'The Butler' Fight: David Boies Claims WB Extortion in New Letter

10:07 AM PST 07/07/2013 by Erik Hayden
"The Butler"

The Weinstein Company's attorney writes that Warner Bros. is trying to "hold a major civil rights film hostage to extort unrelated concessions."

In the latest salvo in The Butler title standoff, The Weinstein Company's litigator David Boies has responded to Warner Bros. by threatening a restraining order and continuing to press an antitrust violation claim.

"[N]one of this controversy would have occurred if Warner Bros. had not repudiated its representations and agreements not to object to 'The Butler' in a transparent attempt to hold a major civil rights film hostage to extort unrelated concessions from TWC," Boies wrote in an e-mail dated July 5 and obtained by The Hollywood Reporter.

The public battle between the studios erupted last week. The MPAA's Title Registry Bureau ruled in an arbitration on Tuesday that TWC couldn't use the title, The Butler, for the 2013 release because a 1916 short in the Warner Bros. Library shares the same name.

ANALYSIS: Few Options for Weinstein Co. in Wake of MPAA 'Butler' Ruling 

The move followed months of back-and-forth between the two studios after TWC failed to "clear" the title before moving forward with its release plan for the White House-set drama directed by Lee Daniels. The film is scheduled to hit theaters August 16.

Boies sent letters to Warner Bros. litigator John Spiegel and the MPAA threatening litigation over the ruling. Daniels personally appealed to Warners CEO Kevin Tsujihara in a public letter claiming that changing the title "would most certainly hurt the film by limiting the number of people who would ultimately see this important story."

The film stars Forest Whitaker as a longtime White House butler and also features performances by Robin Williams, Oprah Winfrey, John Cusack and Liev Schreiber.

TWC is appealing the arbitrator's ruling, though as THR has noted, it could face an uphill battle. Its antitrust argument -- that the arbitrator's ruling restricts competition since the 1916 film "has not been shown in theaters, television, DVDs, or in any other way for almost a century," in Boies words -- also might be problematic.

The full text of Boies' latest letter to Spiegel is below:

Dear Mr. Spiegel:

Although you do not directly respond to my inquiry, I assume that you are the counsel who should be notified in the event it is necessary to seek a TRO.

I will not try to respond to your version of the facts in part because it is so inaccurate and incomplete that such an exercise would be extensive, and in part because your letter appears to be a press release masquerading as a lawyer's letter. However, I briefly note your lack of response to three critical points.

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.

Second, the purported order that TWC not use titles that it has already cleared pursuant to the MPAA's own rules and procedures demonstrates that it is Warner Bros. and the MPAA that are at odds with established custom, practice, and procedure.

Third, none of this controversy would have occurred if Warner Bros. had not repudiated its representations and agreements not to object to "The Butler" in a transparent attempt to hold a major civil rights film hostage to extort unrelated concessions from TWC.

Sincerely Yours,

David Boies

Matthew Belloni contributed to this report. 

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