Darkstream: ComicsGate vs Marvel

From the transcript of the Darkstream:

The interesting thing about this particular lawsuit is that number one, the defamation claim is ridiculous. It is very, very hard to win a defamation claim in the United States. If this was in England or in a couple other legal jurisdictions maybe there’s a decent chance, but not in the States, with a few specific state-based exceptions. However, the tortious interference claim is quite possibly serious and it is quite possibly legitimate. We don’t know, however, because we do not know what went into Antarctic Press’s decision-making.

Now the circumstantial evidence does tend to indicate that Mark Waid’s call to them and the contract subsequently being withdrawn was causal, that there was a causal relationship between those two things, but for all we know at the moment it’s just circumstantial evidence. This is why there is a part of the legal process called discovery, when you get to interview the other side under oath, take affadavits, and then of course request any and all communications that were related to that decision. And so you know, again, we don’t know! Antarctic has very publicly stated that Mark Waid’s phone call had nothing to do with their decision, but of course they might be lying. They can say whatever they want and it’s totally meaningless at this point in time. Given their obvious desire to stay in with the comics industry mainstream, I don’t think that their word can be taken seriously, and so we’ll find out down the road.

I don’t think if this will ever go to trial. I think that if discovery reveals that Mark Waid’s interference did cause Antarctic to break their contract with Richard Meyer, then Waid is going to be advised to settle, and given that he may not even be paying for his lawyer himself, he may not have a whole lot to say about it. So here’s the thing: at this point in time I don’t think that either Richard Meyer and his attorney, or Mark Waid and his attorney, actually know what the truth is. The only people who really know what the truth is are not party to the lawsuit, and they are the people at Antarctic Press.

That being said, a lot of the stuff that people are talking about and what people are saying about the whole lawsuit is totally ridiculous. You know, they’re they’re trying to bring up stuff related to past comments that Richards made, they’re trying to bring up comments that Mark Waid has made, and all that sort of thing. What you have to understand is that none of that matters. You can check this out on InfoGalactic to confirm it, but there are six elements to a claim of tortious interference. Now if you listen, you’ll notice that all of the self-appointed legal experts on sites like Bounding Into Comics and Bleeding Cool and whatever, they’re not even addressing the relevant points.

So the six points. First, the existence of a contractual relationship or beneficial business relationship between the two parties, was there one between Richard Meier and Antarctic Press? Yes, there was a contract. Number two, knowledge of that relationship by a third party, there was knowledge of that? Mark Waid knew about it. Three, intent of the third party to induce a party to the relationship to breach the relationship. Did Mark Waid have that intent? Yes, we know he had that intent, he publicly stated it. Four, lack of any privilege on the part of the third party to induce such a breach. Obviously as a freelancer working for Marvel, Waid had nothing to do with either company, so four is also confirmed. Five, the contractual relationship is breached. Was it breached? Yes it was, that’s also yes. And then six, damage to the party against whom the breach occurs. Now that’s the one area that might be the weak link for Richard Meyers’s case.

(Note that it is NOT necessarily required to conclusively demonstrate causality between the interference and the breach. It can be sufficient to demonstrate that the interference was intentional, improper, and the desired breach subsequently took place. The legal focus is on the improper nature of the interference, not establishing that the interference was the sole or primary cause of the breach.)

You know, it is somewhat troubling that he is saying things that are manifestly not true, saying, “well I couldn’t get it published by any other publisher.” I can’t speak for any other publisher, but all I know is that we never heard from Richard Meyers. Dark Legion never heard from Richard Meyers. Arkhaven Comics would not have published him, but Dark Legion might have, and so if he didn’t talk to us, then he probably didn’t talk to Top Cow, he probably didn’t talk to DC, he probably didn’t talk to IDW, or to Image. I don’t know who he talked to, but to claim that you could not be published by any other publisher when at least one other publisher knows that you never contacted them… I think that you need to be careful about making obviously false claims like that. If you make a false claim, if you make a claim that everybody knows is false, it’s going to be shot down.

Now that doesn’t mean that Richard Meyers hasn’t been damaged. I think that you can probably make a pretty good case that his reputation was damaged considering the level of the incendiary attacks and so forth on him. Don’t get me wrong, I don’t like the guy. I don’t know the guy, literally the only thing I know about the guy is that he does nothing but badmouth me and Arkhaven and Dark Legion and everything to do with us, so as far as I’m concerned we’re definitely not standing with him. We’re also definitely not standing with Mark Waid, we’re just sitting here watching this from the sidelines and learning as much as we can about the industry.

But what I can also say is that if the lawyers who finally contacted me about the ComicsGate trademark via email are responsible for Richard Meyers’s case, he’s going to lose. Because if they are so dumb, if they are so lazy and incapable of doing their homework, as to send me personally a cease-and-desist email for something that I haven’t done and to which I am not even a relevant party, then there is absolutely no way they are going to win a case against a top-notch lawyer like Mark Zaid. That’s my perspective, you can take it or leave it, but the fact of the matter is that when you see incompetence and ineptitude of the sort that we’ve witnessed from some of the legal folks surrounding the ComicsGate people, I don’t think that it’s likely that they’re going to be very successful even if they have a pretty good case.

In further support of my observations, a Darkstream viewer commented:

You make a good point about the lawyers. I was arguing with Rekieta Law about the trademark thing and he didn’t realize the burden of proof is on the plaintiff not the defendant. This is something I found from 15-30 min of internet research so how he got it wrong boggle the mind. Just shows he didn’t bother to research it. It doesn’t surprise me he didn’t even bother to consider that maybe you sue the company, not management or the figurehead.

UPDATE:  I dug out the “cease-and-desist” email from 2VS’s attorneys and can confirm they are a Pennsylvania law firm that is not the same as the Texas firm that is handling Meyers’s case. So, perhaps the Texas lawyers are more on the ball.

I can also confirm that I am in no way sponsored by, approved by, or affiliated with Two-Face Van Sciver or ComicsGate. I most certainly am none of those things. At this point, who the hell would want to be?


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