A Hero Both On and Off Screen? Scarlett Johansson Saving the Exclusive Theatrical Release

By: Brian Mulligan   

In May 2010, the world was first introduced to Scarlett Johansson’s (“Ms. Johansson”) portrayal of the Marvel Cinematic Universe (“MCU”) superspy Black Widow in the film “Iron Man 2.”[1] More than a decade later and after several delays due to the COVID-19 pandemic, Ms. Johansson finally starred in her own Black Widow movie.[2] However, even after the Black Widow story ended, Ms. Johansson’s battles continue as she faces a new villain: the Walt Disney Co.[3] On July 29, 2021, Ms. Johansson filed a lawsuit against Disney claiming breach of contract as a result of the company simultaneously releasing “Black Widow” on its streaming service, Disney+, at the same time as the film’s theatrical release.[4]

            As with many films slated to be released in 2020, the “Black Widow” premiere was delayed several times.[5] In March 2021, Walt Disney Co. Chief Executive Bob Chapek (“Mr. Chapek”) announced that “Black Widow” would premiere on Disney+ on the day that it opened in theaters.[6] However, according to her lawsuit, Ms. Johansson’s team sought the alleged contractually guaranteed exclusive traditional big-screen release to no avail.[7] The suit also stated that Marvel’s chief counsel, Dave Galluzzi, affirmed that it was “’100% [Disney’s] plan to do a typical wide release of Black Widow,’” which, according to Ms. Johansson’s legal team, meant that the film was to be released exclusively in theaters for ninety to one-hundred-twenty days before being released on streaming services.[8] Moreover, Ms. Johansson has accused Disney of “blatantly rigging revenue streams away from the box office and to the company’s new subscription service” which would effectively increase the bonuses received by Mr. Chapek and Disney Chairman Robert Iger, whose annual bonuses are tied to the performance of Disney+.[9] Ms. Johansson hopes to show that Disney’s dual release contributed to the film being one of Marvel’s lowest grossing films (second only to “The Incredible Hulk”), which effectively deprived her of her compensation tied directly to box office sales.[10]

            Disney believes the company has fully complied with the contract at issue and has even “enhanced [Ms. Johansson’s] ability to earn additional compensation” with its dual release.[11] A Disney spokesperson stated that the complaint is meritless and even attacked Ms. Johansson’s character by accusing her of wanting to endanger the lives of people who wanted to watch the movie at home to avoid catching the COVID-19 virus.[12] Disney will likely put forth a defense that relies on the COVID-19 pandemic, which, if successful, may have significant implications for the entertainment industry.[13]

            However, a COVID-19 defense, which would presumably rely on the doctrine of impossibility, may not be the silver bullet Disney hopes for.[14] In October 2020, the District Court for the Southern District of Florida addressed a motion to dismiss which argued that COVID-19 frustrated its purpose and made it impossible to perform, thereby barring the plaintiff’s breach of contract claims.[15] There, general knowledge about the existence of COVID-19 could “not conclusively establish the defense of impossibility or frustration of purpose.”[16] The court could not, without sufficient evidence, permit the defendant “to reap the full benefits of an agreement in return for only partial performance.”[17] COVID-19 may not provide the impossibility defense that a successful Disney suit would need.

            Nevertheless, this suit may open the floodgates for impossibility within the entertainment industry as streaming services become the norm and COVID-19 forces a shift away from the exclusive traditional theatrical release.[18]Other stars will look at how Ms. Johansson’s case proceeds, while studios with complementary streaming platforms will already be looking at what contractual steps they need to take to ward off further actions.[19] Whatever the consequences may be, this case will be closely watched.

[1] Eliana Dockterman, Black Widow Began as a Sexist Stereotype. More Than a Decade Later, Scarlett Johansson Is Reclaiming Her Story, Time (July 2, 2021, 7:00 AM), https://time.com/6077666/black-widow-scarlett-johansson/.

[2] Julia Alexander, ‘Black Widow’ Delayed to 2021, Pushing Back “The Eternals” and Other Marvel Movies, The Verge (Sept. 23, 2020, 1:09 PM), https://www.theverge.com/2020/9/23/21437889/black-widow-delayed-release-date-marvel-cinematic-universe-disney-streaming-mulan.

[3] See Joe Flint & Erich Schwartzel, Scarlett Johansson Sues Disney Over ‘Black Widow’ Streaming Release, Wall St. J. (July 29, 2021, 5:57 PM), https://www.wsj.com/articles/scarlett-johansson-sues-disney-over-black-widow-streaming-release-11627579278.

[4] Id.

[5] Alexander, supra note 2.

[6] Erich Schwartzel & Joe Flint, How Disney and Scarlett Johansson Reached the Point of No Return, Wall St. J. (Sept. 3, 2021, 1:06 PM), https://www.wsj.com/articles/how-disney-and-scarlett-johansson-reached-the-point-of-no-return-11630688765.

[7] Id.

[8] See id.

[9] See David K. Li & Diana Dasrath, Scarlett Johansson Sues Disney, Claims ‘Black Widow’ Streaming Cut into Box Office Profits, NBC News (July 30, 2021, 1:37 PM), https://www.nbcnews.com/pop-culture/pop-culture-news/scarlett-johansson-sues-disney-claims-black-widow-streaming-cut-box-n1275420; see also Flint & Schwartzel, supra note 1.

[10] Tyler Aquilina, What Scarlett Johansson’s Black Widow Lawsuit Means For the Future of the Movie Business, Entertainment Weekly (Aug. 7, 2021, 8:30 AM), https://ew.com/movies/scarlett-johansson-black-widow-disney-lawsuit-analysis/.

[11] Li & Dasrath, supra note 9.

[12] Danny Cevallos, Disney Co.’s Covid Excuse in Scarlett Johansson Lawsuit is Darkly Comical and Clearly Flawed, NBC News: Think (Aug. 10, 2021, 4:17 PM), https://www.nbcnews.com/think/opinion/disney-co-s-covid-excuse-scarlett-johansson-lawsuit-darkly-comical-ncna1275840.

[13] Flint & Schwartzel, supra note 1.

[14] Cevallos, supra note 12.

[15] Rosado v. Barry U. Inc., 499 F. Supp. 3d 1152, 1157 (S.D. Fla. 2020).

[16] Id.

[17] Id.

[18] See Flint & Schwartzel, supra note 1.

[19] See Scarlett Johansson Sues Disney Over Streaming of “Black Widow”, BBC News (July 30, 2021), https://www.bbc.com/news/world-us-canada-58017445.