I never would have expected the legal battle between The Weinstein Company and Warner Bros to get this weird, even though it started off plenty weird to begin with. Warner said the Weinsteins were illegally naming their upcoming ensemble drama The Butler, and the MPAA agreed in an arbitration. TWC hired hotshot Prop 8 lawyer David Boies to defend them, and he called Warner’s blanket claim in title confusion was ludicrous. And now actual facts have come out, via letters between Warner lawyer John W. Spiegel and Boles. And as you might imagine, nothing is as cookie cutter as I already think The Butler itself will be.
The Hollywood Reporter shared Spiegel’s letter, sent July 4 – this guy doesn’t take Independence Day off? – where he deftly and somewhat derisively claims their lawsuit threats are “unproductive and unwarranted,” and calls TWC out for skewing a number of facts, and for having done it on several occasions in the past, “apparently relying on a self-spun 'Weinstein exception' to the rules whenever and wherever those rules do not solely favor TWC.” Dayum, Spiegel!
Along with providing precedents for TWC’s strange behavior when it comes to movie titles – including legal action taken over 1996’s Scream, 1997’s Il Postino (The Postman) and 2007’s Control - Spiegel plainly laid out every situation where TWC could have averted their present situation. The Butler’s promotion began two months before they tried to register the title, and when that title was declared ineligible in November 2012, they continued to use it for the next four months. This is when they attempted to get Warner to grant them a waiver to use the title, which was declined. And as we all know, they continued to use the title even after that.
A very interesting detail to come from this was that TWC’s attempted registration of Lee Daniels’ The Butler was actually accepted by the MPAA and drew no ire from Warner, yet TWC chose to brush aside those results and continue without the director’s name attached.
As well, the background behind the illegality lies in the MPAA’s Title Registration Bureau (TRB), which allows subscribers to submit up to 500 titles as “Permanent Original Releases,” and the 1916 short film The Butler was added to Warner’s list in 2010.
And as if all these facts, assuming these are all facts, weren’t enough, Spiegel brings up “the fact that TWC is now using a campaign of misinformation about those rules and procedures to gin up publicity for the film is not lost on anyone.” I might have thought Oprah’s presence was the publicity apex, but apparently causing a stir over a film title takes it.
While appealing the arbitration, TWC has been losing $25,000 a day, which sounds outlandish to anyone whose yearly salary matches that number, though I’m sure Boies’ presence is costing just as much if not more. Speaking of Boies, he responded a day later, with a lot less…everything, although he does add a restraining order to the antitrust lawsuit threats.
“First, if an anticompetitive "permanent" allocation of titles (and words used in titles) among competitors is a product of a horizontal agreement, that is an antitrust violation, not a defense,” Boies writes after saying Spiegel’s letter appeared to be “a press release masquerading as a lawyer’s letter.” He also holds fast to the notion that Warner Bros is only being strict about this particular title usage over an undisclosed project that the two companies were also disputing, and that Warner brought The Butler up after months of personal agreements to use as leverage in that case. In fact, he calls it “a transparent attempt to hold a major civil rights film hostage to extort unrelated concessions from TWC.”
I don’t know if it’s just the language or the points made or if many of the facts are still out of our hands, but Boies sounds kind of like a spurned partner in a relationship, backlashing rather than relating facts.
My Majick Ate Bawl (spelled that way for legal reasons) tells me that this case still has a few stones left to unturn, and there’s a footnote that states this film will do the same amount of business no matter what it ends up changing its name to. The trailer can be seen below.