Scarlett Is Only the First: Inside the ‘Black Widow’ Lawsuit

Scarlett Johansson in a scene of Black Widow
Photo by Jay Maidment/Marvel Studios
Matthew Belloni
July 29, 2021

Where to begin? How about here: Over the past few days, I’m told by two sources, Disney executives had begun reaching out to some of the talent from its summer 2021 movies, exploring a possible plan that would pay them extra money to compensate for the cannibalized box office revenue that occurred after the studio put their films on Disney+’s “premier access” tier the same day as the company released them in theaters.

It was a big turnabout. Disney had steadfastly refused to compensate its creative partners for its day-and-date streaming gambit in the same way WarnerMedia had bought out many of its talent as if its 2021 theatrical slate had been hits. Instead, Disney’s “premier access” revenue would be lumped into the box office bucket, minus a percentage for digital distributors, making scores of stars and others very upset. Amid the outreach, representatives for those talents wondered about the reason for the sudden change of heart.

It may have been a coincidence, or Disney may have suspected what was coming. Today, C.E.O. Bob Chapek and distribution chief Kareem Daniel saw what happens when a big movie star feels cheated and disrespected. What’s most interesting about Scarlett Johansson’s blockbuster lawsuit (I recommend you read it here) isn’t that the actress claims that the shift of Black Widow from a theatrical exclusive to a blended theater-plus-$30-a-pop debut on Disney+ strategy screwed her out of more than $50 million in box office bonuses. That claim was entirely predictable, the product of Disney failing to acknowledge—as WarnerMedia did, most notably on Wonder Woman, another female-led superhero pic—that experimentation during the pandemic would require making its talent feel whole. I previewed this exact claim in an email back in June called “Disney’s Summer of Discontent,” which explained, among other things, that Disney was stonewalling some of its biggest stars, and throwing PVOD revenue into the box office pool doesn’t automatically make up for all those $15 tickets not purchased.

No, the most interesting part of this new saga is that Scarlett’s lawyer, John Berlinski, appears to hit on the precise business problem plaguing Hollywood in 2021: the interests of the studios no longer appear aligned with those of the stars. We make money, you make money has been the social covenant of the entertainment business since the end of contract players and the studio system. First it was escalating up-front fees, then back-end profit participation, first-dollar gross, cash-breakeven deals; and, these days on Marvel movies, a box office bonus structure in which the talent is paid a lot more in success. There have been problems with all of those compensation schemes, and I’ve chronicled some of them in this space. But in the end, when the distributor succeeded, the creatives also usually succeeded.

That’s increasingly not the case in the streaming age, an era in which Wall Street places a higher value on subscriber metrics—a powerful harbinger of future revenue—than what’s currently on the balance sheet. The Johansson suit takes aim at exactly that issue. Chapek and former C.E.O. Bob Iger “personally benefit from their and Disney’s misconduct,” according to the complaint, because dropping Black Widow on Disney+ allowed the company to drive Marvel fans to the platform that matters. The company touted the premier access purchases in a press release, which in turn goosed the stock 4 percent the day of the announcement. Iger and Chapek are compensated on those stock increases, as are shareholders. “In short, the message to and from Disney’s top management was clear: Increase Disney+ subscribers, never mind your contractual promises, and you will be rewarded,” the complaint reads. In other words: who at Disney really cares that Black Widow cratered in theaters after its opening night, was pirated rampantly, and will end up as one of the lowest-grossing Marvel pics in years? Internally, and on Wall Street, the Disney+ numbers are all that count.

Disney’s unusually sharp response to the suit—a spokesperson called it a “callous” response to the impact of COVID-19—implicitly attempts to shame Johansson for earning a $20 million up-front fee and being insensitive to the pandemic, even though the release date was Disney’s call, not hers. I’m told that Disney actually wanted the movie to come out in May, before vaccines were widely available, which of course could have juiced Disney+ even more.

We can argue whether an actress should be paid $70 million when her pre-branded superhero movie performs as expected at the box office, just like we can argue whether Chapek should be paid $14.2 million in a year in which he laid off about 32,000 employees. But the fact is that she negotiated these terms, Disney agreed to them, and then—after changed circumstances, no doubt, but through no fault of Johansson—the release plan was shifted in a way that potentially violated her contract.

The Disney argument, which I don’t disagree with, is that in these pandemic-addled times, Black Widow probably would not have grossed anywhere near a pre-pandemic number, and that’s no fault of Disney+. After all, F9, the summer’s theaters-only sure-thing, has grossed only $623.9 million, down significantly from F8 of the Furious, especially domestically. In fact, throwing the PVOD revenue into the box office pool actually allows Johansson to benefit from that cash, even if it likely cuts into the theatrical haul.

But Johansson has a “smoking gun” to boost her case. In her contract she is guaranteed a “theatrical wide release” of at least 1,500 theaters. That’s standard, and Disney could just argue that “theatrical wide release” doesn’t necessarily mean exclusively theatrical. But she also has an email from Marvel’s top lawyer Dave Galluzzi to Johansson’s deal attorney, Kevin Yorn, on March 20, 2019. Yorn was clearly concerned that the launch of Disney+ that winter might change the strategy for Marvel movies, so he smartly asked Galluzi to confirm the strategy. Galluzzi writes (emphasis in the complaint):

Further [to] our conversation today, it is 100% our plan to do a typical wide release of Black Widow. We have very high expectations for the film and are very excited to try to do for Black Widow what we’ve just done with Captain Marvel.

​We totally understand that Scarlett’s willingness to do the film and her whole dealis based on the premise that the film would be widely theatrically released like our other pictures. We understand that should the plan change, we would need to discuss this with you and come to an understanding as the deal is based on a series of (very large) box office bonuses.

A “typical wide release.” “What we’ve just done with Captain Marvel,” which was an exclusive wide release. “Her whole deal” is premised on those box office bonuses, and any change would have allowed Yorn and CAA to renegotiate the terms. Those are pretty good facts for Johansson. Yes, the pandemic did change the circumstances significantly, and Black Widow sat on the shelf for over a year, having been delayed three times. But all Disney would have had to do is go to Johansson’s reps and renegotiate, probably for far less than the $50 million she’s now seeking. Instead, they ignored emails and calls from Yorn and CAA’s Bryan Lourd. They just didn’t want to seriously engage.

Don’t underestimate the Kevin Feige factor here. One reason Johansson may have felt emboldened to sue is because she’s at the end of her Marvel deal. For that reason, Disney doesn’t have to care about an ongoing relationship. But the head of Marvel Studios is probably Disney’s most important employee—including, let’s be honest, Bob Chapek. Feige is the guy responsible for the most remarkably successful streak in film history and a big chunk of Disney+ output for the next few years. So pissing him off isn’t exactly in the company’s best interest.

And make no mistake: Feige is pissed. He’s a company man, and not prone to corporate showdowns or shouting matches. But I’m told he’s angry and embarrassed. He lobbied Disney against the day-and-date plan for Black Widow, preferring the big screen exclusivity and not wanting to upset his talent. And then when the shit hit the fan, the movie started tanking, and Johansson’s team threatened litigation, he wanted Disney to make this right with her. (Disney declined to comment on Feige.)

I won’t suggest Feige would leave Marvel over this, but back in 2019, when he was bristling over the erratic behavior of Marvel boss Ike Perlmutter, Feige made it clear his future at the company was at stake, according to a source familiar with his actions. Disney’s Alan Horn soon recognized the threat and moved Feige out from under Ike. What will Kevin (and his lawyer, Skip Brittenham) do now that his wishes were ignored, his treasured theatrical exclusives are threatened, and his parent company is now a defendant in a lawsuit alleging it screwed over one of his biggest stars? That DC Comics library has probably never looked more attractive.

Yes, this case will almost certainly settle, and probably pretty quickly. Disney will likely agree to do something similar to what Warners did, having to endure the bad PR of a lawsuit instead of just the public gripes of agents and filmmakers. Indeed, the outreach over the past few days was likely a step in that direction.

But there is an unusually high amount of cheering going on today in the talent community, which indicates these issues aren’t going away anytime soon. Disney is notoriously difficult to deal with, and has become even more so under Chapek. Agents and lawyers have been waiting a long time for someone of Johansson’s stature to take a stand publicly. Emma Stone, star of Cruella, is said to be weighing her options, and Emily Blunt, who raised a similar gripe over the much more favorable windowing strategy on Paramount’s A Quiet Place Part II, is likely watching the Jungle Cruise numbers closely this weekend. Writers, directors, stars, and others have been reaching out to their reps, asking how they can help. The floodgates might be opening.