Posted by Don MacPherson on August 20th, 2007
I read with some interest the details of the settlement agreement between Harlan Ellison and Fantagraphics Inc., bringing to an end the former’s defamation and “right-to-publicity” lawsuit against the publisher over two publications: The Comics Journal Library 6: The Writers and the forthcoming book Comics as Art: We Told You So. I’m not a lawyer; I defer to the assessments and judgments of legal matters to my barrister/solicitor girlfriend and law professor/scholar brother. However, I do spend some amount of time pouring over court documents in my capacity as a crime/courts reporter for a daily newspaper. It is from that perspective that I write the following about the Ellison/Fantagraphics settlement:
Ellison filed the lawsuit against Fantagraphics and its publishers Gary Groth and Kim Thompson just shy of a year ago in September 2006 and survived a defendant motion to strike, though that decision was under appeal. The crux of the lawsuit is Ellison’s opposition to the inclusion of an interview he did with The Comics Journal (a Fantagraphics publication) some time ago as well as commentary about Ellison. Ellison’s contention was that the material was defamatory in nature and that his image and persona were being used to promote the product without his authorization. Fantagraphics countered that the First Amendment of the Constitution of the United States, guaranteeing the right to free speech. The lawsuit sparked a series of verbal salvos online, as Ellison and Groth hurled insults at one another over a virtual fence.
The settlement agreement contains some standard legal language. Some of the terms are logical and standard, such as the lawsuit coming to an immediate and perpetual end and no admission of liability on either party’s part. There’s also a clause about distribution of costs, which is not unusual, though it’s a bit odd that neither side ends up out of pocket for any of the other’s legal fees.
What I find most interesting about the settlement is the fact that the parties have agreed to — and allow me to translate it from legalese — keep their gobs shut. Quoting from the settlement:
“Plaintiff and Defendants agree that henceforth (1) Defendants shall refrain from making ad hominem, personal attacks on the Plaintiff so long as Plaintiff shall live, and (2) Plaintiff shall refrain from making ad hominem, personal attacks on the Defendants so long as Defendant shall live (or be in existence, in the case of a business entity). Notwithstanding the foregoing, the Parties agree and affirm that they shall be free at all times to review, criticize or comment upon one another’s work, writings, advocacy, public statements or other public activities, broadly construed. The Parties further agree that they shall make no further statements or nonverbal communications regarding the settlement of the Lawsuit…”
As a defence, Fantagraphics was asserting its First Amendment rights. Ellison has long been hailed (and hails himself) as a defender of the First Amendment. That’s a boxload of boosters for free speech, so it’s odd and rather unfortunate that some of the most important elements of the settlement focus on restricting people from speaking their minds. Furthermore, the settlement decrees that two “passages” will be removed from Comics as Art, and future printings of The Writers will exclude the Ellison interview.
The one element in the settlement that allows anyone involved to speak out stems from Ellison’s allegations that Groth engaged in criminal activities. The agreement allows Groth to rebut those allegations on Ellison’s website. It limits the rebuttal to a life of 30 days on the site to a maximum of 500 words.
This is not your typical court settlement. First of all, settlements are not, for the most part, made public. Customarily, all one hears is a statement denying the settlement constitutes any kind of liability and maybe a general dollar figure if cash changes hands. And inevitably, cash does change hands, and that’s another way in which the Ellison/Fantagraphics settlement is set apart in the world of U.S. civil justice.
Mind you, I’m not saying this is unheard of. The nature of court settlements and decisions are as diverse as the people bringing the lawsuits, defending against the lawsuits and deciding the outcome of the lawsuits.
But there’s no denying this one is outside of the norm. As I read the settlement details online last week, I was struck by the impression that the two sides were not unlike bickering siblings, and a parent finally stepped in and said, “That’s it you two, go clean your rooms. And if you can’t say anything nice, don’t say anything at all.”
Bear in mind that my experience is with the Canadian system of justice. However, the laws governing the U.S., Canada and the U.K. are founded on the basic principles of common law, so there are similarities, not only in the systems but the guiding philosophies.
The settlement is described in the document itself as a compromise, and it’s clear that Fantagraphics and its leaders have had to compromise here. Their mission was to defend their constitutional rights, but for a smaller business, Fantagraphics has made a good call with this settlement. Defending one’s principles is admirable, but if doing so proves to be a burden to the point of distracting from its core business and mission, a quick settlement at a low cost is a positive outcome.
On the surface, it’s Ellison who comes out on top with this settlement. He gets what he wants, blocking publication of the material he perceived as offending his sensibilities. But Ellison may have neglected to consider another potential harm, one he might have done to himself. Ellison is a rare talent from the world of sci-fi and fantasy that’s managed to penetrate the mainstream consciousness of pop culture. He’s also a self-proclaimed defender of the First Amendment, but many have seen his actions in this legal proceeding to be contrary to that ideal. At 73, it’s possible that this may be Ellison’s last instance of publicity, or at least it may be this hullabaloo for which many in the comics and publishing industries will remember him.
With this settlement, Fantagraphics has compromised. I wonder, though, if Ellison has managed to compromise his legacy.