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Inside the battle for 'Precious'

September 29, 2009 |  1:04 pm

Last week, we briefly reported on the legal blow dealt to Harvey Weinstein's efforts to distribute "Precious, Based on the Novel ‘Push’ by Sapphire," the darling of the Sundance Film Festival that follows the brutal life of a young Harlem girl. The back story of this battle between Lions Gate and Weinstein Co. provides a snapshot into the sale of movies and just how hungry the struggling Weinstein Co. was for this property.

PRECIOUS

In January, Lionsgate Films announced 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.

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. "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."

-- John Horn

Photograph: Gabourey Sidibe in "Precious." Credit: Anne Marie Fox.

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