Disney’s ‘Black Widow’ settlement with Scarlett Johansson protected a ‘seismic shift’ in Hollywood: expert

Scarlett Johansson managed to strike a settlement last month in her lawsuit against Disney over the release and distribution of her film "Black Widow," in which the actress believed the company stifled potential box office revenues in favor of using the Marvel title to increase its Disney+ subscriber count.

Johansson sued the Walt Disney Co. over the company’s streaming release of "Black Widow," which she said breached her contract and deprived her of potential earnings as she maintained in her complaint that her contract guaranteed an exclusive theatrical release.

While the news of Johansson’s initial complaint might have been music to the ears of other stars of such films pondering whether to go a similar route, one leading film and entertainment expert believes that while Disney may have made a strategic move for its future in reaching an agreement with the "Avengers" actress, 36, the Mouse House likely protected other studios and distributors against a "seismic shift" in Hollywood.

The terms of the settlement are unclear. FOX Business has reached out to reps for Disney and Johansson for further comment.

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High-powered entertainment and IP attorney Tom Lallas – who represented the late comic book and Marvel legend Stan Lee before his death in 2018 and who is not involved in the case – told FOX Business in order for Johannson to have had any shot of prevailing against the unlimited pockets of Disney in litigation of any kind, her claim would have almost certainly hinged on the definition of "theatrical exclusivity" – a term broad enough to not include a clause for in a negotiation given the newness of how many films had to be distributed during the height of the pandemic.

"Johansson was pushing a giant boulder up to the top of the mountain in trying to prevail against Disney on this litigation for a variety of reasons that made her claims, if not dead on arrival – inherently suspect," Lallas said. "The contract wasn't with Disney. Her contract was with Marvel, so Disney had no direct liability to Johansson. Also, because Disney is a corporate parent for Marvel, Disney has a financial interest privilege that would allow Disney to do things, to authorize things and to intervene and interact in a way that Marvel perhaps couldn't do directly."

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Disney also used the same day-and-date release model for other flicks, such as "Cruella" and "Jungle Cruise."

Lallas maintained that based on how Johansson explained in the claim her disposition for why she potentially felt slighted by Disney’s release method of "Black Widow" in his estimation and based on the language presented in the initial case filing, "It's clear and readily apparent from her complaint that nowhere in the contract is theatrical exclusivity prior to release and distribution on other methods of viewing the content ever defined."

The lawyer said his operating assumption is that Johansson’s contract for the purpose of her claim against Disney "is flawed" given the presumption that the contract perhaps didn’t include a negotiated clause that said there will be a 60-, 90- or 120-day period of theatrical exclusivity that defined exclusivity at the front end before she felt the need to dispute the release of "Black Widow."

"Scarlett Johansson had a weak and doubtful claim that would, in all probability, have collapsed in a mild, if not strong, breeze," he said, adding that he believes Johansson and Disney "found a way to reach a settlement that gave them an ability to maximize their own business, professional and artistic interests, [avoid] prolonged litigation and my guess is that settlement did not involve any payment by Disney of any money or certainly any significant money, to Johansson."

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Johansson and the studio announced the "Tower of Terror" collaboration not long before the star filed her lawsuit, leaving questions as to whether the film based on the Disney theme park ride would still happen.

Furthermore, when Disney responded to Johansson’s initial claim regarding the release model for "Black Widow," it also clarified that she made $20 million for the film, and with the release of "Black Widow" on Disney+ with Premier Access "has significantly enhanced her ability to earn additional compensation on top of the $20M she has received to date."

Asked if Johansson might have looked at Disney’s maneuverability surrounding the release of "Black Widow" and its unwavering desire to bolster Disney+ and felt that she was merely a pawn in the chess game to pull in viewers, Lallas said the way he sees it, both sides likely played the leverage game knowing that their positions meant more to their respective professions and business models in potential future matters.

"The way this matter was settled – consistent with Disney litigation strategy and corporate policy was to preclude and prevent any seismic shift in anything," he explained. "It's just a matter of economic leverage, and there are very few actors or actresses who could walk into a conference room with the studio and be able to obtain a concession that would prevent the studio from reserving its right to release the feature film on any medium or platform that the studio believes would maximize the profitability of the film."

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Despite the settlement, Lallas said he believes the film studios and distributors still hold the upper hand over talent with regards to negotiating contract concessions. Lallas analyzes the situation as nothing more than Disney likely wanting to protect itself against any future similar claims and said that in deciding to settle with Johansson, it unintentionally protected and shielded the industry as a whole. 

"Look at it this way from the viewpoint of both Disney and Scarlett: There's nothing inherently evil in acting in your own self interests, however you may perceive them, and there are always collateral consequences," Lallas explained. "But there's no question that Disney, in resolving this dispute, was not looking at a single actress and a single picture but was looking at a universe of implications and created a structured resolution that would minimize the likelihood of what you call a seismic shift."

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Lallas remains confident that "we get past the pandemic" and "more consumers will patronize and go to movie theaters to view theatrical releases." He also believes that with Johansson’s complaint and subsequent settlement with Disney, a blueprint has been created for how studios and distributors can deal with similar instances moving forward.

"For one of the top five studios, there is an easy way to deal with this, and that is for everybody other than the top 1% of actors and actresses to include a clause in the contract that says there is no theatrical exclusivity and the producer or the owner and/or the studio has the right among other things, to the simultaneous release of the feature film motion picture, theatrically, digitally by streaming or through any other platform or media," Lallas laid out.

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"Theoretically, if Disney made a decision to pay Johansson some money after a lot of internal scrutiny and analysis, it would have concluded it was in Disney's interest to do so," he maintained. "But there are so many other ways to structure a settlement not involving the payment of money in order to prevent all of the other talent on the sideline from riding on her coattails and getting the benefit of her claim."