LEGAL IN FILM
Scarlett Johansson v. Disney The Secret Leverage in the Lawsuit By Je rome Jackson
That is precisely why Scarlett Jo will get an out- of-court settlement check for her lost compensation. Disney does not want its streaming data to be released publicly, which could happen if subpoenaed in a lawsuit. By making the lawsuit about lost money from box office sales that ended up in streaming revenue, the court will need to see streaming data to determine if that is where the money went. They will compare the Black Widow theatrical release revenue to other Marvel films, and if there is a comparable loss in theatrical release sales that matches an increase in streams on the platform, then Disney is in trouble. Disney has allegedly already conceded to use the streaming revenue from views of Black Widow on its platform to fairly compensate Scarlett Jo, but Disney won’t release its official numbers. So, they are basically saying take our word for it—which in Hollywood is laughable. But should the judge issue a court order for the information, then they will have to produce it. If so ordered, Disney will argue to have the information sealed as that data presents a HUGE competitive advantage, not just over streaming platforms, but over studios as well. Streaming platforms are able to see who their audience is on a much more granular level than studios. Being able to see who consumes what type of content through users’ account profiles provides a much more detailed picture for predicting how well a film will do than focus groups, or whatever method studios use. This data helps streaming platforms more efficiently fund film/tv projects with less risk and increased predict- ability of profitability. Eliminating risk for funding films is a cornerstone of the industry. Big budget ($200M+) action movies seem to have the most consistent returns, and that is why we have 9 Fast and the Furious movies, 7 Transformers , countless Godzilla and King Kong remakes, and an entire Marvel Universe. Scarlett Jo will absolutely get compensated by bringing this lawsuit, but we will likely see many more lawsuits just like this one where plaintiffs will use the threat of having to release streaming data as leverage to force payouts from streaming platforms.
By making the lawsuit about lost money from box office sales that ended up in streaming revenue, the court will need to see streaming data to determine
if that is where the money went.
O n July 29, 2021, Scarlett Johansson (“Scarlett Jo”) filed a lawsuit against Disney for breach of contract regarding the BlackWidow release. Scarlett Jo alleges Disney simultaneously released her film Black Widow on Disney Plus and in theaters, intentionally to increase user engagement for Disney Plus, and decrease her compensation from box office sales. Even if Disney was excused (legally) from doing an exclusive theatrical release of Black Widow because of COVID-19, Scarlett Jo will still likely get an out of court settlement from Disney, because Disney does not want its streaming subscriber numbers and streaming revenue disclosed publicly. Scarlett Jo’s contract was negotiated for a wide the- atrical release where Black Widow would be shown on no less than 1,500 screens. However, the language did not include any mention of an “exclusively theatrical re- lease”. Though it was very common for the terms to be interpreted as exclusively theatrical release in 2017 when the deal was done, the launch of Disney’s streaming platform—Disney Plus—could not have been con- templated back then, as Disney Plus officially launched November 2019.
Attorney Jerome Jackson
COVID-19 presented an interesting wrinkle to the scheduled June 2020 Black Widow release, because most states had local mandates that prohibited movie theaters from being open. So, it was arguably impracticable for Disney to have performed its part of the contract as they had originally agreed. Regardless of the initial delay, when Disney released the film in 2021, there was never any contractual mention of it being released on Disney Plus as well. With Scarlett Jo’s compensation being tied to the box office sales, by releasing simultaneously on a streaming service, Disney was short-changing Scarlett Jo. Disney allegedly came to Scarlett Jo about the hybrid release, but would not let her re-negotiate her compensation terms based on that new information. Even if they had, Disney (and every other streaming platform) are very tight- lipped about its streaming data (number of subscribers, streams per film/tv show, revenue generated per film/tv show, etc.).
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