A Christmas Story: Behind the Scenes of a Holiday Classic

by Caseen Gaines

  As a result, Petrella has collaborated with Warner Bros. on a number of Christmas Story–related projects over the past decade, including special features for the twentieth anniversary DVD and, most recently, 2011’s A Christmas Story Scene contest, for which fans were encouraged to recreate their favorite moment from the film. Petrella and executives from the studio selected someone to win a two-day trip to the Christmas Story House and what the website describes as a “VIP Chinese dinner.”

  Despite Petrella’s mixed feelings about helping the studio cash in without him and his other actors getting what they perceive to be their fair share, he seems likely to continue doing just that. “Warner Bros. asked me to do something for the thirtieth anniversary DVD release,” he explains. “I had my publicist call them to try and see what kind of money we could negotiate from them and they basically were like, ‘We don’t pay you for this. We’re not going to pay you.’ It was one of those things like, okay, I could say, ‘No, I don’t want to do it,’ but how is that going to reflect on the film? For me, right now, the most important part is, as long as it makes the film look good, makes Bob [Clark] look good, makes Jean [Shepherd] look good, then that’s the most important part. It does get a little bit difficult and hard sometimes, and there are times when you just want to say, ‘I don’t want to have anything to do with this,’ and just walk away, but what good is that going to do? Nothing.”

  Zack Ward in 2009 © Albert L. Ortega / PR Photos

  Ultimately, Zack Ward settled his lawsuit with Warner Bros. and Enesco over the figurine. When the topic was brought up in a telephone interview with him and Randall S. Newman, his lawyer, it was clear that no new information would be shared outside of what was reported at the time of the settlement. They said the suit had been “amicably resolved” and left it at that.

  However, the suit that resulted from Ward’s telephone call from Joel Weinshanker of the National Entertainment Collectibles Association, Inc. (NECA), on October 27, 2006, was not resolved quite as amicably.

  Weinshanker told the actor that his company wanted to manufacture and sell a 7" action figure based on the character Ward played in the film, but since Warner Bros. didn’t have his merchandising rights, they needed permission from him first. Having never seen himself as an action figure, Ward was interested in working out the terms of a licensing deal, but there were some initial concerns.

  “You know, I once got a call from the Monopoly people who wanted to offer me $200 to use my likeness,” Ward said before recapping the episode for Weinshanker.

  “Yeah, those guys. Such douchebags,” Weinshanker offered.

  The two worked out a tentative agreement over the phone and, on December 20, Weinshanker sent the actor a contract. Ward gave it a quick once-over, signed it, and sent it back.

  He forgot about it until October of the following year. NECA sent over a prototype for Ward’s approval, and it didn’t take long for the actor to feel his decision to collaborate with the collectible company had paid off. The face on the action figure was far from “generic”; Ward’s unmistakable features were etched into the ceramic miniature.

  The following year, the Scut Farkus figurine hit the market. Although Ward was enthusiastic about the toy’s release, he soon noticed some red flags. For one, Weinshanker had all but disappeared from Ward’s radar. The actor had been promised quarterly reports on the sales of the figurines, but they never arrived. The actor emailed and phoned the NECA offices several times over the course of the following year, but Weinshanker was never available.

  As the weeks became months, Ward moved the quarterly reports and his action figure to one of the bottom rungs on his ladder of priorities. He had continued working and wasn’t interested in launching a full-scale manhunt for Weinshanker. The toy had all but been forgotten until May 2010, when Ward was packing up his apartment to move. “I was in my office, just packing stuff up, and I came across my contract with NECA,” he says. “And I looked at it and said, ‘This sucks.’ I hadn’t even gotten any free action figures. I had to buy them at retail price! It was like that. There were people over at NECA who[m] I spoke to when I called, who were very nice people, who actually sent me their action figures and I signed them and sent them back to them, but no one could get me to Joel. I had no animosity toward the people who designed the figurine, but I was fed-the-fuck-up with Joel because I felt like I had been lied to and it made me mad.

  “So, I’m holding this contract over the shredder, and I’m about to drop it in, and I think, Goddammit! No,” Ward continues. “This is not the way it’s supposed to work. I’m a Canadian, and I believe you’re supposed to do the right fuckin’ thing. So I made some phone calls.”

  It was suggested to Ward by a friend of his that he call Randall S. Newman. Newman and Ward assumed this to be a standard collection suit for nonpayment, and filed with a court in July 2010 under those pretenses. The next month, NECA responded to the suit and attached a copy of a product profit report, which showed sales of $60,000 of the Scut Farkus Boxed Set, which included the action figure with other characters, and $20,000 in sales of the action figure packaged independently. However, the fact that Ward hadn’t received his share of royalties for the $80,000 in sales generated by his action figure soon became secondary to another line item on the report.

  The sum of $755,533.67 virtually leaped off the sheet of paper, taking them both by surprise. The six-figure amount was associated with the sales of an officially licensed Christmas Story board game that was distributed by NECA, approved by Warner Bros., and that bore Ward’s license, yet he was never paid for it and this was the first he was hearing about it.

  Zack Ward © David Monseur

  “After they gave us the product profit report with the board game, I went to the internet to look it up and Zack’s face was not on it,” Newman says. “So we were completely confused.”

  The two considered the board game’s inclusion on the report to be an error, until Ward went to Cleveland that following November for an event at the Christmas Story House.

  “One of the people I was working with told me I was on the board game,” Ward explains. “I said, ‘No, I’m not. We looked it up,’ and they said, ‘I have one over here. You’re on it! The version you’re saying you’re not on is a brand-new version that just came out. There was an old version that you were on.’”

  As if on cue, minutes later, a young fan of the film approached Ward to express his disappointment that “the game sucked so much.” Ward apologized, but believed that the child’s opinion was probably an anomaly. “It’s a board game,” he thought. “How sucky can a board game possibly be?” But as of the time the lawsuit was entered against NECA, twenty-five out of the thirty-six customer reviews of the board game on Amazon.com rated the game one out of five stars. An additional eight people gave the game two stars. The reviews read almost as if the disgruntled customers were in a competition to come up with the most damning review. If such a contest existed, these would certainly be among the finalists:

  “This has to be the worst board game ever produced,” one reviewer wrote. “If I could give it zero stars, I would.”

  “The designer must have been a mental patient,” wrote another. “Whomever [sic] controls the rights to A Christmas Story should be genuinely peeved at this blight on their brand name and should never have allowed this unplayable mess to hit the stores.”

  “After slogging through the first two pages of incomprehensible directions, I actually thought the game was a joke, like an April Fool’s Day prank,” another reviewer ranted. “It was not. Luckily, we purchased the game for $1 at a garage sale. We overpaid.”

  Newman and Ward went into investigative mode. They found and purchased the 2006 and 2008 versions of the game, on which the actor appeared. Of course, this posed a significant legal problem because not only had Ward not been informed about the game, but he was also not given a
chance to approve the use of his likeness. The reality of the situation was becoming crystal clear.

  “That meant that when Joel called through Scott Schwartz to contact me about the Scut Farkus action figure, not only had he built and made the board game,” Ward says, “but he had already shipped and sold thousands of units, which means that when Joel talked to me on the phone he lied. He completely fucking lied.”

  This conclusion was infuriating, but also confusing. If Warner Bros. had been so cautious about not using the actor’s likeness on any merchandise over the last several years, then why did they allow NECA to use Ward’s photograph on the board game? Once again, Ward and Newman sprang into action to try and figure out what went awry on the way to the toy store.

  “It turned out that Joel shipped the board game in August 2006,” Newman explains. “The evidence shows that Warner Bros. didn’t even see the prototype until October of that year.” The estimated number of board games that were shipped before the film company even saw a prototype totals 10,000 units, a staggering number. Warner Bros. didn’t know that any copies had actually been sold when they received the sample, but an error jumped out at the suits in the office immediately upon the game’s arrival.

  “Sample needs revisions,” the email back to Weinshanker stated. “Please omit the Scut Farcus [sic] pieces (or provide proof that you have secured the rights to use his likeness). We are not allowed to licensee [sic] [Zack Ward’s] likeness.”

  Of course, this was impossible because thousands of copies had already been sold. Luckily for Weinshanker, he was able to get in contact with Ward and have him sign off on a contract under the pretenses that it extended solely to a Scut Farkus action figure, while in reality, that contract also provided NECA the cover they needed to continue selling the board game.

  “He believed that he could fraudulently get me to sign something not knowing jack-dick and he’d never be held accountable for it because who the fuck am I,” Ward says. “I am apparently nobody and he can come in and steal my likeness, take my face, take my life’s work, and then walk away because he has a very rich company and I’m not a rich guy. That’s exactly what he did.”

  As if enough salt hadn’t been rubbed in Ward’s wound, after the lawsuit was filed against NECA, the company provided Newman with quarterly reports for sales of the board game that showed that all purchases were within the jurisdiction of their contract with the actor. These also included gross inaccuracies. After consulting with Warner Bros., it became clear that NECA had retroactively fabricated quarterly reports that reflected the same total number of units sold, but not in the same time period.

  For example, it was reported to Warner Bros. that over $75,000 was generated in sales from the board game from July 1, 2006, through September 30, 2006, but no sales were reported to Ward for that same time period. Newman and Ward maintain that this was to give the impression that they had not actually begun selling the board game until Ward had signed off on his contract (which he thought was exclusively for the production of the action figure).

  At this point, Newman and Ward believed that they had unearthed the last bit of deception from Weinshanker. That is, until they discovered that NECA had also released a 2009 calendar with the actor’s picture. Ward alleges that this was, once again, not only in violation of his ability to retain his merchandising rights, but also a direct refusal to comply with a New Jersey judge’s order that the company inform the court of all products they released with the actor’s face on it. “It was like fraud on top of fraud on top of fraud,” Newman says.

  Because of a New Jersey Supreme Court case that allows for lawsuits against the concealment of evidence, a separate lawsuit was filed in August 2012 on Ward’s behalf against Weinshanker, his lawyers, and NECA for failing to disclose the calendar despite the order.

  For their part, the toy company maintained that the actor’s lawsuit was filed too long after the incident occurred. Furthermore, NECA lawyers stated in court that the profits Ward claimed the company made were grossly overstated. For these reasons, the defendants requested in October 2012 that the suit be dropped, which was denied by a judge. The two parties had a mediation session a month later.

  “The parties reached agreement on terms of settlement,” said Kent Raygor, the attorney for NECA and Weinshanker, following the mediation. However, Newman left the sit-down feeling there were still “major issues” to resolve, among them Ward’s insistence that the terms of their agreement not remain confidential.

  Leading up to his court date, which was scheduled for January 2013, Ward remained hopeful that he would come out victorious. “There’s a real villain in this situation,” he says. “There’s someone who thought he was above the law because they have a lot of money. I don’t know how you feel about that, but I’m not okay with that.”

  “The page on NECA’s calendar that uses Zack’s image has the following quote,” Newman states. “It says, ‘In our world, you are either a bully, a toady, or one of the nameless rabble of victims.’ It’s ironic because Zack went from being the bully [in the movie] to NECA being the bully.”

  “I just don’t want to be a nameless victim,” Ward interjects. Even though the NECA suit also includes misappropriating the actor’s image, Newman explains that this case is significantly different than Ward v Warner Bros. “[In the Warner Bros. case,] it was supposed to be the Scut Farkus character, but there were questions as to whether it looked like Zack or not,” he says. “It wasn’t like a photograph. It’s hard to argue that a photograph doesn’t look like you.”

  However, despite how much Ward was looking forward to his day in court, it never came. On December 22, 2012, just weeks before the actor had the opportunity for the vindication he hoped for, Newman reached a settlement with Kent Raygor, NECA’s attorney. The details of the settlement remain confidential, but that didn’t stop the company’s lawyer from sharing his opinion of the case to ABC News in the days leading up to Christmas.

  © St. Catharines Museum

  “During the course of the litigation, NECA admitted it owed Ward some back royalties based on other Scut Farkus uses in an action figure, and had always offered to pay those to Ward,” Raygor said. But, according to the attorney, Ward spent months being unwilling to take yes for an answer when it came to accepting the payment the company conceded he deserved.

  “This has been a long, exceedingly silly case by a plaintiff who had a bit role as a 13-year-old in a well-known 1983 film,” Raygor continued. “Ward sued NECA over a barely visible 3/8" x 3/8" blurred image of part of the Scut Farkus character’s face on the back of a 2006 A Christmas Story board game. In that image, the Scut Farkus character is hardly recognizable. Any argument that a consumer would have bought that game just because of that tiny image on the back of the box was just wishful thinking.”

  Ward’s past problems regarding his merchandising rights are unusual. Nowadays, movie studios are unlikely to miss or permit a “fuck-up in the contract” that would allow for so many gray areas. Of course, Ward’s issues are not only the result of the contractual error; they are also because such a long period of time passed without any Christmas Story merchandising. In the twenty years that lapsed between the release of A Christmas Story and merchandise being produced, ownership of the film exchanged hands three times and the movie became one of the most popular holiday movies ever. Then the third-party companies descended like seagulls on an abandoned bag of potato chips at the beach.

  Of course, it’s partially because of the connections that fans make to the merchandise that has enabled the film to grow in popularity. Without the T-shirts, bobbleheads, and full-sized replica leg lamps, would A Christmas Story be as popular as it is today? Probably not.

  As suggested by Petrella’s time at the Christmas Story House, in addition to the merchandising, public appearances by the actors of the film are another significant way that the movie remains in the public eye bey
ond the holiday season. While at these appearances, several members of the film’s cast have raised money for charity, been photographed with fans, and sold autographed pictures.

  However, as much as the actors enjoy these appearances, they can also serve as harsh reminders that fans are often more interested in merchandise than the actors themselves. “When I was at the museum, I’d sell autographed pictures to people if they wanted one,” Petrella recalls. “There was this one guy who looked like he was maybe in his early fifties and he was asking about pictures.”

  “Can I take a picture?” the guy asked.

  “They’re not free, sir. They cost $10. Do you want one? I’ll sign it for you.”

  The man pursed his lips, shook his head, and pointed his finger at the actor.

  “How dare you? How dare you,” he shouted. “How dare you try to take advantage of us? That’s just too much; I’m not going to pay for that!”

  As the man stormed off, his wife rushed over to the actor to try to make amends. “I just want to let you know that my husband here, he’s bought everything that this movie has,” she explained. “He’s bought all the glasses, the T-shirts, everything!”

  The irony wasn’t lost on the actor. The same guy who bristled at paying $10 for a signature because he deemed it too expensive would happily spend five times that amount for a Christmas Story throw blanket. Petrella took to his public Facebook page to voice his frustrations with the incident.

  “Of course, I got in big trouble from everybody by posting that,” he says. “For one thing, Brian Jones, who owns the house, called me up and reamed me for that. I tried to tell him it had nothing to do with him; it’s just that any time one of us actors wants to do something to make money off this film, people call us assholes. But anybody else who has an idea to do something with this film and make money off it, everybody stands up and fucking applauds them!”