EXCLUSIVE: Steve Tisch had every right to feel good about the world as he flew back from Houston eight days ago after his New York Giants football team won its first game of the season over the Texans. Top draft pick RB Saquon Barkley scored a touchdown, and Eli Manning — the QB the team gave a confidence vote to by choosing Barkley instead of a quarterback of the future — threw two touchdowns and completed 25 of 29 passes.

David Boies Harvey Weinstein
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That good airborne feeling was interrupted by the following turbulence: Tisch opened his New York Times and read James B. Stewart’s lengthy feature on David Boies, the legal eagle who is trying to reestablish his reputation after he was excoriated for his close relationship with disgraced movie mogul Harvey Weinstein, and disgraced Theranos blood testing proprietor Elizabeth Holmes. Boies’ legal firm, you’ll recall, had been fired by NYT last fall after it was revealed the lawyer played a key role in assembling Black Cube, the team of undercover operatives that included ex-Mossad agents which tried to undermine the investigation into Weinstein by Times reporters Jodi Kantor and Megan Twohey, and The New Yorker’s Ronan Farrow. Those three published anyway and shared a Pulitzer Prize for exposing allegations that Weinstein was a serial sexual predator who forced himself upon dozens of women over decades (he has long denied engaging in any non-consensual sexual activity).

Why was Tisch upset? The article by Stewart, also a Pulitzer Prize-winner, flat out called his film The Upside a flop. That is the remake of the lauded 2011 French film that Tisch produced, a film that saw its smooth path from a Toronto Film Festival premiere into the 2017 Oscar race upended by Weinstein’s scandalous downfall and a plunge into Chapter 11 bankruptcy for his The Weinstein Company that forced the film to miss its original release date because there was no money to promote it. Boies invested $5 million in the film, lost it, and, Tisch believed, characterized the film as a flop and it was stated as fact. The Upside has weathered a lot of adversity, with Lantern Capital taking possession of TWC’s assets and setting the film for release with STX. So, Tisch seethed on the airplane: how can the remake be dismissed as a flop when it won’t get its chance in the marketplace until it is released three months from now on January 11, 2019?

Tisch and his Escape Artists partner Todd Black tell Deadline they were upset enough to seek a correction, but that Stewart’s NYT editor Nick Summers flatly refused. The rationale? That Boies lost his entire $5 million investment in the film when it was washed clean by the bankruptcy judge who approved the asset sale to Lantern. While the editor acknowledged that The Upside might get a successful second lease on life when the film is released, the editor told the producers that in the context of the Boies story, calling The Upside a flop is a fair representation. It was one of two deemed a flop, as Boies also invested $5 million in the Matthew McConaughey film Gold, which was released and fit that designation with a gross less than $15M worldwide.

Todd Black Steve Tisch
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Tisch and Black strongly disagree with the NYT and are concerned that such a condemnation by that influential paper will create an indelible perception on the internet. They asked to correct the record here.

“There was more concern about David Boies losing money than anything else here,” said Tisch. “What the Times did is not fair to the movie or all the people who worked on it.”

Black told Deadline: “That the reporter and his boss think this is not a big deal is beyond disturbing to me. A lot of people worked really hard on this film, having nothing to do with Harvey Weinstein. To say it’s a flop in Hollywood, before it comes out, you just don’t do that. This is our livelihood. For them to say, ‘well, it’s in the body of an article about David Boies’ doesn’t matter. First of all, you’re The New York Times. Get your facts correct, particularly with everything going on in this moment with that newspaper. And then to say, we’re not going to change it? The movie doesn’t come out until January 11. Steve and I are in the movie business. We don’t want The New York Times, of all papers, to say the movie is a flop when it hasn’t even been released. It’s irresponsible journalism and hurtful on every level to us as the filmmakers, to the director Neil Burger, to Kevin Hart, Nicole Kidman and all of the actors who love this film. It’s wrong to STX, which paid a lot of money to Lantern to release the film. It doesn’t matter if it’s one line in a David Boies article. It’s irresponsible of The New York Times to not print a retraction.”

Tisch described himself as “incensed” when he first read the article on the plane ride, and frustrated that the newspaper would not own its mistake: “It’s now out there on the internet. If someone happens to Google The Upside and they’re given the option to read something on The New York Times online, the reference is, flop. Can this impact somebody who might say, ‘why would I see this movie? It probably has already been released, and The Times said it’s a flop.’ But how is that possible, when the movie has never come out?

“I felt badly for everybody involved in the film,” Tisch said. “To have a Pulitzer Prize winning New York Times journalist use that word to describe a movie that a lot of people worked very hard on, from the perspective of a lawyer who was a friend of Harvey Weinstein, who invested in the movie and lost his money not because the movie failed, but because of all the legal entanglements at The Weinstein Company? Don’t call our movie a flop, when it has not even been released.”

All of the finished TWC films that saw release plans upended by the Weinstein scandal, and that includes the Benedict Cumberbatch-Michael Shannon-starrer The Current War which also premiered at 2017 Toronto (it is still looking for distribution), to Hotel Mumbai, a film which Bleecker Street is releasing after a 2018 Toronto premiere last month.

Tisch and Black said they believed firmly that The Upside was poised to live up to its title financially after it first premiered in Canada a year ago (it got a 55% rating on rottentomatoes.com based on a small sampling of 11 critics who reviewed that cut at 2017 Toronto). The producers haven’t changed their opinion of the film’s prospects now, telling Deadline that the current cut is tighter and sharper, and adding that stars Hart, Cranston and Kidman plan to promote it.

“The Toronto screening was a huge success at Roy Thompson Theater, and then we tested it right after at Lincoln Center and it got 96%, and Harvey was boasting to everybody at Lincoln Center that it was the highest rating of any Weinstein movie ever,” Black said. “The movie is a total audience pleaser and I think it’s going to be a big fat hit, actually. So to read it’s a flop was infuriating and for the guy’s boss to say we’re not going to print a retraction, that’s who I am angriest with. We are the producers of this film; STX paid a lot of money, and Lantern paid a lot to get The Weinstein Company and one of the reasons was that they are excited by this movie. Kevin Hart loves it, and so do Bryan Cranston and Nicole Kidman and Neil Burger. We all worked very hard to make a really good movie. It’s just wrong they wouldn’t print a retraction or a correction.”

Attempts to get comment were unavailing.