August 19, 2011
Not because of any cold weather or exchanging of gifts, but because of a lawsuit over A Christmas Story.
The lawsuit is being brought by Zack Ward, who you may remember as the actor who portrayed Scut Farkus, the bully who harassed Ralphie, the film’s protagonist (you also may have seen Ward in such illustrious roles as the soldier who got stabbed by the robot scorpion in the first “Transformers” movie).
The dispute arises from a figurine made in the “likeness” of Scut Farkus.
I put “likeness” in quotations because, according to the complaint, Warner Bros. responded to Ward’s inquiry into the matter by telling him that the figure wasn’t based on his likeness.
To be exact, the letter said:
If you have seen the item in question, you will note that it does not bear the likeness of Mr. Ward. Although the hat, sweater, jacket and boots are similar to those worn by Mr. Ward in the Picture, the face of the character is not Mr. Ward’s face.
By the way, here is a comparison of the two…
I suppose the figure’s face isn’t Mr. Ward’s face now, almost 30 years after the movie came out, but it certainly looks like Ward as he appeared in A Christmas Story (at least as much as a figurine possibly could).
When so many other characters from the movie have been made into figurines, why is this one particular character even an issue?
Because, according to the complaint, Ward’s contract with the studio lacked the merchandising rider that allowed the studio to use the actor or actresses’ likeness for the purpose of producing consumer merchandise.
The contract was, in fact, completely silent as to the rights to use Ward’s likeness for purposes of producing consumer merchandise related to A Christmas Story.
The complaint claims that Ward “is the only major character who retained the rights to license his likeness.”
Was this an oversight?
Most likely, no.
At the time the film was being made, virtually no one expected it to be the lasting success it is today, so the prospect of consumer merchandise seemed remote.
In addition, I would guess almost no one thought of Scut Farkus as a “major character” (I would think he’s better characterized as a plot device of less significance than the leg lamp).
Thus, the idea of creating any consumer merchandise relating to Scut Farkus never seemed like a possibility to anyone, so why would the studio bother to attach a consumer merchandise rider to his contract and pay him more money?
Given these circumstances, forgoing the rider may have been the more reasonable decision at the time, although it may be that movie studios are more careful nowadays to avoid situations such as these.
At any rate, hopefully this case can serve as yet another reminder of the importance of covering all of your legal bases, no matter how insignificant you think your project is going to be.