07/11/2013 12:33 pm ET Updated Jul 11, 2013

As 'The Butler' Title Fight Heats Up, Public Records Could Strengthen Harvey Weinstein's Case

Copies of the 1916 silent film "The Butler," whose title is at the center of a legal battle between Warner Brothers and the Weinstein Company, can’t be found in public archives and may no longer exist, according to a Library of Congress reference librarian. The revelation could complicate a corporate tug-of-war about Harvey Weinstein's upcoming film, also called "The Butler."

The star-studded movie -- the fourth from director Lee Daniels -- stars Oprah Winfrey as the wife of a longtime White House employee, played by Forest Whitaker. It focuses on issues of civil rights and has been pegged as Oscar bait.

But Warner Brothers, which made the 1916 film, has asserted its claim to the title in the middle of a marketing push for the new film. The company says that Weinstein violated rules put forth by the MPAA’s Title Registration Bureau, which states that studios who join the bureau can submit 100 titles for approval and then must wait for a sign-off. The rule is meant to “prevent public confusion over films with similar titles," according to the MPAA website.

On Tuesday, the Motion Picture Association of America ruled that the Weinstein Company cannot use the title. The company is appealing the decision, but the studio has in the meantime wiped the film’s website and pulled trailers from theaters in order to avoid fines of $25,000 per day.

The revelation that the original film might be unavailable for public consumption could strengthen the argument against Warner's camp. A sweeping search through public databases at the Library of Congress turned up no evidence that the 1916 film still exists, according to librarian Zoran Sinobad, though the film may be in private holdings. “I’d say 80 percent of the movies that have been made in that era have been lost,” Sinobad said. According to Deadline, a copy of the film is stored at the Warner Brothers library, but a representative answering the phone there would not confirm its existence, saying only that it's not possible to access the film through the web library.

Veteran Hollywood analyst Roger Friedman criticized Warner Brothers for engaging in a fight over the title, writing that its use would not generate any confusion.

"The MPAA title registry protects well known movies like 'The Artist' or 'The King’s Speech' so the consumer avoids confusion," he wrote. "But the 1916 short film 'The Butler,' which Warner Bros., is 'protecting' has never been seen by a person alive on this planet or even heard about or discussed prior to this."

The Library of Congress search did turn up a film called "The Butler" made in 1915, one year prior to the Warner Brothers release. That picture was produced by the now-defunct Edison Studios. According to Sinobad's search, Edison was the first studio to ever use the title, and the film is available to watch at the Museum of Modern Art, which confirmed it has the original copy in its archives.

Harvey Weinstein, appearing Tuesday on "CBS This Morning," said the real squabble has to do with “The Hobbit,” which is currently the subject of a separate battle. He added that "normal business practice" would entail some give and take, citing the example of "Heat," a title used repeatedly by various studios.

“It’s not that they’re wrong," Weinstein said on the show. "It’s just that a grace note would have just said this is a movie about civil rights. Twenty-eight individual investors financed the movie, and 122 times in the history of movies, titles have been used and repeated. Our understanding with them was this was going to be a simple process.”

Warner Brothers insists that Weinstein's refusal to change the title is a ploy by the hawkish mogul to drum up publicity. “You have to play by the rules,” a studio representative told The Huffington Post. “‘The Bodyguard’ -- that was a good title before they made the movie. It’s not about the 1916 movie, or about civil rights. It’s a good title.”

The new movie is still scheduled to come out Aug. 16.