The 'Butler' Fight: Harvey Weinstein's Mixed Track Record in His MPAA Feuds (Analysis)

"The Butler"

High-powered lawyers and sweeping rhetoric are all part of a game plan that has brought the mogul some victories -- and some losses -- in the past.

When it comes to battling the MPAA, Harvey Weinstein’s default position is to go into all-out attack mode. While other movie companies usually sort out their differences with the Motion Picture Association of America behind the scenes, Weinstein stages major public relations campaigns like the one he is currently conducting to attempt to win the right to call Lee Daniels’ upcoming movie The Butler.

But do they actually work?

Typically, Weinstein, one of the toughest moguls in Hollywood, portrays himself as the scrappy underdog standing up for some higher principle. While the current dispute revolves around whether The Weinstein Co. and Warner Bros. have played by the rules of the MPAA’s Title Registration Bureau, to which both companies subscribe, Weinstein is making every effort to turn the business dispute between movie companies into a major civil rights fight. “I’ve gone through this all my life,” Weinstein said Tuesday morning during an appearance on CBS This Morning. “My dad taught me to fight injustice. This is unjust.”

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Over the years, Weinstein’s scorched-earth tactics have resulted in a mixed record of success. Sometimes he wins, managing to overturn NC-17 ratings in favor of less restrictive R ratings on movies ranging from 1994’s Clerks to 2010’s Blue Valentine. And sometimes he loses, failing to convince the ratings appeals board to downgrade its original NC-17 designations on films like 1995’s Kids or soften the R rating it gave to 2010’s The King’s Speech and 2012’s Bully.

Win or lose, though, the very public disputes almost always result in a torrent of publicity, which Weinstein’s critics say is his real objective. (Among Weinstein and the show’s hosts, the CBS Morning News appearance included three reminders that The Butler is scheduled for release Aug. 16, while also including a clip from the film.) But all that free press doesn’t necessarily translate into big bucks at the box office.

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Director Kevin Smith’s Clerks, for example, grossed $3.2 million domestically back in 1994, and that meant the low-budget, black-and-white indie was a solid success but not a runaway phenomenon. Blue Valentine, despite earning an Oscar nomination for its star Michelle Williams, grossed just $12.4 million worldwide. On the other hand, Michael Moore’s 2004 documentary Fahrenheit 9/11, which unsuccessfully appealed an R rating "for violent and disturbing images," went on to become the top grossing documentary of all time, collecting $222 million worldwide.

Sometimes, Weinstein has even used a ratings dispute as part of a movie’s awards campaign. While going head-to-head with the MPAA over Fahrenheit 9/11’s rating, the expert campaigner also took out ads inviting Academy members to screenings with the come-on, “Before the MPAA makes their decision, MAKE YOURS.”

Most of Weinstein’s MPAA battles have revolved around the Classification & Ratings Administration. But he’s also had previous run-ins with the Title Registration Bureau as well.

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

In 1995, Warner Bros. objected when Weinstein sought to release Michael Radford’s Italian-language film stateside under the title The Postman, a title Warners had registered for an upcoming  Kevin Costner movie of its own. Weinstein backed off, releasing the movie as Il Postino (The Postman). The following year, Sony objected when the Weinstein brothers released Wes Craven’s horror spoof, Scream, because Sony had released a movie called Screamers earlier that year. Despite TRB sanctions, reported at the time to amount to $1,500 per day per screen on which the movie was playing, the Weinsteins stuck to their guns. And Disney, which was then the parent company of the Weinsteins’ Miramax Films, ultimately came to an undisclosed private resolution with Sony.

By now, the Weinstein battle plan is familiar -- and so when the current controversy over The Butler broke into the open last week, insiders at both Warners and the MPAA shook their heads and claimed the dispute was “just Harvey being Harvey.” Both sides, pending an appeal, have dug in. Warners believes it has the MPAA rules on its side, but the Weinstein forces are convinced that they can embarrass Warners and the MPAA into making concessions by arguing that the studio is trying to stand in the way of a racially uplifting film.

As familiar as his tactics have become, there is no underestimating them.

One of Weinstein’s first moves is always to call in high-powered lawyers, although the clashes rarely result in any actual litigation. In the cases of both Clerks and Kids, Weinstein enlisted Alan Dershowitz, famous for defending Claus von Bulow, a case that became the basis for the movie Reversal of Fortune. To appeal an NC-17 rating given a now-obscure 1994 movie called The Advocate, Weinstein drafted the late William Kunstler, who defended the Chicago Seven in the late ‘60s. David Boies, who is representing Weinstein Co. in The Butler case, also, working alongside Hollywood attorney Bert Fields, handled the unsuccessful appeal on The King’s Speech rating. Both Boies and Fields can command hourly fees in excess of $1,000. 

Second, Weinstein and his allies ratchet up the rhetoric. “This rating for The King’s Speech is arbitrary and irrational. In my view, it violates The Weinstein Company’s right to freedom of speech under the state and U.S. constitution. It should strike fear in the heart of every director and producer,” Fields said during The King’s Speech dust-up. Boies has called Warners refusal to grant Weinstein Co. the right to call its movie The Butler “a transparent attempt to hold a major civil rights film hostage to extort unrelated concessions from TWC” -- a charge that Warners called “deeply offensive and untrue.” Weinstein said Tuesday that two Warners executives had asked him to give up his share of profits from The Hobbit movies to settle the matter. (The Weinsteins are entitled to back-end money from the first Hobbit movie and are locked in a dispute with Warners over whether they can share in the proceeds from the second and third installments.) Warners also called that assertion untrue.

But Weinstein -- whether he wins or loses -- generally gets away with such tactics because he usually has the press on his side, especially when he is tilting with the MPAA’s ratings regulations. Historically, the MPAA has often been slow to articulate its rationales, which to much of the media often look overly restrictive, penalizing language and sexual imagery while letting violence run wild.

Plus, Weinstein also has cultivated various media outlets over the years to be sure his views will have a ready platform. Pro-Weinstein items have often appeared on Page Six of the New York Post. And at May’s Cannes Film Festival, he enlisted’s Michael Fleming and Pete Hammond to moderate buyer presentations for upcoming Weinstein Co. movies. When Weinstein was ready to take The Butler dispute public, his camp leaked to Fleming the private letters to Warners and the MPAA.

But as heated as the battles often become, Weinstein also has shown himself to be a pragmatic businessman once the dust settles. In a number of cases when the MPAA has ruled against him on ratings, he’s simply gotten out the scissors for which he is famous and edited down the films to get a less restrictive rating.

When the 2012 documentary Bully got stuck with an R rating for six uses of the F-word, Weinstein Co. agreed to edit out three instances of the word and the MPAA then agreed to rerate it PG-13. And in the case of the Oscar-winning The King’s Speech, after the movie had played 12 weeks in theaters, during which it earned the bulk of its business, Weinstein decided to mute two uses of the F-word, and the MPAA agreed to a new PG-13 rating.