By: David Lally
The “Black Widow” isn’t finished fighting just yet. After co-starring in nine movies over the last eleven years, Scarlett Johansson retired her beloved Marvel Cinematic Universe character following her first solo movie, “Black Widow.” But there is one more fight to be won for the longtime actress, as Johansson filed claims for intentional interference with contractual relations and for inducing a breach of contract against her former employer, The Walt Disney Company (“Disney”). The lawsuit, filed in Los Angeles Superior Court, alleges that Disney improperly directed Marvel Studios (“Marvel”) to release the “Black Widow” film on its Disney+ streaming platform simultaneously with its theatrical release. Johansson states that the decision impacted her compensation as it took money out of the film’s box office performance, and therefore took money out of her earnings, as her compensation included a cut of the film’s box office receipts. By debuting the movie on its streaming service at the same time, Johansson believes that Disney cost her an estimated $50 million.
Johansson is not the first Hollywood star to deal with the repercussions of movies being theatrically released simultaneously with their streaming platform counterparts. Warner Media gave “Wonder Woman 1984” director, Patty Jenkins, and star, Gal Gadot $10 million payouts as part of the film’s theatrical and HBO Max releases. “Wonder Woman 1984,” which was released Christmas day 2020, made a meager $166 million worldwide, in comparison to the original Wonder Woman movie that brought in $822 million. Emily Blunt and John Krasinski are also reportedly seeking financial compensation from Paramount Pictures, after it decided to shorten the theatrical release time of their upcoming horror sequel “A Quiet Place Part II.” Both Blunt and Krasinki have a contract with the studio that compensates them based on the film’s box-office performance, much like Johansson’s deal with Disney.
Actor compensation for movies has been tied to box office revenue for decades, with “A-list” type actors typically guaranteed a share of their film’s profits. While prominent streaming services, such as Netflix, make massive deals with the stars they hire, in exchange for forgoing theatrical releases; traditional studios have generally continued to do business the old-fashioned way. Professionals in the entertainment business expect contractual negotiations with studios to start changing, as actors and their representatives will now be demanding more money up front. Universal Studios just paid $400 million for a new “Exorcist” trilogy, which has yet to even begin production, that will be launched on its streaming platform, Peacock. “In a traditional scenario, that would have been a deal that would pay the filmmakers a lot of money if the movies are successful, but not guarantee anything beyond the first movie, and what [the filmmakers] did, essentially, is they said, ‘We think this is a great property and you can make three movies. Pay us up front and we’ll do it, but pay us as if they were all hits.’” This change in tactics for getting deals done with “A-list” type talent may be one that in the long term will not benefit studios as much as the old-fashioned way of doing things, but at least some studios are open to a newer way of doing business in the streaming age. Disney, according to Johansson in her lawsuit, did not respond to her attempts to negotiate new terms following the announcement of the hybrid release model in the spring of 2021.
Johansson and her legal team are attempting to prove a breach of contract by Disney. Disney contends that Johansson should be suing its subsidiary, Marvel, and the actress’ decision to instead file a suit against them is “gamesmanship” and an improper attempt to evade her contract’s expansive arbitration agreement. Johansson and her team argue that it was Disney, not its subsidiary Marvel, that ultimately decided to release “Black Widow” in theaters and on Disney+, therefore it was Disney, not Marvel that breached the actor’s contract. The distinction is an important one, as Disney has filed a motion to compel arbitration between Johansson and Marvel, conceding that they are not signatory to the “Black Widow” contract, but that the terms of the agreement are nonetheless binding. The contract calls for Periwinkle, Johansson’s production company, to arbitrate all claims “arising out of, in connection with, or relating to” the “Black Widow” agreement. Disney believes that Periwinkle’s claims of accusing Disney of intentional interference with contractual relations and inducing breach of a contract fall squarely within the contract language. According to Disney, “In a futile effort to evade this unavoidable result Periwinkle excluded Marvel as a party to this lawsuit, substituting instead its parent company Disney under contract-interference theories. But longstanding principles do not permit such gamesmanship.” In this response, Disney cited the California Court of Appeal’s ruling in Boucher v. Alliance Title Co. Inc., which held that a signatory to an agreement containing an arbitration clause may be compelled to arbitrate its claims against a non-signatory when the relevant causes of action rely on and presume the existence of the contract. Whether Scarlett Johansson’s lawsuit ever sees the inside of a courtroom will be determined by how favorably the judge looks at Disney’s argument, but regardless of the outcome, it is undeniable that changes to the way of doing business in Hollywood have already begun.
Student Bio: David Lally is a second-year law student at Suffolk University Law School and a staffer on the Journal of High Technology Law. David received his bachelor’s degree from the University of New Hampshire in History and Justice Studies.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
