disseminated, printed or circulated in California, and elsewhere throughout the world. Plaintiff is informed and believes and based thereon alleges that Defendants knew the Statements were false and/or had no reasonable grounds for believing them to be true. The Statements were initially published and publicly disseminated by Defendants sometime within the past year on their website and published and publicly disseminated continuously thereafter throughout the world over the internet and at various conferences.

19. Persons who read the Statements and/or heard the Statements repeated reasonably understood the references therein to pertain and refer to Plaintiff. As alleged herein, the Statements published throughout the world are fabricated, false, malicious and defamatory statements of fact, not opinion, of and concerning Plaintiff.

20. The promotional excerpt from the book including the Statements was/were

intended by Defendants to be read, and was read, by persons who accessed the book excerpt on the Fantagraphics website in the City and County of Los Angeles, State of California. The book excerpt including the Statements was/were intended by Defendants to

be read, and was read, by persons who attended public conferences, including one in California.

21. The Statements made by Groth and published in the book, as co-authored by Thompson and published by Fantagraphics, are libelous and defamatory on their face in that the Statements maliciously and recklessly portray Plaintiff as having polluted ethical standards and as having behaved treacherously and/or flagrantly in the defense of the Fleisher matter. Each of the aforesaid statements set forth in the book excerpts are false.

22. The Statements clearly expose Plaintiff to contempt, ridicule, hatred and obloquy, and/or cause Plaintiff to be shunned or avoided, and have a tendency to injure Plaintiff in his occupation and career. Plaintiff is informed and believes and based thereon alleges that Defendant intentionally portrayed Plaintiff in this manner knowing that the depiction was false, or without any reasonable grounds for believing it to be true.

23. The Statements were unprivileged, and were intended by Defendants to directly injure Plaintiff with respect to his personal and professional reputation, character, trade and business, including Plaintiff as a world renowned author and concomitant reputation as a champion of artist’s rights. Plaintiff is informed and believes and based thereon alleges that Defendant knew, or recklessly disregarded the fact that, the Statements were likely to damage the reputation, standing and career of Plaintiff and cause damage to his standing in the public mind and in the arts and media industries.

24. The Statements are susceptible of a defamatory meaning on their face in that each of the Statements has a direct tendency to injure Plaintiff with respect to his personal and professional reputation, character and business. Plaintiff is informed and believes and based thereon alleges that the Statements were made by defendants and caused by them to be published over the internet with actual malice, with the knowledge

that the Statements were false, or with a reckless disregard for the truth.

25. As a direct and proximate result of the above-described conduct by Defendants, Plaintiff has suffered general and special damages in an amount not presently known to Plaintiff but which will be proved at trial, including damage to Plaintiff’s reputation

and standing in the community, as well as shame, vilification, mortification, censure, embarrassment, humiliation, and damage to the value of Plaintiff’s name, likeness and goodwill. Although the full nature, extent and amount of these damages are currently unknown, this Complaint will be amended at or before trial to insert such information if such amendment is deemed necessary by the Court.

26. Plaintiff is informed and believes and based thereon alleges that the aforesaid acts of Defendant were done intentionally or with a conscious disregard of

Plaintiff’s rights, and with an intent to vex, ostracize, injure, cripple commercially and antagonize Plaintiff, such as to constitute oppression, fraud or malice thus entitling Plaintiff to exemplary and punitive damages in an amount appropriate to punish or set an example of Defendants, and to deter such conduct in the future, which amount will be proved at trial.

SECOND CAUSE OF ACTION

(Against Fantagraphics, Groth, Thompson, and DOES 1-20 for Violation of Ellison’s Right of Publicity Pursuant to California Civil Code Section 3344)

27. Plaintiff repeats, realleges and incorporates by reference Paragraphs 1 through 16, inclusive, of this Complaint as if fully set forth herein.

28. Defendants, without Plaintiff’s authorization, knowingly used and continue to use Plaintiff’s name on the cover of, and in the contents of, a Fantagraphics commercial publication entitled The Comics Journal Library 6: The Writers, the focus of which is apparently an array of views, essays or other commentary by well-known writers on the subject of comics. The use of Plaintiff’s name aids Fantagraphics in the sale of this product.

29. In addition to the unauthorized use of Plaintiff’s name, Defendants gratuitously insult Plaintiff by describing him as a “Famous Comics Dilettante” on the cover of the book. This swipe at Plaintiff is consistent with the malice shown to him for the past

20 years by Groth and Thompson often through Fantagraphics. To use Plaintiff’s name without his consent is one thing, but to do so in conjunction with a slur warrants severe

consequence under California Civil Code section 3344.

30. As a direct and proximate result of the above-described conduct by Defendants, Plaintiff has suffered general and special damages in an amount not presently known to Plaintiff but which will be proved at trial, in accordance with the compensatory

damages authorized by statute.

31. Plaintiff is informed and believes and based thereon alleges that the aforesaid acts of Defendants were done intentionally or with a conscious disregard of

Plaintiff’s rights, and within intent to vex, injure or annoy Plaintiff, such as to constitute

oppression, fraud or malice thus entitling Plaintiff to exemplary and punitive damages in an amount appropriate to punish or set an example of Defendants, and to deter such conduct in the future, which amount will be proved at trial. Punitive damages are further authorized by Section 3344 itself.

32. As provided by Section 3344, Plaintiff also seeks attorney fees and costs for the prosecution of this claim.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Harlan Ellison prays for judgment against Defendants Gary Groth, Kim Thompson and Fantagraphics, Inc. as follows:

ON THE FIRST CAUSE OF ACTION

1. For general damages against Defendants in an amount to be established in accordance with proof at trial, together with interest thereon at the legal rate;

2. For punitive damages pursuant to Civil Code section 3294 in an amount appropriate to punish or set an example of Defendants and to deter such conduct in the

future. The exact amount of such damages shall be subject to proof at the time of trial.

3. For an injunction prohibiting dissemination of the defamatory statements in any form, and for the destruction of any materials containing the defamatory statements.

ON THE SECOND CAUSE OF ACTION

4. For general damages against Defendants in an amount to be established in accordance with proof at trial, together with interest thereon at the legal rate;

5. For punitive damages pursuant to Civil Code sections 3294 and 3344 in an amount appropriate to punish or set an example of Defendants and to deter such conduct in the future. The exact amount of such damages shall be subject to proof at the time of trial.

6. For attorneys fees and costs, as provided in Civil Code section 3344

7. For an injunction prohibiting dissemination of The Comics Journal Library 6: The Writers and ordering the destruction of any remaining volumes of that title.

ON ALL CAUSES OF ACTION

8. For costs of suit incurred;

9. For interest at the statutory rate; and

10. For such other and further relief as the Court may deem just and proper.

Respectfully submitted,

DATED: September 5, 2006 Law Offices of John H. Carmichael John H. Carmichael

By: _____________________

Attorney for the Plaintiff

Harlan Ellison