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Weinstein Co. loses a round in its fight over 'Precious'

A judge rejects the studio's claim that it bought the film before Lionsgate. Three related suits are still pending.

September 29, 2009|John Horn

Deal or no deal? When it comes to distribution rights to "Precious: Based on the Novel 'Push' by Sapphire," a federal judge has told Harvey Weinstein that he doesn't have one.

Poised to become one of the fall's most talked-about dramas when it premieres Nov. 6, "Precious" landed in a legal skirmish days after the film was sold following the Sundance Film Festival in January.

Lionsgate Films announced that it had acquired director Lee Daniels' harrowing account of a young black woman's personal life. Weinstein Co. alleged that independent film sales agent John Sloss actually sold "Precious" to Weinstein Co. first, then dealt it to Lionsgate when it offered a better deal.

On Feb. 4, two days after Lionsgate announced that it had acquired the film, Lionsgate and Weinstein Co. sued each other to determine who controlled the movie.

Weinstein Co.'s legal challenge suffered a major setback Friday, when U.S. District Judge Naomi Reice Buchwald dismissed one of the four lawsuits that arose from the dispute. In her ruling in a New York case brought by Weinstein Co. against the film's producers, Smokewood Entertainment Group, Buchwald said that Weinstein Co. never had a written contract to distribute the film, an essential ingredient when a copyright is transferred to another party. For Weinstein Co., it was part of a double dose of bad news to end the week: production head Tom Ortenberg, who joined the firm in January, said he was leaving the struggling studio.

"A signed writing is required to effectuate a transfer of copyright ownership," Buchwald wrote. "To the extent that [Weinstein Co.] alleges a purely oral agreement for the exclusive licensing and distribution rights to 'Push,' that claim clearly fails as a matter of law."

To interpret e-mails between Sloss' Cinetic Media and Weinstein Co. executives as proof of a formal deal, she wrote, is to "strain credulity."

Steven Hayes, a lawyer for Smokewood owners Gary and Sarah Magness, said, "The judge's decision was well thought-out and well-reasoned." Added Lionsgate attorney Patricia Glaser: "It's a very significant decision."

Glaser said she would inform the judges overseeing the other three cases of Buchwald's ruling, hopeful they also would be dismissed. A lawyer for Weinstein Co. did not respond to a telephone message or an e-mail seeking comment, and the company declined to comment.

In addition to marking another defeat for Weinstein Co., which has had to lay off employees and restructure its debt as its movie slate has crashed, the "Precious" litigation offered a glimpse into how movies are sold, and how desperate Weinstein Co. was to land the film.

The e-mails between Cinetic and Weinstein Co. suggest that Weinstein Co. executives grew increasingly anxious as Sloss was fielding offers in late January, and the movie was slipping from its grip. Because "Precious" was endorsed by filmmaker Tyler Perry and Oprah Winfrey, the movie's potential box-office value was soaring.

"I just got off the phone with Harvey and I am glad to confirm that we have a deal," David Glasser, Weinstein Co.'s international distribution president, e-mailed Sloss at 7:05 p.m. Jan. 27

But the film's sales agents said it wasn't sewn up yet. "Guys, I am explaining every detail to the producers and financiers and taking comments and will call you when this conversation is over," Sloss colleague Bart Walker e-mailed back seven minutes later. Sloss and Walker never told Weinstein Co. in any e-mail cited by Weinstein Co. that there was a deal, but Glasser didn't let up.

That night at 11:55 and the next day at 12:15, 2 and 4:15 a.m., Glasser sent e-mails to Walker and Sloss, trying to establish that Weinstein Co. had bought "Precious" and asking for written documentation of the deal.

"Please understand that these rights are important to us and we fully intend to enforce the deal that we have made with or without written documentation," Glasser wrote at one point. Growing more adamant, Glasser e-mailed just before dawn: "We have an enforceable contract and will take whatever action is necessary to enforce it." But Walker replied, "Contrary to your assertion, there has been no agreement reached."

Weinstein e-mailed Lionsgate CEO Jon Feltheimer, saying that Feltheimer was "not the kind of person who would interfere" with Weinstein's deal.

Buchwald sided with Lionsgate. "These e-mails do not suggest any intention on the part of Walker to enter into a preliminary binding commitment to conclude the deal," she wrote. "Rather, they suggest nothing more than that [Smokewood] was considering the deal on the table between the parties."

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john.horn@latimes.com

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