How 'Push' came to shove
The story of a Sundance negotiation gone wildAs 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 involvement of a media powerhouse, 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-financier Smokewood Entertainment Group over "Push: Based on the Novel by Sapphire," a triple winner at January's Sundance Film Festival whose North American rights Lionsgate bought for about $5 million and for which it has received both Perry's and Oprah Winfrey's blessing.
In three separate complaints, TWC alleges fraud and breach of contract on Cinetic's part because it says the sales agent promised to sell TWC domestic rights to the pic but did not follow through and also claims Cinetic caused Smokewood to breach its contract on the deal. The New York banner also claims that Lionsgate interfered with what TWC says was its pact for the pic. And it alleges that Cinetic attempted to sell the company international rights that it didn't control.
Lionsgate denies there was ever an agreement between the filmmakers and TWC -- which, if true, would undermine TWC's claims -- and last week filed a pre-emptive lawsuit asking a judge to declare Lionsgate the film's legal owner.
Significantly, the Weinstein Co. is not seeking any rights to "Push" but only monetary damages, though legal experts said the complaint could be changed to include that claim, which in turn could hold up Lionsgate's release of the film.
The legal filings, however, only hint at the dramatic series of events that preceded the high-profile tussle.
When director Lee Daniels' gritty inner-city tale debuted Jan. 16 in Park City, it garnered positive interest, which then built as distributors saw (and sometimes were disappointed by) other films. As the week wore on, buzz for the dramatic tale grew, and suitors began wooing the filmmakers.
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 a series of meetings and phone calls, the elaborate dance between TWC and Cinetic execs ensued in which various proposals were floated.
There also was talk between the Weinstein Co. and a private investor regarding a potential partnership 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," a collaboration that, coincidentally, resulted in Lionsgate senior exec Tom Ortenberg announcing he was moving to TWC just one day before the skirmish erupted.
Lionsgate had been one of the distribs that liked the film. Perhaps even 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 banner, which is attempting to carve out a more prestige-oriented niche.
The exact timing of Perry's interest is unclear. What is known is that, for TWC, things came to a head Jan. 27, when, depending on whom you believe, the Weinstein Co. and indie heavyweight Cinetic may or may not have reached an agreement.
On the morning of Jan. 27, Cinetic and TWC reps sat down to breakfast, with Cinetic offering a proposal that included specifics like distribution fees and boxoffice and awards incentives. The two sides talked by phone, and that evening an e-mail from TWC's David Glasser accepting the 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 did not send paperwork and replied by e-mail that he was "explaining every detail" to his client, the filmmakers.
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-mail meant only that Cinetic was bringing the offer 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 five days later announced it had acquired North American rights to the picture, with Perry and Winfrey on board. Two days later, the lawsuits flew.
The distributor jockeying -- and legal wrangling that followed -- recalls other festival scrums. In 2005, Searchlight and Par Classics famously tangled over rights to Jason Retiman's Toronto Film Festival sensation "Thank You for Smoking" after both distribs laid claim to the pic. Searchlight wound up with rights. It even evokes further-flung cases, such as the notorious Kim Basinger "Boxing Helena" incident, in which the actress was held liable for an oral agreement she made to star in the 1993 film.
And on the festval front, it also highlights sellers' high-wire act 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.