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Disney is demanding that Scarlett Johansson’s suit over her Black Widow pay be moved to arbitration. The filings came near midnight on Friday evening in Los Angeles Superior Court. The company has also revealed that on Aug. 10, it initiated arbitration against her.
In her complaint, Johansson alleges her contract was breached when the superhero film was released on Disney+. The actress earns bonuses when Black Widow reaches certain box office performance markers, and she accuses Disney of not debuting the film exclusively in theaters because it “saw the opportunity to promote its flagship subscription service.”
Importantly, the deal for Johansson’s services was made with Marvel, not Disney, and she’s alleging that Disney induced its subsidiary Marvel to breach the contract. But while Johansson isn’t directly suing Marvel, Disney’s attorneys Daniel Petrocelli and Leah Godeski tell the court that an arbitration provision in that contract between Johansson’s loan-out, Periwinkle, and Marvel applies anyway.
“The plain and expansive language of the arbitration agreement easily encompasses Periwinkle’s Complaint,” states a motion to compel arbitration. “In a futile effort to evade this unavoidable result (and generate publicity through a public filing), Periwinkle excluded Marvel as a party to this lawsuit –– substituting instead its parent company Disney under contract-interference theories. But longstanding principles do not permit such gamesmanship.”
The move to push arbitration isn’t unexpected, and while Disney’s papers detail for the first time the exact language of the arbitration provision (see here), the company’s lawyers also make points that are less legally important at this juncture but will certainly attract notice.
For example, Disney says that Black Widow was put on more than 9,000 screens in the U.S., allegedly satisfying its obligation the film screen on no less than 1,500 (again, Johansson asserts it had to be exclusive), and according to the latest filing, as of Aug. 15, Black Widow has grossed more than $367 million in worldwide box office receipts and more than $125 million in streaming and download retail receipts.
Disney compares the Black Widow release to other films in the Marvel canon, saying that the opening weekend take was “more than that of many other Marvel Cinematic Universe films, including Thor: The Dark World; Ant-Man; Ant-Man and the Wasp; and Guardians of the Galaxy.”
“Notwithstanding the Picture’s impressive pandemic-era showing and the decision to credit Periwinkle with streaming and download receipts, Periwinkle was dissatisfied,” the motion continues.
Although probably not necessary at this juncture, the legal papers also take on Johansson’s contract theories and presentation of evidence, including one where a Marvel lawyer once told her deal lawyer in writing, “We totally understand that Scarlett’s willingness to do the film and her whole deal is based on the premise that the film would be widely theatrically released like our other pictures.”
“While Periwinkle tries to call that unambiguous contract language into question by citing a pre-pandemic, 2019 e-mail by a Marvel executive the communication merely confirmed Marvel’s intent to stand by the contract’s ‘wide theatrical release’ provision –– which Marvel ultimately did, notwithstanding the dramatically changed circumstances of a 2020-2021 global pandemic.”
That, of course, is open to interpretation. The question now — a not-entirely-unimportant one that may influence the course of future disputes — is whether it will be a judge or arbitrator doing the interpreting.
John Berlinski, attorney for Johansson, comments on Disney’s move: “After initially responding to this litigation with a misogynistic attack against Scarlett Johansson, Disney is now, predictably, trying to hide its misconduct in a confidential arbitration. Why is Disney so afraid of litigating this case in public? Because it knows that Marvel’s promises to give Black Widow a typical theatrical release ‘like its other films’ had everything to do with guaranteeing that Disney wouldn’t cannibalize box office receipts in order to boost Disney+ subscriptions. Yet that is exactly what happened — and we look forward to presenting the overwhelming evidence that proves it.”
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