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December 20, 2004

Todd McFarlane’s Publishing Company Files For Chapter 11 Bankruptcy

In case you missed it, Todd McFarlane Productions filed for bankruptcy (the reorganizing kind) in Arizona on Friday, setting off a bevy of wire stories and the usual comics-realm appropriation of same for rehashing, hit-generating discussion, and general tut-tutting. It's actually a fairly simple story right now, and I think the better one will come a bit later. Until then, this only slightly laborious rundown should suffice:

Because the list of creditors includes a $15 million amount owed to former hockey player Tony Twist and another Todd McFarlane company, McFarlane Toys, most believe that this move is intended to manage the Twist liability (and potentially others).

The Twist/McFarlane saga, of which this would then be a significant chapter, is a pretty straightforward legal back and forth. Todd McFarlane introduced a character named "Antonio Twistelli" into his Spawn comic book in 1993. As early as 1994, McFarlane admitted this character was named after NHL tough guy Tony Twist, and repeated this several times over the next several months, including for an article in Wizard in 1996. During this time the character, now sometimes referred to as "Antonio 'Tony Twist' Twistelli," continued to be part of various Spawn promotions and licensing opportunities, a few of which involved hockey, a sport McFarlane enjoys. In 1997 Twist sued, claiming to hear of the character because he had been asked to sign copies of a Spawn comic book featuring Twistelli. Twist won a $24 million decision from a jury in 2000. That decision was overturned on appeal in 2002. A new trial was ordered in 2003. Twist won $15 million from another jury in 2004. And now McFarlane continues to seek an appeal.

The basic issues in Twist/McFarlane seem to be (1) whether McFarlane's intentions are protected by First Amendment rights as they extend to parody or whether this is more of a commercial leveraging of Twist's name and (2) the amount of the damages Twist actually incurred. Number one is more important, as a final Twist victory could lead to a general "chilling effect" on parodies, and leave the matter of whether or not a parody has enough value separate from its commercial potential in the hands of those noted masters of parody, our nation's judges and juries. Number two is what leads us to where we are today.

There is potential for a backlash in a variety of areas.

(1) One might assume a chance McFarlane would now bail from comics publishing, but Image Comics reps claim they will continue to publish Spawn, so it seems there will be no interruption while the publishing company "reorganizes."

(2) Several comic book creators are among those owed money, and it would seem that their place in line indicates they are not likely to see much of it. Lovely news before Christmas, although not at amounts that indicated people have been strung along on promises for a long time beforehand. While one might think this could have an effect on the company's ability to make more comics, it probably won't.

(3) Part of writer Neil Gaiman's still-recent legal win against McFarlane over rights to characters he created during a brief writing stint includes profits to ostensibly derive from the company, potentially making Gaiman another creditor McFarlane is attempting to finesse.

(4) McFarlane may take a general hit as well, across his other companies, in a general bad-publicity way; the perception of a business and its health can be important in securing licensing deals of the kind enjoyed by McFarlane's toy company. McFarlane claims to have been able to spin buying expensive baseball memorabilia into publicity and business deals. It's hard to spin losing a lawsuit.

Two questions I have as the filing itself becomes public and dissected:

(1) At what point did Todd McFarlane Productions start being simply the comics publishing arm? I used to see that as an umbrella term for all the companies, although clearly it's divided the new way on his web site. Is there a different umbrella term now?

(2) Didn't Tony Twist sue all the companies, not just the comics publishing company? The guy practically sued every business involved -- did his legal team finally winnow things down so far as to leave parts of Todd's empire out? One of the widely available court decisions had the people being sued as:
"McFarlane Productions, Inc., TMP International, Inc. (d/b/a/ McFarlane Toys, TMP Apparel, Todd Toys, TMP Entertainment, TMP Cards, TMP Toys, McFarlane Design Group, McFarlane Entertainment, TMP Ventures, and
McFarlane Toys Collector's Club)"

So that's about it on a first look. There's probably something humorous to be said about Todd McFarlane scrambling to deal with the effects of a court case due to a combination of a Wizard article, Spawn fans, his own statements, and someone deciding Spawn is more about commercial positioning then art, but the implications for people who don't have so many companies they can try jettisoning one from the balloon are too terrible to stop and linger on those things for very long.

I should probably run art, but yuck.
posted 8:59 am PST | Permalink

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