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

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 Deadline.com’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.

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

In the latest salvo in The Butler title standoff, The Weinstein Company's litigator David Boies has responded to Warner Bros. by threatening a restraining order and continuing to press an antitrust violation claim.

"[N]one of this controversy would have occurred if Warner Bros. had not repudiated its representations and agreements not to object to 'The Butler' in a transparent attempt to hold a major civil rights film hostage to extort unrelated concessions from TWC," Boies wrote in an e-mail dated July 5 and obtained by The Hollywood Reporter.

The public battle between the studios erupted last week. The MPAA's Title Registry Bureau ruled in an arbitration on Tuesday that TWC couldn't use the title, The Butler, for the 2013 release because a 1916 short in the Warner Bros. Library shares the same name.

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The move followed months of back-and-forth between the two studios after TWC failed to "clear" the title before moving forward with its release plan for the White House-set drama directed by Lee Daniels. The film is scheduled to hit theaters August 16.

Boies sent letters to Warner Bros. litigator John Spiegel and the MPAA threatening litigation over the ruling. Daniels personally appealed to Warners CEO Kevin Tsujihara in a public letter claiming that changing the title "would most certainly hurt the film by limiting the number of people who would ultimately see this important story."

The film stars Forest Whitaker as a longtime White House butler and also features performances by Robin Williams, Oprah Winfrey, John Cusack and Liev Schreiber.

TWC is appealing the arbitrator's ruling, though as THR has noted, it could face an uphill battle. Its antitrust argument -- that the arbitrator's ruling restricts competition since the 1916 film "has not been shown in theaters, television, DVDs, or in any other way for almost a century," in Boies words -- also might be problematic.

The full text of Boies' latest letter to Spiegel is below:

Dear Mr. Spiegel:

Although you do not directly respond to my inquiry, I assume that you are the counsel who should be notified in the event it is necessary to seek a TRO.

I will not try to respond to your version of the facts in part because it is so inaccurate and incomplete that such an exercise would be extensive, and in part because your letter appears to be a press release masquerading as a lawyer's letter. However, I briefly note your lack of response to three critical points.

First, if an anticompetitive "permanent" allocation of titles (and words used in titles) among competitors is a product of a horizontal agreement, that is an antitrust violation, not a defense.

Second, the purported order that TWC not use titles that it has already cleared pursuant to the MPAA's own rules and procedures demonstrates that it is Warner Bros. and the MPAA that are at odds with established custom, practice, and procedure.

Third, none of this controversy would have occurred if Warner Bros. had not repudiated its representations and agreements not to object to "The Butler" in a transparent attempt to hold a major civil rights film hostage to extort unrelated concessions from TWC.

'The Butler' Battle: Director Lee Daniels Pleads His Case To Warner Bros.' Kevin Tsujihara

Further ratcheting up the Weinstein Company’s campaign to force Warner Bros. into granting it permission to call its upcoming Lee Daniels’ film The Butler, the director has sent a letter to Warner Bros. Entertainment’s new CEO Kevin Tsujihara in which Daniels argues that if TWC has to change the movie’s title “it will most certainly hurt the film.”

On Tuesday following an arbitration, the MPAA’s Title Registry Bureau ruled that TWC could not use the title because it’s also the name of a pre-existing 1916 short film that now resides in the Warner Bros. library.

In response, attorney David Boies, who is representing TWC in the dispute, fired off letters to the MPAA and Warners earlier Wednesday threatening litigation.

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Daniels’ letter takes a different tack, pleading his case by describing 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 until he retired as head butler, as a film he made “so I could show my kids, my family and my country some of the injustices and victories African-Americans and their families have experienced in the fight for Civil Rights.” The movie, he continued, “tells the story of the Civil Rights Movement from the sit-ins and the Freedom Riders, to Selma, Martin Luther King’s assassination and the election of the first Black president.”

Daniels wrote that while working on the film “is the proudest moment of my professional career, I am heartbroken as I write this letter.” He explained that the modestly budgeted movie is not intended to be a blockbuster and “if we were to change the title a mere six weeks before we open, it would most certainly hurt the film by limiting the number of people who would ultimately see this important story.”

Offering to screen the movie for Tsujihara, Daniels said, “I truly believe that once you watch it, you would not want to cause this film any harm.”

Daniels concluded the letter by adding he has the support of its stars Whitaker, Oprah Winfrey, Cuba Gooding, Jr., and David Oyelowo as well as screenwriter Danny Strong. Copies also were sent to Warners executives Sue Kroll, Greg Silverman and Dan Fellman.

Few Options for Weinstein Co. in Wake of MPAA 'Butler' Ruling (Analysis)

Forest Whitaker on the set of 'The Butler'
Tuesday’s ruling in an MPAA title registration arbitration puts the Weinstein Company in a quandary. As The Hollywood Reporter reported, the arbitrators held that the Weinstein Company could not use the title “The Butler” on its upcoming film because that previously served as the title of a 1916 short film that now belongs to the Warner Bros. library.

In response, the Weinstein Company issued a statement from veteran Supreme Court litigator David Boies that said, “The suggestion that there is a danger of confusion between TWC’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.”

We don’t know if Boies is quoting from the arbitration ruling – those documents aren’t public and neither Warner Bros. nor the Weinstein Company would supply a copy to THR – but “danger of confusion” isn’t the test under the MPAA system: identicality is (or, in some cases, similarity). Here, the titles are identical. Protection is generally perpetual; in some cases, the duration is only four years, but that doesn’t seem to be at issue here. The TRB does have an appeal process, but the rules for challenged titles are the same on appeal as in the initial process.

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None of that bodes well for the Weinstein Company. But what about Boies’ comment that the award restricts competition? That’s an antitrust argument, and at first glance it has some allure. Surely federal antitrust law – passed by Congress and enforced by agencies and judges – places some limits on what a mere industry association can do?

Actually, not so much, it seems. That’s because another law, the Federal Arbitration Act, requires judges to defer to arbitration agreements, such as the agreement that companies agree to when they sign up with the MPAA’s Title Registration Bureau (TRB). Says the 1925 statute, “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

In recent decades, the Supreme Court has interpreted the FAA expansively, with the conservative majority on the Court using the statute to allow large companies to divert claims out of the court system and into arbitration. In many instances, that’s favored companies at the expense of consumers and employees, since it keep cases out of the hands of sympathetic juries, and frequently bars class actions as well.

It turns out that the Court’s latest case in this line of precedent was decided less than two weeks ago – and it involved an antitrust claim.

In the case, American Express Co. v. Italian Colors Restaurant, the plaintiff restaurant alleged that “American Express used its monopoly power in the market for charge cards to force merchants to accept credit cards at rates approximately 30% higher than the fees for competing credit cards.” The restaurant asserted that this was a violation of a key antitrust law, the Sherman Act, and brought a class action.

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Citing the FAA, Amex sought to enforce the arbitration clause in its merchant agreements, which also included a prohibition on class actions in arbitration. The restaurant countered that enforcing this prohibition would effectively strip it of its rights, because the case would be too expensive to bring on an individual, plaintiff by plaintiff basis. Expert witness fees alone would be in the hundreds of thousands of dollars at a minimum, whereas the most the restaurant stood to recover if it won a non-class action case was about $38,000.

By a 5-3 vote (with one Justice not participating), the Supreme Court turned away the restaurant’s objection. As a result of the FAA, said Justice Scalia for the majority, “courts must ‘rigorously enforce’ arbitration agreements according to their terms. . . . That holds true for claims that allege a violation of a federal statute, unless the FAA’s mandate has been ‘overridden by a contrary congressional command.’”

The decision then found no such contrary command in the antitrust laws as regarding class actions. Regarding the underlying substantive issue – the alleged antitrust violation – the decision said, “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.”

That may give Boies an opening, because the TRB rules don’t provide a mechanism for challenging the system itself on antitrust grounds (or any grounds at all). But the Supreme Court decision includes a dissent (by Justice Kagan) that, ironically, works against such an argument: “If the arbitration clause is enforceable, Amex has insulated itself from antitrust liability – even if it has in fact violated the law.”

STORY: The Butler' Battle Escalates Weinstein Co. Hints Lawsuit, Raises Antitrust Warning

In other words, even an arbitration clause that snuffs out an antitrust claim will be upheld by the conservative majority on the Court.

As THR reported, Boies also argued in a letter to Warner Bros. on Wednesday that Warners had agreed to allow the Weinstein Company to use the title “in return for certain contributions that TWC agreed to make.” A source familiar with the dispute rejects the notion that there was any deal. That’s the sort of he-said she-said that a court is likely to say the Weinstein Company should have raised with the arbitrator. Perhaps it did so – in which case it evidently lost the argument. A court is unlikely to revisit the issue.

That all would seem to make a suit by the Weinstein Company against Warners a long shot at best. What about suing the MPAA? Boies wrote them on Wednesday too, saying “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.”

But there are problems here. The TRB rules include a waiver of damages against the MPAA, TRB and related entities. That doesn’t preclude seeking an injunction against the rules, of course.

Even an injunction seems unlikely, though, because the Weinstein Company voluntarily and knowingly agreed to the arbitration process when it signed onto the TRB. And the Weinstein Company received a benefit – its own titles are protected from reuse by other TRB signatories and by MPAA members.

In essence, a suit against the MPAA is an attempt to make an end run around an unfavorable arbitration award. That’s exactly the sort of thing courts disfavor, as the 9th Circuit (the federal Court of Appeals that includes California) pointed out in a case involving a challenge to WGA credit arbitration, Marino v. Writers Guild of America.

Stepping back for a moment, it’s not even clear that an antitrust claim would have legs. After all, the arbitration award doesn’t prohibit the Weinstein Company from releasing its film; it just has to do so under a different name. That’s a restriction, of course, but intellectual property laws – and IP-related contracts – always impose restrictions. They provide monopolies of various sorts to the IP owner.

Boies and the Weinstein Company may have arguments to counter this point, but whether they’ll be able to get a court to even consider those arguments seems like a long shot. Arbitration may sometimes be a bed of nails, but under Supreme Court precedent, if those are the accommodations you agreed to, the courts won’t provide a mattress later.

'The Butler' Battle Escalates: Weinstein Co. Hints Lawsuit, Raises Antitrust Warning

An image from Lee Daniels' 'The Butler'
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 Registry 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.

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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 Warner Bros' 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."

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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 can not use any version of the worlds '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 stand-off. 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.