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A cautionary tale of film fest dealing

As Lionsgate and the Weinstein Co. await the fate of their dueling lawsuits over the Sundance hit "Push," a portrait of a chaotic, even incestuous set of circumstances is emerging.

New information from court documents and insiders paints a colorful picture that showcases the slipperiness of festival negotiations, the bravado of indie personalities Harvey Weinstein and John Sloss and the unlikely influence of a media kingmaker, Tyler Perry, at the center of it all.

The Weinstein Co. last week filed complaints in New York Supreme Court against the Sloss-run Cinetic, Lionsgate and producer Smokewood Entertainment Group over "Push: Based on the Novel by Sapphire," a triple winner at last month's Sundance Film Festival whose North American rights Lionsgate bought for about $5 million and for which it has received Perry and Oprah Winfrey's blessing.

TWC alleges that Cinetic committed fraud and induced Smokewood to breach its contract by backing out of a deal to sell the film to the Weinsteins and that Lionsgate unlawfully interfered with that deal. TWC also claims that Cinetic fraudulently sold it international rights to "Push" that were controlled elsewhere.

Lionsgate, for its part, denies there was a material agreement between the filmmakers and TWC, and it filed a pre-emptive lawsuit hours before the Weinstein complaint asking a judge to declare it the legal owner of rights to the film.

Significantly, the Weinstein Co. is not seeking rights to "Push" but only monetary damages and other relief, though legal experts said the complaint could be amended to include that claim, which in turn could hold up Lionsgate's release of the film.

This legal scrum, however, only hints at the complex series of events that preceded it.

When director Lee Daniels' gritty inner-city tale debuted Jan. 16 in Park City, it garnered positive interest, which built as distributors saw — and often were disappointed by — other films. As the week wore on, buzz grew for the dramatic tale, and on the closing Saturday of Sundance, hours before "Push" went on to win both the U.S. grand jury and audience prizes, TWC execs arrived in Park City to make their case for the film.

During the next four days, through phone calls on both coasts, the elaborate dance between TWC and Cinetic execs, as well as internal conversations, ensued for the coveted but potentially difficult-to-market title.

There also was talk between the Weinstein Co. and a private investor over partnering on an acquisition, and there were even discussions between TWC and Lionsgate over going halfsies on the project. The companies had partnered on successful movies like "Fahrenheit 9/11" — and a day before the skirmish erupted, Lionsgate senior exec Tom Ortenberg announced he was moving to TWC.

Lionsgate, of course, had been cultivating its own interest. Its buyers liked the film, and perhaps more important, Perry liked the film.

The mini-major is deep in the Perry business, having released a number of the hyphenate's hit films and recently pacting with his nascent 34th Street Films, which is attempting to carve out a name with more prestige fare. Perry wanted the movie.

Things came to a head on Jan. 27 when, depending on whom one believes, the Weinstein Co. and indie heavyweight Cinetic did or did not reach an agreement. An e-mail from TWC's David Glasser accepting filmmakers' terms was sent to Cinetic exec Bart Walker, with follow-ups then requesting paperwork, the last of which came at 2 a.m. the next day. Walker replied in an e-mail that he was "explaining every detail" to his client, the filmmakers, and TWC says Walker's response was a clear indication the parties had reached a deal.

"The critical thing is that (TWC) sent an e-mail saying we've accepted your terms and we've reached an agreement, and when (Cinetic) writes back and says we're explaining the deal to the clients, that's an adoptive admission that a deal exists," said attorney Bert Fields, who with David Boies is repping TWC.

According to Lionsgate, however, the e-mails meant only that Cinetic was bringing a potential deal to the filmmakers. "The material deal terms were not agreed to, and I think it's apparent on the face of their complaint," Lionsgate attorney Patricia Glaser said. "Some of those e-mails are deliberately authored in ways to suggest that there was a contract where indeed there wasn't."

On Jan. 28, TWC execs told Lionsgate they'd made a deal. Lionsgate didn't believe them and sought out and received assurance from Cinetic that the film was still in play. Lionsgate then hammered out its own deal and several days later announced it had acquired North American rights.

Among other things, the rift highlights the legal high-wire that sellers walk at film festivals between encouraging buyer interest and holding out for the best offer. "As a seller, you are often put in a delicate position," one film sales expert said. "You don't want to possibly blow a deal by being a stickler, but you also need to protect yourself from someone coming back and saying there was a deal when nothing was final."

The sued parties have about two more weeks to respond. Until then, the pushing continues. (partialdiff)
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