According to a number of outlets (but here’s a BBC Link) Scarlett Johansson is suing Disney for breach of contract after it streamed the film Black Widow on its Disney+ service at the same time as its cinema release.

The film apparently set a box office record for a release during the Covid-19 pandemic, grossing $218m (£157m) in its first weekend.

But box office receipts then fell sharply, says the BBC.

Disney says it complied with her contract and that her case had ‘no merit whatsoever’

The first thing to point out is that obviously I am not an American law specialist and therefore the American courts, particularly a Jury, may reach a different view to what follows. But I’ve got hold of the court papers and have reviewed them.

Here’s what the Black Widow contract said:

[Johansson’s Company] shall furnish [Marvel Studios] the services of Artist to perform the role of ‘Black Widow’ / ‘Natasha Romanova’ in the theatrical motion picture currently entitled ‘Black Widow’ (‘Picture’). For the avoidance of doubt, if [Marvel] 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 emphasis is added inh claim document)

Extract from the Black Widow contract/claim particulars found here

The claim goes on to say that “it was well understood that a ‘theatrical release’ referred to an exclusive release in theatres for an extended period of time that was roughly 90-120 days”

The Court papers say that the contract provided for Ms Johansson to received deferred compensation and bonuses directly tied to the amount of worldwide box office (WWBO) receipts for the Picture – the greater the WWBO, the more Johansson stood to earn.

The contract was entered into on 9th May 2017. On 8th August 2017, Disney announced its plans to launch the service that would eventually become Disney+, a direct to consumer streaming service.

Johansson claims that Disney, Marvel’s parent company, knew that putting the movie on Disney+ would reduce WWBO and increase Disney’s own profits – thereby cutting Johansson out of significant sums.

So what is the legal view?

As I say, I’m not an American lawyer. The first claim is a breach of contract claim. If the claim was in the UK the questions would be:

1. Is there a contract? (Yes)
2. What are the terms of that contract?
3. Has there been a breach of contract?
4. Has D suffered losses which flow from the breach?

My issue is with 2 and 3 primarily. 4 follows those.

The claim specifically says that a theatrical release meant an exclusively theatrical release – and that both parties knew and understood this – and yet the contract doesn’t say that. It would be quite easy for the drafters of the contract to have included the word exclusive. It was crucial, in fact, because as the claim says “[Disney] was competing with a number of other major subscription streaming platforms including but not limited to Netflix, Hulu, Amazon Prime Video, CBS All Access, HBO Now and Apple TV”.

It was therefore something the contract drafters and parties, particularly Johansson, ought to have been alert to and concerned about. Adding the word ‘exclusively’ to ‘theatrical release’ would have certainly strengthen Johansson’s claim.

Without it, has there really been a breach by Marvel/Disney?

Their obligation under the clause was if they release the film, that it shall be a wide theatre release of no less than 1500 screens.

And that’s what they did. And it grossed more than any other film in the last 18 months as a result.

So, I really question whether Disney/Marvel have in fact breached the contract.

The other claim put forward is one of tortious or contractual interference, the claim being that Disney intended to disrupt or prevent Marvel from performing the contract by forcing Marvel to air Black Widow on its streaming service.

For the reasons set out above, I’m not sure that Disney can be liable for this if there was no breach of contract in the first place.

The claim also asserts “malice, oppression, fraud and wilful disregard” but they just sound like a passionate lawyer overdoing the words!

The claim also refers to an email from Marvel’s Chief Counsel in March 2019, after Johansson’s team reached out regarding the impact of Disney+ on Black Widow. He confirmed that the deal was based on a series of very large box office bonuses.

However, that statements as made well after the contract was entered into – 2 years or so – and therefore Johansson will only be able to rely up on it as evidence of what was agreed and in the minds of the parties at the time and not as a warranty or representation that endured her to enter into the contract.

So, I’m afraid the view of this FakeJudge Mather is that Johansson seems unlikely to succeed on what I’ve seen to date.

Finally, I hope you like the image – obviously I didn’t want to use images of Johansson, Disney, Marvel or Black Widow for fear of being sued for trade mark or copyright infringement!