July 03, 2013 3:09pm PT by Eriq Gardner
'The Butler' Battle Escalates: Weinstein Co. Hints Lawsuit, Raises Antitrust Warning
The battle over whether Harvey Weinstein can call Lee Daniels' upcoming White House movie The Butler escalated Wednesday as The Weinstein Company's superstar attorney David Boies fired off letters to Warner Bros. and the MPAA threatening litigation.
In an arbitration, the MPAA's Title Registration Bureau ruled Tuesday that TWC could not use the title because it's also the name of a preexisting 1916 short film that now resides in the Warner Bros. library.
As a signatory to the MPAA's Title Registration Bureau, Weinstein is bound by the arbitrator's ruling. The movie mogul might not like the fact that an arbitrator gave Warners the rights to The Butler, but judges are loath to do anything but confirm arbitration awards.
With the success of an appeal looking unlikely, and with TWC facing $25,000 worth of daily fines if it continues to advertise the film as The Butler, Boies is now speaking about a lawsuit. Possible claims could include extortion, misrepresentation and antitrust violations.
The letter to Warners' general counsel hints at some of the discussions that preceded the title dispute.
"I am informed that Warner Bros. represented to, and agreed with, TWC that TWC would be permitted without objection by Warner Bros. to use the title 'The Butler' in return for certain contributions that TWC agreed to make," writes Boies.
According to TWC COO David Glasser, "We had the title of The Butler and we had spoken with Warners along the way. Our head of distribution and their head of distribution had an agreement. But then we became involved with another piece of business with Warners, and suddenly we were told there was a conflict, and so we went to arbitration." He would not comment on what other business dealings had been taking place.
Other sources paint a different picture, claiming that TWC began using the title in September 2012 and attempted to register it with the MPAA in November, but the request was declined. Annoyed that TWC was moving forward with the title without the necessary clearances, Warners told TWC it couldn't use the title in March and then sent a cease-and-desist letter in June, all of which led to the arbitration. As for the suggestion that an earlier agreement had been reached, one sources familiar with the dispute says, "There was no deal. That is false."
In his letter, Boies continues, "I am further informed that after TWC had relied on these representations and agreement, Warner Bros. repudiated those representations and agreement and sought, in concert with the MPAA, to prevent TWC from using its title."
Asked whether in order to resolve the matter quickly, TWC would consider renaming the film, which stars Forest Whitaker and is based on the true story of Eugene Allen, who spent 34 years working at the White House, Glasser said, "I have Lee Daniels' The Butler registered. I have The White House Butler registered. But what is so insane is that we've been told we cannot use any version of the words 'The Butler.' That part blows our minds."
Boies' second letter to the MPAA is even more direct about the potential antitrust claims.
"To the extent that the MPAA in concert with its members seeks to 'permanently protect' titles where there is no plausible claim of possible confusion, and no claim of actual damages, such an attempt would be a naked restraint on trade in violation of the anti-trust laws," writes Boies.
The MPAA did not immediately respond to requests for comment. Of course, the MPAA's arbitration system doesn't use the same standards set up in trademark law to measure the likelihood of consumer confusion about the source of a mark. If it did, the outcome might have ended up differently. Now the question is whether The Weinstein Co. can allege with specificity enough funny business before the initiation of the arbitration claim.
In the meantime, the two companies are locked into a public relations standoff. Warner Bros. risks looking as if its playing the spoiler, while Weinstein runs the risk of looking like the same man who has repeatedly cried foul over movie ratings.