Johansson v. Disney

Johansson v. Disney on Podcast

I recently spoke to the Legal Talk Network about the ongoing dispute between award-winning actor Scarlett Johansson and the Walt Disney Company over its decision to release Black Widow on Disney+ at the same time as it released the film in theaters.

You can find the podcast here: Black Widow v. Disney

There is a lot of discussion about the lawsuit against the Walt Disney Company by Scarlett Johansson for breach of contract following the simultaneous release of the film on its streaming service Disney+.

Interestingly, as discussed in the podcast, the lawsuit is directed exclusively against Disney rather than its subsidiary Marvel Entertainment. The two causes of action are “Intentional Interference with Contractual Relations,” and “Inducing Breach of Contract.” The strategy is likely being used in an attempt to avoid the arbitration requirements of the Marvel contract as well as circumvent the “merger clause,” a provision that makes it much harder to bring in the emails and other evidence outside the text of the written agreement.

Still, at its heart, the lawsuit is really a simple breach of contract, as Johansson’s team acknowledges in the complaint. The contract requires “a wide theatrical release of the Picture (i.e., no less than 1,500 screens).”

There are many types of theatrical releases: four-wall, platform, limited run, Oscar contention, wide theatrical, Imax … Here, the contract does not use the word exclusive. Other studios had already been doing simultaneous theatrical/streaming, at the time this contract was signed, but not for wide theatrical releases.

But in emails, the post-contact communications included the assurance: “Further [to] our conversation today, it is 100% our plan to do a typical wide release of Black Widow.” That provides the extrinsic evidence of intent to support the industry custom and usage that wide theatrical releases include an exclusive 90 or longer window.

Although it was originally reported as the first of many such lawsuits, relatively few stars have contracts guaranteeing wide releases on at least 1500 screens. Other agreements generally will not have “exclusive” theatrical release in the contracts. Most don’t likely have assurances that the industry-standard release windows are implicit in the contracts as enforceable terms.

So Johansson has a good case, but not one that will rewrite the rules of Hollywood.

The situation also stands out because Disney has since released the Marvel film Shang-Chi and the Legend of the Ten Rings exclusively in theaters only a month after the release of Black Widow. This undermines Disney’s contention that the treatment of Scarlett Johansson was driven solely by concerns over COVID. Instead, it adds to the complaint made by many that a female lead will not get the same treatment as a male lead by the company. This disparate treatment is very embarrassing to the iconic Disney brand, and it may eventually lead to some reconsideration of the corporate decision not to compensate Johansson for the ticket sales lost to the Disney+ subscriber platform.

There is much more still to come on this conflict.