DECLARATION OF HARLAN ELLISON
I, Harlan
Ellison, declare:
1. I am the Plaintiff in the action styled Ellison v. Fantagraphics, Inc. et al. I make this declaration in support of my
Opposition to Defendants’ Special Motion to Strike Per C.C.P. section 425.16.
The foregoing statements are made of my own personal knowledge and, if called
to testify in court, I could and would competently do so.
2. I have made two claims thus far against
the Defendants in this action:
(a)
That Defendants used my name (along with an offensive epithet) on the cover of a
book in 2006 without obtaining my approval or paying compensation. For purposes of this
declaration, I will refer to that claim as the ‘Right
of Publicity’ Claim under C.C.P. section 3344.
(b)
That Defendants have libeled me by publishing defamatory statements
about my alleged misconduct in an earlier case. For purposes of this declaration, I will
refer to that claim simply as the Defamation Claim.
3. However, before I directly address the
arguments put forward in Defendants’ Motion regarding the specific claims, I
would like to provide the Court some context and background regarding the unfortunate history
between the Defendants and myself. It is relevant particularly to show the
inherent malice employed by Defendants in connection with the conduct which
gives rise to my claims against them.
4. As alleged in my complaint, in 1980,
Gary Groth asked me if I would give an interview on the state of the art of comics
for publication in one issue of a Fantagraphics periodical known as “The Comics
Journal.” I accepted Groth’s invitation and the interview appeared in the 1980
Winter edition of that publication.
5. One of the comic contributors discussed
in the interview, a writer and comics contributor named Mike Fleisher, was
offended by my statements regarding the origins of his art. Even though my
comments were fundamentally positive regarding Fleisher’s work, Fleisher
objected to my hyperbolic opinion that his work had to be the product of a
uniquely twisted mind, like that of such great fantasists as Lovecraft or Poe.
6. My offhanded if provocative remarks
were my opinions about Fleisher’s writing and its laudable literary origins,
and not slanderous statements suggesting my actual knowledge of Fleisher’s
mental state. But there was no reasoning with or apologizing to Fleisher; he
was determined to sue and in fact he did. He named me, 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, Mr. Groth went up to an older, tough looking male juror and 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.” I observed Groth to change
his approach to me after that rebuke. While we had disagreements over various
matters during the course of the litigation, his attitude toward me seemed to
change dramatically after that incident. His manner and his conduct suggested
to me that he was going to try to “get” me in some way.
8. Since that time, for approximately the
past 20 years, Mr. Groth has taken every opportunity to take shots at me and
worse, even co-founding an organization called “The Enemies of Ellison,” a hate
group whose activities are for the most part published record. For example, an
article in the periodical entitled Gauntlet
from 1995 describes this group as engaging in a “six month campaign to
annoy Harlan Ellison.” A true and correct copy of that article is attached
hereto as Exhibit A. I can assure the Court it was much more than mere
annoyance. This small but virulent group, of which
Groth was a prime mover, wrote letters to editors of publications I had written
freelance reviews for, such as The
Washington Post, and effectively caused the paper to stop hiring me. They
sent letters to Playboy, where I had
been a contributor prior to their conduct, and effectively terminated that
professional relationship. Attached hereto is a true and correct copy of the
first two pages of a publication of the Enemies of Ellison/Victims of Ellison
hate group from January 1994, which I received in the ordinary course of
business from a business associate.
9. Fortunately, I had some friends, too,
and they formed a competing group called “Friends of Ellison” which helped. But
around this time I suffered a heart attack, resulting in a quadruple bypass,
and still maintain that the organized character assassination, perpetrated in
large part by Groth, Thompson and Fantagraphics, was a major contributing
factor to my ill health.
10. I finally sent them a cease and desist
letter, but did not pursue litigation at that time. It is difficult even now
for me to pursue litigation on defamation grounds because I have been
recognized for my defense of First Amendment Rights, including winning the PEN
award in 1990 for “Continuing Commitment to Artistic Freedom and the Battle
Against Censorship”; in 1998 I was the recipient of the coveted “Defender of
Liberty Award” of the Comic Book Legal Defense Fund for my fifty-year efforts
promoting free speech. Yet, knowing
misstatements of fact, made intentionally to harm another’s reputation, as
described below, are not the sort of speech I have worked to protect.
11. As the Gauntlet article noted in relation to the Enemies of Ellison group
and my 1995 cease and desist letter, “When we factor in the incessant
activities that Groth engaged in, when we tally those activities in the
aggregate, we begin to understand the
temptation Ellison must have felt to do something –
anything! – to make this stop, to make this go away.” Indeed, I had
hoped that it had gone away.
12. Unfortunately, the unpleasant discovery
of the unauthorized use of my name on the cover of a 2006 publication –
referring to me as a “comics dilettante” – and the false statements about my
alleged misconduct in the Fleisher case, are forcing me finally to take action
against these Defendants who have tested and tested the outer limits of First
Amendment protection where I am concerned. I have done what I can over the
years to avoid a direct legal confrontation with Groth, Thompson and
Fantagraphics, even though I have found their activities harmful. But this year, given their unauthorized use
of my name along with an insult on the cover of a book, and the publication of
misstatements of fact about the nature of my alleged misconduct in the
Fleisher case in yet another book, the Defendants have simply gone too far.
Thus, I am compelled to take steps to protect my reputation by correcting the
published record of events in the Fleisher litigation and curtailing the
unauthorized use of my name.
13. In his declaration, Groth has suggested
it is somehow improper for me to attempt to enjoin publication of the libelous
statements about me or to stop the unauthorized and uncompensated use of my
name, complete with the associated slur. I respectfully disagree. I believe
this is a proper use of the law and would not have resorted to it all if the
Defendants had responded favorably to my letter of July 24, 2006.
14. Mr. Groth also suggests that my
hyperbolic analogy describing taking legal action against him to “whomp him
upside the head” – which was made casually in an internet forum – is evidence
of an improper motive on my part. There are many other cliché’s I could think
of to describe this action against the Defendants including, without
limitation, “putting my foot down,” or “drawing the line.” The fact of the matter is I wrote to
the Defendants; I asked nicely if firmly, that they
reconsider publishing this false and defamatory material, and stop trading on
my name without authorization. I did not want it to
come to this. But since it did, I see nothing
improper in seeking legal redress in the form of an injunction, damages, or
both. If that constitutes “whomping” Defendants upside the
head, then so be it. I would prefer not to be in this
circumstance at all and tried to avoid it with my earlier correspondence. I
certainly did not expect them to make a federal case out of it, but here we
are. I would hope the Court can see that I am not trying to “chill” the
exercise of Defendants’ First Amendment rights or any
other rights. Instead, I am simply trying to correct the record of my
participation in the Fleisher lawsuit and to prevent the further unauthorized
use and marring of my name on Fantagraphics’ publications, their “products.”
The
Defamation Claim
15. I am generally fastidious about finances
in general, and in particular the payment of legal fees, so it is particularly
galling to be referred to by Mr. Groth as one who enacted “schemes” to
“wheedle” out of paying them in an attempt to “screw” Groth and the lawyers in
the process.
16. In truth, I worked diligently throughout
the course of that litigation to pay the necessary fees and costs and to find
insurance coverage which might provide a defense. There were times when I had
to borrow money to pay certain fees and I did so. Attached as Exhibit C, is a
true and correct copy of business records I kept in or about the time of the
Fleisher lawsuit showing certain legal fees and costs I paid in connection with
that case. I caused my then-assistant to write the cover letter to those
documents for forwarding to one
of the attorneys that worked on the case. I would ask
the Court consider not just the content of the document – reflecting that I
paid substantial legal fees and costs in
connection with the case – but also the exacting
nature of the record keeping, which reflects my concern for accuracy relating
to the payment of fees and costs.
17. Exhibit D is a true and correct copy of a
letter dated December 30, 1986 from an assistant in one of my attorneys’
offices, which my office received in the ordinary course of business confirming
that my record of payment to those attorneys showed figures “identical” to the
law firm’s own payment records.
18. Exhibit E is a true and correct copy of a
letter dated December 6, 1981 from Gary Groth to me in which Mr. Groth stated,
“On our lawsuit front . . . I have not heard from Bob Eegan – which is just as
well, since I’m flat-out broke.” In that letter, Mr. Groth asked me to return a
$1000 advance which he had paid me for a writing project. I returned the money,
as revealed in Exhibit F, a March 10, 1982 letter from Groth to me.
19. Exhibit G is a true and correct copy of an
undated letter from Groth to me in which Groth states, “On another front, I have
heard twice from the old law firm in NYC who’s trying to squeeze more money out
of us; I have put them off both times, and haven’t heard from Bob Eegan in two
weeks. We seem to be low priority for which I am thankful. Frankly, I resent
paying them more money for services I’m unsure we ever got.” This is important, because in his declaration
Groth tries to blame me for any problems we had with this New York firm
handling the personal jurisdiction motion. In fact, he was the primary
interface with this firm, and we had both paid $5000 to attorneys in Los
Angeles for them to parcel out as needed to the New York firm in question. I
did nothing to attempt to “screw” them or Groth, or to “wheedle” out of paying
them. Groth himself was questioning whether
the charges were proper where that firm was
concerned, and I was relying on him and my counsel in Los Angeles to advise me
how to address those issues.
20. Exhibit H is a true and correct copy of a
letter dated October 5, 1981 from my lawyer to Groth with a copy to me. I
received this letter in the ordinary course of business and recognize it as
correspondence from my then-attorney. It says that I asked that
law firm, which was holding certain funds from both
Groth and me in connection with the lawsuit, to transfer my remaining portion
into trust for Groth’s use in continuing to defend the case. At that point it
appeared that the Court was not going to exercise personal jurisdiction over me
and I would be therefore “out” of the case. It was a good faith gesture on my
part and reflects the fact, along with my return to Groth of a $1000 advance
when he said he needed it, to meet my financial responsibilities in connection
with the case.
21. I dispute Groth’s statements contained at paragraph 14 of his declaration that I told the New York firm handling the personal jurisdiction motion that I had “given [Groth]” all the money I had to pay legal fees. It contradicts Groth’s statement that he and I had paid into a common fund held by our Los Angeles counsel, for disbursement to the New York firm. In that instance I relied on counsel to advise me how to proceed with the New York firm. Groth told me both on the phone and in writing in Exhibit G, discussed above, that he
did not believe all the demanded fees were owed and
did not think we should pay it. As I stated, he was the primary interface with
the New York firm, and I deferred to his judgment, and my Los Angeles counsel’s
judgment, on that point. Now he appears to be blaming me for everything,
despite his own written reservations about the fees charged by that New York
firm. To the extent I ever had an issue over fees and costs in the Fleisher
matter, it was on the basis of a
legitimate question regarding fees, or the need to defer payment until funds were
available.
22. Eventually, when it looked like I would
be held after all to appear based on the Court’s exercise of personal
jurisdiction over me, and after much diligent research and
arduous negotiations with Fireman’s Fund Insurance
Company, that carrier agreed to provide me with a defense under a reservation
of rights. At that point, I became
represented by Patrick Lyons, Esq. A true and correct copy of various
correspondence I caused my office to send to Mr. Lyons related to costs is
attached hereto as Exhibit I.
23. Attached hereto as Exhibit J is a true
and correct copy of a letter and check dated January 16, 1987 which I caused my
office to send to non-insurance supplied counsel after the case representing
payment for legal services on the Fleisher case, and stating that this check
would close out an account I used for the purpose of paying legal fees and
costs in that matter.
24. Attached hereto as Exhibit K is a true and
correct copy of a letter dated December 16, 1987 to my non-insurance supplied
counsel which stated that the $11,000 payment sent with that letter constituted
full payment for any and all balances then owed. The letter thanks counsel for
his continued “support, assistance, and persistence” in these matters.
25. Attached hereto as Exhibit L is a true and
correct copy of a letter dated May 12, 1983 from one of my attorneys to The
Honorable Vincent L. Broderick regarding the order to show cause hearing
regarding sanctions and apprising the court of our attempts to settle the
matter prior to the hearing.
26. Attached hereto as Exhibit M is a true
and correct copy of a letter dated May 16, 1983 from my counsel to Fleisher’s
counsel, explaining the fact that the reason I had not paid was not based on a “refusal”
on my part, as stated by Groth, but because I simply did not have the funds. In
fact, I did not “cough up” the funds “shortly before I was about to
be arrested” as stated by Groth, but had to have my
own attorneys front those costs in order to avoid arguing “inability to pay” at
the OSC on the sanctions motion. I did not
willfully disobey a court order, but found myself
unable to pay to the time-table set by the Court. I would have argued that at
any hearing on the matter, or I would have borrowed the
funds from another source, any other source, to avoid
the result of a contempt finding at
the hearing. Groth grossly mischaracterizes the way
in which my obligation to pay
Fleisher’s costs arose, the reason it was not paid
initially, and intimates that I was an adjudged contemnor, without legal
excuse, dodging Federal Marshals. It is bad enough that I found myself in that
situation to begin with, but to have it mischaracterized and exaggerated by
Groth as though I were playing games with my legal obligations and court
procedure is highly offensive, inaccurate and pejorative.
27. I would also like to state that I did not
“cut any deal” to cover Fleisher’s costs in connection with discovery on the
personal jurisdiction motion, but was ordered by the court to appear for
deposition and pay Fleisher’s costs if I lost. I did not want to be there at
all, and was not in a position to cut any deals.
The Misappropriation
Claim For Relief Under C.C.P. section 3344
28. As admitted by Mr. Groth in his
declaration, Fantagraphics released a book earlier this year which, unbeknownst
to me, featured my name on the cover, along with a slur, referring to me as a
“Famous Comics Dilettante,” thus denigrating and dismissing my work in the
genre that goes back to the 1960’s.
29. When I sat for the interview in question
some 26 years ago, I never envisioned, nor would I have authorized, inclusion
of the interview in book form. I was told by Mr. Groth that the interview would
be carried in his nascent “Comics Journal” a
periodical. Had he informed me that one of the
intended uses of the interview would be to include it in a for-profit book
publication 26 years after the fact, and that he would include my name on the
cover of the book to help sell it, and include an insult next to my name in
the process, I never would have agreed to it. I have
granted to the Defendants no right to use the interview in the form they have
most recently used it. The use of my name on the cover of the book is
unauthorized and uncompensated.
(Continued)
I
declare under penalty of perjury under the laws of the United States and the
State of California that the foregoing is true and correct. Executed this 11th
day of December at Los Angeles, California.
__________________________
Harlan
Ellison