By Anthony Kaufman | Indiewire July 12, 2013 at 11:7AM
With the scandal over The Weinstein Company's battle with Warner Bros. over the title to Lee Daniels’ “The Butler” making headlines left and right, there are many details that need to be sorted through to understand the whole story. As a resolution to this drama is expected soon, here’s a rundown of everything you need to know for now.
Why Is This Even Happening?
Title disputes in the film industry are usually resolved amicably.
For example, New Line got to keep its title "Austin Powers in Goldmember" as long as Mike Myers promoted MGM's "Goldfinger" on TV. But The Weinstein Company and Warner Bros.'s protracted and very public scuffle over "The Butler" shows that a simple movie name can cause a lot of headaches for filmmakers and film companies.
Since "The Butler" fight erupted this week, one New York entertainment attorney told Indiewire he's received numerous calls from clients concerned about their titles. But for independent films, the situation is markedly different than most studio infighting.
For signatories to the Motion Picture Association of America and those who voluntarily pay to be members of the MPAA's Title Registration Bureau (TRB), like the Weinstein Company (TWC), there are strict guidelines and procedures that films must follow with respect to their titles. But in the real legal world, there are no copyrights on titles.
Independent films, thus, don't have to take part in the TRB, and nor is it recommended, according to W. Wilder Knight, a legal counsel for several independent filmmakers. "You don't want to sign up for the registry," he said. "You want to stay independent. You don't want to be bound by those guys in any way." In theory, then, indie films don't have to play by Hollywood's naming rules.
However, indies can still get into trouble over titles with their Errors and Omissions Insurance, according to Wilder. E&O insurers, which protect filmmakers from third party claims against them, usually require a title report. If the report shows any potential title conflicts, the E&O carrier will often suggest filmmakers change their title or seek permission to avoid any potential legal problems down the road. Even if a Hollywood major probably wouldn't win a case against a film with a similar title in a U.S. court of law, it can still sue—and no indie or insurer wants to pay for legal fees. "So it's not so much legal as financial," says Wilder.
For instance, in 1997, Morgan J. Freeman's Sundance Audience Award winner "Hurricane" was forced to change its title to "Hurricane Streets"; after MGM acquired the film, Universal refused to let the other company use the original title. Universal was already in active development on "Lazarus and the Hurricane," which was released as "The Hurricane" in 1999, starring Denzel Washington.
So Why Bother With the MPAA?
For The Weinstein Company, which is technically an independent studio, they don't necessarily have to abide by MPAA and TRB rules, but they voluntarily take part in order to protect their own titles from confusion in the marketplace. Because the company was already aware that potential problems could arise with "The Butler" title, they also registered "Lee Daniels's The Butler" and "The White House Butler," which are both likely alternatives when the film is released.
The Weinsteins, in fact, have a long and storied history with the MPAA's TRB, as was pointed out by Warner Bros' attorney John W. Spiegel in a lengthy July 4 letter sent to TWC's high-powered attorney David Boise (who, among other high profile cases, represented Vice President Al Gore in "Bush vs. Gore").
When the Weinsteins' company Miramax first joined the TRB in the mid-1990s, it changed the title of its Italian Oscar winner ''The Postman'' to ''Il Postino'' (''The Postman'') so as not to conflict with Warner Bros.’ post-apocalyptic Kevin Costner film "The Postman," which was in production at the time. In 1997, with the release of the Weinsteins' "Scream," Miramax was initially ordered to pay $1,500 per screen per day in damages after Sony Pictures claimed the title was too similar to their 1995 film "Screamers."
In 1999, the Weinsteins began fighting aggressively for their own titles, forcing Phoenix Pictures’ "Got to Be You" to change its title (presumably in conflict with 2000's "Down to You") and in 2003, taking New Line to task for their "Curse of the Mask" (likely because of Miramax's pending project "Cursed").
As with the MPAA's Ratings Board, its Title Registration Bureau—which has been operating since 1926—is kept behind closed doors, and its rules and process remain confidential.
But according to the MPAA, and previous reports in Slate and The New York Times, the Title Registration Bureau sends out a list of proposed titles to subscribers; then, TRB subscribers must register a complaint of any title that they believe conflicts with one that is already registered. The violating company can then seek a waiver from the company that first registered the title, or go to arbitration.
A Peculiar Judicial Process
Much of the debate around "The Butler" dispute has downplayed the highly subjective nature of such arbitration procedures. It sounds closer to a U.S. Military Tribunal than a U.S. Court of Law.
Made up of three "disinterested" representatives of MPAA member studios, the arbitration panel must determine whether titles "conflict" -- that is, whether a title is 1) "similar" to another title, and 2) whether that title could create "public confusion" as to the identity or origin of the film. (Both items are required to determine a title "conflict.") On such grounds, it's hard to believe that Warner Bros won its MPAA/TRB arbitration in the first place, as it's unfathomable how The Weinstein Company's 2013 release of "The Butler" could be confused with a 1916 silent and out-of-print one-reeler of the same name. (According to the MPAA, titles of already released films are protected for four years after release, or may be designated for permanent protection.)
While Title Registration Bureau arbitration rulings have been overturned or appealed in the past, there is no indication yet that the MPAA is budging on its "Butler" ruling this time out. But considering the way most title disputes have been resolved in the past, it's more likely that some backroom deal will be reached than the Weinsteins will win their appeal.
Whatever ultimately judgment is reached in the coming days, the current feud has managed to keep Weinstein and its movie, "The Butler," which remains fixed to its Aug. 16 release date, in the news, with Weinstein making a full court press to the media of his position.
Writing in The Huffington Post this week, Weinstein said, "My dad taught me to fight injustice. This is unjust." And as it has been widely reported, Weinstein went on to allege that WB is pushing their case against "The Butler" because they're hoping TWC will relinquish its stake in "The Hobbit" franchise. "This was used as a bullying tactic," he wrote. Resorting to tactics that have become familiar to Weinstein-watchers—and ironically (considering his stature and reputation), Weinstein added, "This was the big guy trying to hit the small guy."
Before the Weinstein Brothers, There Was the Marx Brothers
Harvey Weinstein isn't the only small mogul to go up against Warner Bros.
In the 1940s, Groucho Marx received a cease-and-desist letter from the studio threatening legal action if they did not change the title of the Marx Brothers' comedy "A Night in Casablanca" as it was too close to WB's 1942 release "Casablanca." Marx responded in a now famous letter.
"I had no idea that the city of Casablanca belonged exclusively to Warner Brothers," he wrote. "I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try."
"A Night In Casablanca" was released, without legal repercussions, in 1946.