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