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Patrick Goldstein and James Rainey
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Harvey Weinstein's 'Precious' lawsuit dealt a big setback

September 25, 2009 |  5:21 pm

Trust me: Harvey Weinstein is nothing if not determined -- especially when he's mad as a hatter.

When the Weinstein Co. lost the bidding war over "Precious: Based on the Novel 'Push' by Sapphire" following its premiere at January's Sundance Film Festival, he cried foul -- and took his tiff to the courthouse. In four lawsuits filed between TWC, Lionsgate and the film's producers, Smokewood Entertainment Group, Weinstein alleged that "Precious" sales agent John Sloss really sold the film first to TWC, and then sold it again to Lionsgate when it came along with a richer deal.

It's understandable why Harvey wants a piece of the movie: With endorsements from Oprah Winfrey and Tyler Perry (in addition to winning the Toronto International Film Festival's prestigious audience award), "Precious" is poised to make a big splash with critics and audiences when it opens Nov. 6. But as my colleague John Horn reports, a federal judge just told Harvey that he hasn't got a leg to stand on. It was only one bit of bad news for TWC. Theatrical production chief Tom Ortenberg, who hadn't been at TWC for even a year, announced Friday that he's jumping off what's looking more and more like a sinking ship:

A federal judge has dismissed a breach-of-contract case filed by the Weinstein Co. against the producers of "Precious: Based on the Novel 'Push' by Sapphire," ruling that TWC's lawsuit failed to state a valid legal claim that it was entitled to distribute the award-winning movie about a troubled young African American woman.

Friday's order by U.S. District Judge Naomi Reice Buchwald will likely benefit Lionsgate, which claims it is the rightful distributor of the film. Lionsgate has both sued and been sued by TWC in the "Precious" legal squabble. "It's a very significant decision," said Patty Glaser, a lawyer representing Lionsgate. She said she planned to alert the judges presiding over the three related "Precious" cases of Buchwald's ruling. TWC said it was not commenting on the ruling.

The legal dispute centers on who actually controls the rights to distribute Lee Daniels' movie, which Cinetic Media sales agent John Sloss represented at this year's Sundance Film Festival. As part of its legal papers, TWC claimed that a series of late-night e-mails proved that it had acquired the film from Sloss, essentially because in some of the e-mails, Sloss and Cinetic partner Bart Walker never said to TWC that there wasn't a deal.

Sloss and his lawyers said in court papers that neither Sloss nor Walker nor producer and financier Smokewood Entertainment ever made a final deal with TWC. What probably happened, according to people familiar with the dispute, is that both Lionsgate and TWC were pursuing the film simultaneously. Like any good sales agent, Sloss and Walker played one potential buyer off the other: When Lionsgate was able to agree on the terms, it had the movie.

Buchwald ruled that TWC failed to allege there was ever a written contract between the company and Smokewood, which several similar cases say is critical for the transfer of a copyright, and just because the company wanted the movie and Sloss didn't tell it there was no deal doesn't mean TWC gets the movie. Under these facts, Buchwald said, "there is no legally valid transfer." Even a most generous interpretation of the e-mails in favor of TWC, she said, doesn't prove there was ever a deal. To argue otherwise, she said, is to "strain credulity."

Indeed, in its legal papers, TWC admits there was never a written contract, but cites the e-mails as proof of a deal. Buchwald disagreed.  "A signed writing is required to effectuate a transfer of copyright ownership," she ruled. "To the extent that [TWC] alleges a purely oral agreement for the exclusive licensing and distribution rights to 'Push,' that claim clearly fails as a matter of law."

-- John Horn

Photo of Gabourney Sidibe in "Precious" from Lionsgate.