CBLDF MOUNTS FIGHT IN GA RETAILER CASE

[MattBrady]

Just days after seeing a victory in the South Carolina Customs case, the Comic Book Legal Defense Fund has announced that it has chosen to accept a request for help from a retailer in Georgia who has been charged with distributing material depicting nudity, and distributing obscene material to a minor, stemming from giving away comic books at Halloween.

The case involves retailers Gordon Lee of Legends in Rome, Georgia who was arrested, according to the CBLDF, after a copy of Alternative Comics #2, the Free Comic Book Day Edition reached a minor during a Halloween giveaway, and the child’s parents filed a complaint with the local authorities.

From the Fund’s press release regarding the arrest:

Alternative Comics #2, the Free Comic Book Day edition from publisher Alternative Comics for 2004, was inadvertently included in the mix of books being disseminated. The comic features a variety of stories from the company's line, including an excerpt from Nick Bertozzi's ‘The Salon,’ depicting the first meeting between Georges Braque and Pablo Picasso. On three pages of the eight page section, Picasso is depicted in the nude, a factually accurate detail for the period during which the story is set. There is no sexual content in the story. The comic was inadvertently distributed to a minor, whose parent filed a complaint with the police. The age and identity of the minor are unknown. Days later, Gordon Lee, the owner, was arrested.

“My understanding is that Gordon's store Legends was participating in a local Halloween promotion by giving away free comics to trick-or-treaters,” CBLDF Executive Director Charles Brownstein told Newsarama. “He took the leftovers from this year's Free Comic Book Day and had an agent of the store hand them out. The appearance of the book did not suggest that there was any inappropriate content on the inside, and apparently Gordon or his agent did not notice the ‘Mature Readers’ disclaimer on the back cover until it was too late. The book was unfortunately part of the mix being handed out.”

As previously mentioned, the charges against Lee include distributing material depicting nudity, and distributing obscene material to a minor. “Distributing material depicting nudity” is punishable by 1-3 years in prison and fines up to $10,0000, if Lee is convicted.

“We don't believe that Lee broke any laws,” Brownstein told Newsarama. “We believe that the material at issue in Alternative Comics #2 is neither obscene nor harmful to minors when the Miller test is applied. The Supreme Court has previously ruled that mere nudity is not obscene, even with regard to minors; therefore we believe that Gordon is innocent of the ‘distributing obscene material to a minor’ charge.

”The second charge, regarding distribution of material depicting nudity or sexual conduct, is murkier because at first glance the law may not be constitutionally sound. It applies primarily to the distribution of material through the mails, so it may not even be applicable in this case. Fundamentally, the law says that no party may send unsolicited any item through the mails or otherwise that contains mere nudity or the depiction of sexual conduct unless a disclaimer is printed on the envelope in 8 point boldface type or greater reading, ’Notice — The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender.’. The way the law is written, a publisher, retailer or artist would not be able to send review copies of books such as Watchmen, Sandman: A Game of You, A Contract With God, The Joy of Sex, Autobiography by Richard Avedon, or just about any art history collection to people within the state of Georgia unless that disclaimer were run. If they don't comply, they could face felony charges and penalties of one to three years in jail and/or fines up to $10,000.”

Lee brought the issue to CBLDF Board member Peter David in January, and the members voted unanimously to financially support Lee’s case. To those ends, the CBLDF has retained the firm of Begner & Begner of Atlanta to lead the case, with experienced obscenity defense attorney Alan Begner heading up the defense. The Fund has also retained Paul Cadle, an independent practice attorney specializing in criminal law, as associate counsel in Rome, this according to the CBLDF’s press release.

In clarifying the timeline of the case, Brownstein told Newsarama:

“Lee's agent was giving away free comics on Halloween. The best we can ascertain is that a few days following Halloween a complaint was received by police in Rome, GA and as the owner of the store, Lee was arrested on or around November 6th for the charges listed. He was held on the day of his arrest and contacted his attorney, Paul Cadle, to post bond. No arraignment date was set and Gordon got in touch with CBLDF board member Peter David about the case towards the end of January.

”Peter forwarded Gordon's request for legal aid to me and I forwarded it to CBLDF Senior Counsel Burton Joseph whose legal analysis was that no crime was committed and recommendation was that we should be involved with the case. I then forwarded a summary of the facts to the Board of Directors and they voted unanimously to take the case. Concurrent with the voting, Burton was looking for attorneys in Georgia to handle the case and came across Alan Begner, who is the best obscenity attorney in the state. After receiving a unanimous vote to take the case from the Board I gotin touch with Alan and was comfortable with him handling the case, so I turned him over to Gordon, who agreed to be represented by Alan. At the same time I was in touch with Paul Cadle, who was already familiar with the case. On Alan's recommendation we retained him to act as associate counsel. Then I sent them both their retainer checks. All of this happened between Jan 17th and 21st.

”From there, counsel spent a little more than a week familiarizing themselves with the case and had a strategy meeting on the 28th. I had a few conversations with counsel and Gordon in this window about strategy and financial details. On the 31st I was back in touch with counsel to work out the language and timing of the press release. On Friday counsel was satisfied with the PR language and permitted me to release the news for this morning.

”There has not yet been an arraignment date set, so that means no trial is set. There is strategy in motion that I can't talk about pursuant to defusing this situation, but if that doesn't work we will fight this all the way.”

As Lee is the party responsible for distributing the comic, he faces the legal challenge; however, Alternative Comics Publisher Jeff Mason and Nick Bertozzi, creator of the story that brought the charges are giving their full support to Lee.

“Neither Nick nor I were the ones arrested,” Mason told Newsarama. “I feel terrible for that retailer having to deal with this bullshit. The book has ‘For Mature Readers’ on the back cover. We solicited the book as ‘For Mature Readers’ – we even had Diamond run a number of special notices to retailers that it was ‘For Mature Readers.’”

The full version of Bertozzi’s The Salon was to be published by Alternative this summer, but is currently unscheduled, due to cash flow problems the publisher suffered in the fall. The full description of the project reads:

While developing the style that would become known as ‘Cubism’ in 1907 Paris, Pablo Picasso and Georges Braque chase bloodthirsty creatures come to life from famous paintings. Gertrude Stein, Alice B. Toklas, Guillaume Apollinare, and Erik Satie join in the hunt for the madman at the center of the mystery: Paul Gauguin. A fast-paced thrill-ride with an earthy tone that offers a pungent glimpse of pre-War Paris, The Salon deftly deconstructs the creative process, allowing the reader to enter the minds of two men who changed not only art, but the entire world. Nick Bertozzi has won two Harvey Awards and two Ignatz Awards, has received a Xeric Grant, and has been nominated for an Eisner Award and two additional Ignatz Awards.

“I do not consider the book obscene in any way whatsoever,” Mason continued. “The Salon is no more prurient than the works of Pablo Picasso, nor Georges Braque, nor Gertrude Stein, nor Henri Matisse. It is an artistic work of fiction. It would probably receive an R rating by the MPAA. It is suitable for adults and also suitable for many non-adults. I think that The Salon itself will generate a great deal of interest among people both familiar and unfamiliar with what was going on in the art world in Paris during the early 20th century.

"That said, the book does indeed show full frontal nudity and has ample profanity and other subject matter intended for mature readers. Just because a specific use of a medium depicts nudity or includes mature themes or language does not make it obscene, smut, or pornography. This is true in books, painting, sculpting, film, and believe it or not, comics.”

Again, Brownstein, “It's our belief that the charge of distribution of obscene material to a minor is a misapplication of the law, because the work in question does not appear to be constitutionally obscene. The distribution of material containing nudity charge is not limited to what can be distributed to minors, but also applies to the distribution of such material to adults. It's an open legal question as to whether the law is constitutionally valid on its face or as applied to this case.”

And Lee, from the CBLDF release: "Though I am willing to apologize for this particular art book getting in the hands that found it offensive, I will adamantly agree that the book is not 'harmful to children' or 'obscene.' In my opinion, this book is no more offensive then viewing the beautiful paintings of the Sistine Chapel or reading one of the best selling books with stories of sex, lust and nudity known as the Bible."

Lee continued, "I would like to thank Peter David for expediting my concerns and contacting the Comic Book Legal Defense Fund on my behalf. I feel their influence and considerable knowledge in First Amendment rights will be extremely beneficial in this case which will lead to a very successful and satisfying conclusion."

The CBLDF has already invested $10,000 into the defense of this case and is prepared to continue its investment in this case through to its conclusion. Brownstein: “A legal strategy is now in motion, but I really can't comment on the specifics.”

[Vyper]

Another week, another ludicrous charge involving comics. I noticed that the text of the article did not say at any point that the "obscene" material was distributed directly to the minor, only that it eventually found its way into a minor's hands (unless I'm reading it wrong).

I can't help but note that there appears to have been an influx of lawsuits involving the content of comics in the recent year or so. It seems the U.S. is still feeling the fallout from Janet's "wardrobe malfunction."

[KyleCowstar]

I'm glad I don't live in the south.

[Peter David]

Originally posted by KyleCowstar
I'm glad I don't live in the south.

Yes, well, consider the notion that if the law withstands constitutional challenge, others states can eye instituting similar laws.

PAD

[fredeur]

Originally posted by MattBrady
As previously mentioned, the charges against Lee include distributing material depicting nudity, and distributing obscene material to a minor. “Distributing material depicting nudity” is punishable by 1-3 years in prison and fines up to $10,0000, if Lee is convicted.

Holy chit, only nudity, not even sexual act, and the guy could go in prison? oO

I'm glad I don't live in the US.

[hamsterdance]

This is sad. I wonder if the industry could implement a standardized ratings system similar to MPAA or the video games industry. OTH, I wonder if it would help other than to give retailers, publishers and creators an extra legal defence shield. Wiitness the lawsuit in Britain against Rockstar for their game Manhunt which is to not be sold to anyone under the age of 18.

It's not just the U.S. that has this problem.

[JLAJRC]

Originally posted by hamsterdance
This is sad. I wonder if the industry could implement a standardized ratings system similar to MPAA or the video games industry. OTH, I wonder if it would help other than to give retailers, publishers and creators an extra legal defence shield. Wiitness the lawsuit in Britain against Rockstar for their game Manhunt which is to not be sold to anyone under the age of 18.

It's not just the U.S. that has this problem.

We kind of already do Hamster. We have that seal that nobody pays attention to. Plus, when you buy a comic under any of the DC or Marvel imprints, it's kind of clear what you're getting. (Vertigo and Max are for mature adults, Marvel Knights is for teens, etc.) The big companies seem to have little problems with this type of stuff.

The problem seems to be the indies. Have you ever noticed that everytime a case likes this pops up, it's always some obscure book from an fairly unknown publisher that seems to cause the trouble? With these types of books, it's practically a crackshot. Without looking inside the comic itself, you usually can't tell what you're getting by just looking at the cover. May be obscene, may be not.

Anyway, what happens here appears to be an accident. Is there anyway to possibly plea bargain this down to an apology and a small fine? Jail time and that huge is too far.

[Scott Wherle]

So what we're teaching our children these days is that the naked body - even in small doses - is harmful to our children, yet two groups of overpaid athletes can beat the hell out of each other for bragging rights and a ring during the most-watched TV program each year, and this is something to celebrate.

You'd think as the years went on, the leaders of this world would become more progressive, and not continue this frightening backslide into the Dark Ages.

[Alfonso]

Shit. So this was the major lawsuit PAD referred to on his blog. This is just idiotic, since the scene depicted is regarded as historical fact. I mean, what, next are they going to try to censor any reprinting or parasketch of Davinci's Vetruvian Man just because he's naked?

What the hell is so scary about nudity? I mean, hey, I like it, bring it on. What are these nutbag conservatives so afraid of?

[William Satterwhite]

Originally posted by JLAJRC
Without looking inside the comic itself, you usually can't tell what you're getting by just looking at the cover. May be obscene, may be not.

The problem here is that while it may have been poorly placed and not as noticeable as it should have been, the book did carry a "mature readers" label. One didn't have to look inside to see that the material was intended for a mature audience, it was labeled as such

Anyway, what happens here appears to be an accident. Is there anyway to possibly plea bargain this down to an apology and a small fine? Jail time and that huge is too far.

A plea bargain would probably be best for both the defense and prosecution but if the CBLDF is going to push the case, it might not be an option. They're trying to say the retailer didn't do anything wrong while a plea bargain would probably require some admission that he (inadvertently) broke the law.

[Joey Manley]

We've been serializing Nick Bertozzi's "The Salon" online, at serializer.net, for more than two years now -- if anybody has any interest in viewing the comic causing the controversy.

http://www.serializer.net/series.php...n&view=current

Joey
www.joeymanley.com

[Moonhowl]

Originally posted by Alfonso
Shit. So this was the major lawsuit PAD referred to on his blog. This is just idiotic, since the scene depicted is regarded as historical fact. I mean, what, next are they going to try to censor any reprinting or parasketch of Davinci's Vetruvian Man just because he's naked?

What the hell is so scary about nudity? I mean, hey, I like it, bring it on. What are these nutbag conservatives so afraid of?

What they're afraid of comes from the same Puritanical mindset that came here in the 1600s because Europe wasn't conservative enough. There will always be people out there who feel it is their God given right to impose their way of morality on others. Not to mention how lawsuit crazy America has become. I pretty much forsee this case being dropped unless the judge is one of the aforementioned imposers who feels he needs to make an example of some poor retailer. I wonder how much of this is sparked by the parents of the kid seeing an opportunity to sue the guy in civil court, regardless of the outcome. It's like the crap with Michael Jackson, I'm glad to see the family going after inprisoning the guy rather than accepting a few million as a buy out like the last family did. Something I noticed in this is that the warning label was on the back cover. You would figure the court would of put blame where it belongs, on a company that didn't properly mark their merchandise. But I guess it was easier for them to strong arm an honest businessman rather than trying to trackdown an out-of-state (possibly) comic book company.

[AlexLothos]

Originally posted by Moonhowl
What they're afraid of comes from the same Puritanical mindset that came here in the 1600s because Europe wasn't conservative enough. There will always be people out there who feel it is their God given right to impose their way of morality on others. Not to mention how lawsuit crazy America has become. I pretty much forsee this case being dropped unless the judge is one of the aforementioned imposers who feels he needs to make an example of some poor retailer. I wonder how much of this is sparked by the parents of the kid seeing an opportunity to sue the guy in civil court, regardless of the outcome.

*nods in agreement* This was pretty much the comment I was going to make. Thanks for typing all that.

I'm surprised they haven't started ammending old works of art and Photoshoping clothes onto the statue of David and the paintings in the Cistine Chapel- the real works and in text books.

[skeletorjr]

Prison? Good grief. It was an accident! Obviously a clerk is not going to just hand a kid a book that's labelled 'mature readers' unless the parent knows and gives their permission. I can understand the parent being ticked off if their kid saw something they didn't want them to see, that's none of my business, but to take it to this extreme is just unnecessary. I've been a Christian most of my life, and I don't get the fuss. It was a weenie, nobody was getting schtupped or peed on, were they?

[Nat Gertler]

Originally posted by MattBrady
The Supreme Court has previously ruled that mere nudity is not obscene, even with regard to minors; therefore we believe that Gordon is innocent of the ‘distributing obscene material to a minor’ charge.

It should be noted that the previous ruling being refered to here is Jenkins v Georgia -- i.e., a case dealing with the same state's laws. (This one had to do with showing the film "Carnal Knowledge".)

[hamsterdance]

the warning label was on the back cover. You would figure the court would of put blame where it belongs, on a company that didn't properly mark their merchandise.

I was wondering about that too. Why did the publisher not put a big warning label on the FRONT of the comic? I never look on the back of a comic for content ratings. What was the publisher's reasoning for a back label as opposed to a front label? To boost sales? Will the publisher now start putting thier content advisory on the front?

[hamsterdance]

The problem seems to be the indies. Have you ever noticed that everytime a case likes this pops up, it's always some obscure book from an fairly unknown publisher that seems to cause the trouble? With these types of books, it's practically a crackshot. Without looking inside the comic itself, you usually can't tell what you're getting by just looking at the cover. May be obscene, may be not.

Maybe the Comics Code or whatever it was called needs industry enforcement. Sell to a retailer - whether Direct Market or Mass Market and there should be a content rating that's easily located and understood.

TV has it - it's how the V-Chip works
Movies have it
Music has it
Video Games have it

see the trend? I could see how Diamond might be force for good in this area. Create an industry council - have as much imput from creators, publishers, concerned parent groups, consumers get together to define and acceptable industry wide rating. Then Diamond could help it along by mandating that any comic that wants to be distributed by them must include a content rating.

FYI, I say include parent-advocacy groups simply because they're the organizations that can mobilize most easily a constituency to attack comics publishers, creators or retailers. You need to get them involved. If they feel left out of the loop they will use the only tools they feel left open to them - attack lawsuits and restrictive legislation.

It's not a guarantee of no lawsuits in the future but it's a start.

[Samy Merchi]

I don't see the problem.

An accident happened. The retailer should apologize to the parents, the parents should accept, case closed.

Don't see the need for any big deal here.

[Peter David]

Originally posted by AlexLothos
*nods in agreement* This was pretty much the comment I was going to make. Thanks for typing all that.

I'm surprised they haven't started ammending old works of art and Photoshoping clothes onto the statue of David and the paintings in the Cistine Chapel- the real works and in text books.

Funny story...

There was a noted censor in Rome who, once Michelangelo died, successfully lobbied for the nude frescos in the Sistine Chapel to be covered over, declaring such subject matter should be reserved for displays in bars and other low places. A student of Michelangelo was hired to paint drapes and veils onto the ceiling.

When the ceiling was restored a few years back, restorers were faced with an interesting conundrum. Do they remove the censorship applied by an artist centuries earlier so that the master's artwork could be properly displayed? Or do they leave the coverings because they're of historical significance in that idiots had the temerity to soil a masterpiece? They compromised, removing some, leaving others.

No matter how great artwork can be, there's always numbnuts in the forefront to scream that others must be protected. The censors can succeed in short term, but long term tends to favor the artists.

PAD

[skeletorjr]

Originally posted by Samy Merchi
I don't see the problem.

An accident happened. The retailer should apologize to the parents, the parents should accept, case closed.

Don't see the need for any big deal here.

Amen to that, well said. Making it bigger than it needs to be is pointless

[Nat Gertler]

Originally posted by hamsterdance
What was the publisher's reasoning for a back label as opposed to a front label? To boost sales?

This was a Free Comic Book Day comic. It wasn't supposed to be sold to the end reader, and the retailers who ordered it were faced with a solicitation stating it was for mature readers. The advisory will be on the front cover of their next FCBD book.

As for an industry-wide rating system, you may want to read this prior thread which addressed that concept. Pay particular attention to the posts of Kurt Busiek, as he is knowledgable and insightful in his explanations of the problems with rating systems.

[President Kang]

this a whole muck-a-muck could have been easily avoided if the comic shop owner didn't give a "mature audiences" comic to a kid. He really pulled a boner on that one.

[Cientista]

As someone has already said in here, I'm glad I don't live in the USA. And as someone already said in here, I also dig nudity, a lot. Actually I dug it even more when I was a kid!

[EricPico]

Here are two stories you may find interesting or amusing from England and Australia.

http://news.bbc.co.uk/1/hi/england/somerset/4212207.stm
http://www.theaustralian.news.com.au...55E401,00.html

I believe Gordon Lee is somewhat to blame for distributing a product with a ‘Mature Readers’ disclaimer, accident or not. The whole possibility of felony charges and penalties of one to three years in jail and/or fines up to $10,000 are ridiculous. I agree with everyone that a public apology should end this.

[Peter David]

Originally posted by President Kang
this a whole muck-a-muck could have been easily avoided if the comic shop owner didn't give a "mature audiences" comic to a kid. He really pulled a boner on that one.

Well, first of all, we don't know that he did. The identity of the "kid" has not been revealed yet. For all we know, we're talking a 17 year old who pulled the comic from his older brother's bag.

Second, the charge involves a law about distributing obscenity to a minor. In no way, shape or form does the material even begin to meet the criteria of obscenity, so the entire thing should be moot.

PAD