Sat Mar 3, 2007 — by Clifford Meth

Clifford Meth: Fantagraphics's Legal Defense Fund -- Decisive or Deceitful?

OPINION from our guest columnist

Before you give your hard-earned money to Gary Groth and Kim Thompson for their recently announced Fantagraphics Legal Defense Fund, you should know a few facts about publishing companies and their insurance obligations. Fact #1: It is highly unlikely that a company the size of Fantagraphics isn't covered by a standard publishers insurance policy for lawsuits precisely like the one they now find themselves entangled in with author Harlan Ellison.

While it is rare when a publisher is found liable for incitement or negligent publication, there have been certain well-publicized instances where publishers have been forced to pay damages resulting from the content contained in their publications. For instance, the publisher of Soldier of Fortune was held liable for the death caused by a "hit man" following the magazine's publication of an advertisement for a professional mercenary. Speech may be protected by the First Amendment, but that doesn't give you the right to yell, "Poker game!" in the middle of a crowded firehouse. For instance, speech designed to incite lawlessness isn't protected by the First Amendment. Neither is slander. When slander is written, that's called libel.

For many years, one of the ways that publishers have protected themselves is by obtaining special publishers insurance. It's unnecessary to go to Lloyd's of London for a unique policy: Standard policies offer coverage for a variety of potential hazards that a publisher might encounter, from general liability (personal injury and property damage) to "media perils" (defamation, privacy, advertising injury, copyright and trademark infringement, and unfair competition). "Errors and Omissions" clauses (covering incitement and negligent publication) are standard fare in the industry. In fact, in my 25 years in publishing -- as an editor, publisher and consultant -- I have never encountered a publishing company without this type of coverage. A typical Errors and Omissions policy is inexpensive and can even be reduced by disclaimers appearing in a company's various publications.

All of this is to say that I doubt that Fantagraphics is not insured for any damages they may or may not have caused to Harlan Ellison, or anyone else who chooses to sue them. A publisher not carrying an insurance policy with Errors and Omissions is tantamount to a motorist driving without automobile insurance. Or a doctor operating without malpractice insurance.

Of course, the comic book industry sometimes functions outside of common sense and standard operating procedures. So I called a number of mid-size comics publishers (roughly the size of Fantagraphics) and asked for a show of hands. Everyone had insurance. In fact, one publisher noted that a publishing company would have a hard time getting legitimate licensing deals (such as Peanuts or Popeye) without one.

So why is Gary Groth -- the publisher of such titles as Horny Biker Sluts, Blowjob, and Beatrix Dominatrix -- walking around with his hand out like a squeegee guy? Perhaps Fantagraphics really is publishing without protection. Maybe they've found the cost of publishers insurance prohibitive following other legal actions. One can only speculate about this, and only Groth/Thompson and their insurance agent know for sure. But riddle me this: If your wife had three car accidents, and you were notified by Allstate that your premiums had tripled, would you drop your auto insurance? If you did, the next time the wife rear-ended a school bus, someone would take your house.

So, again, why is Groth begging alms for the poor? Answer: This appears to be a PR coup for the publisher who once thought his Comics Journal would make him the Hunter S. Thompson of the comics industry. Sadly, TCJ has become irrelevant, publishing porn has dubious merits, and it seems the only way Groth can virally promote his company is by manufacturing controversy. That's nothing new, of course - publishers have done this before.

But creating a legal defense fund if none is necessary? Frankly, that's a new low.

© Copyright 2007 Clifford Meth

Clifford Meth is an author, editor and publisher.

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