This week, it was first reported by the Wall Street Journal that Scarlett Johansson is suing Disney after the media giant simultaneously released Black Widow in theatres and on its Disney+ streaming service. According to the lawsuit, which was filed in Los Angeles Superior Court, Johansson alleges that Disney breached its contract with her by not giving the film an exclusive theatrical release. That’s not, in fact, what the suit alleges, but more on that below. For all intents and purposes, however, you can just assume she is suing Disney for breaching their contract with her by not releasing Black Widow only in theatres.
The suit specifically alleges that Johansson originally negotiated that her salary for the film would be based in large part on box office profits and that because Black Widow was also streamed, she lost a lot of money. As reported by Forbes, sources say that the alleged breach of contract could have cost Johansson more than $50 million in lost bonus payments, although speculated box office profits would be hard to prove in court.
Disney’s quick response Thursday did not hold any punches. The company stated that “there is no merit whatsoever to this [lawsuit],” and furthermore that the suit is “especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the COVID-19 pandemic.” The conglomerate also asserted that it fully complied with Johansson’s contract and that the release of Black Widow on Disney+ actually “significantly enhanced her ability to earn additional compensation on top of the $20 million she has received to date.”
Without a doubt, Disney is using the COVID-19 pandemic to portray Johansson as the villain in this story. The highly anticipated Black Widow – which was intended to kick-off the Marvel Cinematic Universe’s Phase 4 — notoriously suffered from multiple delays due to the pandemic and its effect on the movie theatre industry. Disney’s statement used strong language to condemn what it wants to portray as Johansson’s lack of compassion with respect to the worldwide devastation of COVID-19. On top of that, Disney certainly wanted to paint Johansson as greedy by drawing attention to the very large salary that the actress has already received for the film.
Johansson is the highest-paid woman in the Marvel franchise. She earned $35 million for Avengers: Endgame, and as a result, became the highest-paid actress in the world in 2019. To scale, Robert Downey Jr. made around $50 million in total for 2012’s Avengers film, bonus payments included and that wasn’t even for a solo film. Black Widow has so far grossed $318 million worldwide, the weakest performer since Disney purchased the comic-book publisher in 2009. While that’s not overly surprising given the circumstances, it could certainly lead to some hard feelings between the actress behind the iconic character and the studio.
While the publicity and media generated from Johansson’s suit will likely leave some lasting marks on Disney — including by paving the way for more artists to bring legal action against Disney and other influential companies — the media giant is still the favored winner of this case. It’s helpful to know that artists bring legal claims against huge studios like Disney all the time. They just don’t make headlines for several reasons. For starters, not every claim involves one of the most well-known actresses in the world, one of the most well-known companies in the world, and one of the most well-known film franchises in history.
Secondly, the contracts these artists sign almost always (if not always) include arbitration clauses. An arbitration clause is just a part of a contract that says, “If you want to sue me about this, you have to do it privately.” Arbitration clauses are extremely common and force the disagreeing sides to handle it outside of a courtroom. So, countless similar cases to Johansson’s have probably been handled privately and away from the public eye, which is how big corporations prefer it.
What does that mean in this case? Johansson no doubt has an arbitration clause in her contract that would not allow her to sue Disney in an actual court for breaching their contract. In other words, Johansson arguing the actual terms of the Disney contract is something that would automatically go to arbitration.
But the actress is not simply ignoring the law here—the lawsuit actually alleges that Disney, as a parent company, caused Marvel, its subsidiary, to breach contractual obligations. Instead of a contract claim (which is what is mostly being reported), this is actually a “tortious interference” claim, which is just a legal way of saying that Disney broke the law by forcing Marvel to break the law. So, she is not technically suing Disney directly about the terms of the contract, but this loophole involves very technical legal reasoning that may or may not be successful in court.
While the first thing that Disney will do is try to force Johansson to arbitrate (which could likely work), Johansson certainly succeeded in giving the dispute widespread public attention. Even more, she may rightfully assume that she would have more of an advantage in court. While she is a mega-millionaire and a wildly successful actress, she is actually the “little guy” in a fight with Disney.
Even assuming the case stays in court, Disney could very likely win anyway. Johansson’s whole argument is that Disney was in the wrong by not giving Black Widow “exclusive” theatrical release. In the lawsuit, Johansson bases her legal theory on a part of the contract that states “if Producer in its sole discretion determines to release the Picture, then such release shall be a wide theatrical release of the Picture (i.e., no less than 1,500 screens).” The important thing to notice here is how the provision does not say “exclusive” at all. The lack of simple language like this could simply kill the entire suit. After all, Disney can merely say they never promised what Johansson is claiming it did.
Maybe worse for Johansson, when asserting “tortious interference”, she will need to show that Disney broke its promise without justification. Considering that a worldwide pandemic caused movie theatres to close and moviegoers to stay away from the ones that stayed open, Disney can and will defend itself by saying the decision to stream on Disney+ was warranted. Given how extensively COVID-19 wrecked lives and industries, it is hard to imagine that a court would have no sympathy for at-home movie releases.
At the end of the day, these types of claims generally settle, and this one probably will too. Still, many are surprised that Disney would let this disagreement get to this point. The actress absolutely had conversations with Disney and Marvel long before yesterday but she ultimately decided to file a lawsuit anyway after it was clearly not resolved. This is a pretty big deal, because the company has every reason to sweep something like this under the rug and probably plenty of reasons to keep a good relationship with Johansson.
Does this signal a potentially rough future for Disney and Marvel? Arguably, Disney had major reasons to promote something like Black Widowon its streaming service to increase Disney+’s value, completely ignoring Marvel’s vision. There are rumors that Kevin Feige is very unhappy about Disney’s response to the whole situation. While Feige always comes off as if he’s at the top of the food chain, this makes it clear that problems surrounding who’s really in control of the MCU’s final product might get messier as time goes on.
Whether asserting her rights as an artist and businesswoman or calling attention to disparities between artists and the major studios they contract with, this will definitely pave the way for similar claims in the future. If this kind of spotlight continues, it could be possible that the rigid contractual expectations and limitations for actors and other artists could start to change in favor of the artists. Johansson apparently has significant support in the acting community, despite Disney’s attacks. While the effects of things like dual release models are fairly new to the industry, this could be opening up new conversations about standard actor contracts and maybe exposing unfair practices that studios use to take advantage of talent.