'The Butler' Title Fight: Harvey Weinstein Loses to Warner Bros., Enlists David Boies

The Butler one sheet - P 2013

The MPAA's decision in favor of the 1916 Warners title draws a statement from the power lawyer, fresh from a Supreme Court win over Prop 8: "The award has no purpose except to restrict competition."

Harvey Weinstein is preparing to go to battle once again with the Motion Picture Association of America. But this time, instead of a ratings issue, the battle is over his right to use the title The Butler on Lee Daniels' new film about a White House butler. To buttress his case, Weinstein has enlisted high-powered attorney David Boies, who most recently prevailed in a Supreme Court challenge to California's gay marriage ban, Proposition 8.

An MPAA title registration bureau arbitration ruled Tuesday that The Weinstein Co. could not use the title The Butler on its upcoming film, due to be released Aug. 16, because that previously served as the title of a 1916 short film that now belongs to the Warner Bros. library. In response, The Weinstein Co. issued a statement from Boies that said, "The suggestion that there is a danger of confusion between The Weinstein Co.’s 2013 feature movie and a 1917 [sic] short that has not been shown in theaters, television, DVDs, or in any other way for almost a century makes no sense. The award has no purpose except to restrict competition and is contrary to public policy."

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While the titles of works of art cannot be copyrighted (nor, in general, trademarked), the MPAA maintains the Title Registration Bureau, which is a voluntary central registration entity for titles of movies intended for U.S. theatrical distribution to prevent public confusion over films with similar titles. In order to register titles, companies subscribe to the registry and are bound by the bureau's rules, which prescribe procedures for registering titles and handling any related disputes.

Usually, when one company wants to use a title to which another studio already has a claim, the two engage in some behind-the-scenes horse-trading, but that didn't happen in this case and instead the issue went to arbitration. The arbitration board said that The Weinstein Co. has to change the name of the film immediately, saying "TWC made continuous use of the unregistered title The Butler in willful violation of the TRB rules."

According to one source, Warners didn't make any case at the arbitration that it intended to use the title The Butler -- or that it was actively in use. Instead, it chose to stand on precedent, arguing that The Weinstein Co., which is a signatory to the TRB though not a member of the MPAA, hadn't followed the established rules.

The ruling creates an immediate problem for The Weinstein Co., which has already begun promoting the film, which stars Forest Whitaker and is based on the true story of Eugene Allen, who worked at the White House for 34 years, retiring as head butler in 1986. The film, which is being positioned as a potential awards contender, also stars Oprah Winfrey, Robin Williams, Jane Fonda, Liev Schreiber and John Cusack.