In the motion, attorney Daniel Petrocelli also argues that Disney lived up to its obligation to give the film a “wide theatrical” release, but that nothing in the contract required the release to be exclusive to theaters.
Johansson filed a bombshell lawsuit on July 29, arguing that the decision to simultaneously release “Black Widow” in theaters and on Disney Plus cannibalized the film’s box office revenue and cost her tens of millions of dollars.
In the motion to compel arbitration, Petrocelli argued that “Black Widow” actually performed well, considering the ongoing pandemic. The film opened on July 9 and grossed $80 million domestically in its opening weekend — well below pre-pandemic Marvel standards, but $10 million more than Universal’s “F9” — which was an exclusive theatrical release.
“Black Widow” was a Premier Access release, meaning that it was available to Disney Plus subscribers for a $29.99 charge. Disney revealed in the motion that the film grossed $367 million worldwide at the box office through Aug. 15, plus another $125 million in streaming and download receipts.
Disney also notes that it agreed to add streaming receipts to the box office total for purposes of calculating Johansson’s backend participation, despite not being required under the contract to do so. The studio also attached portions of Johansson’s contract to the motion, though much of it — including the box office benchmarks required for backend compensation — was blacked out.
The contract dates from 2017, two years before the debut of Disney Plus, so its terms do not contemplate a streaming release. Johansson’s lawyers have argued that Marvel’s general counsel affirmed in 2019 that the studio would release the film “like our other pictures.”
Johansson’s suit alleges that Marvel breached her contract, but it does not state a plain breach of contract claim. Instead, attorney John Berlinski filed suit against Disney, the parent company, alleging that Disney had interfered with the subsidiary’s contract with Johansson in order to boost Disney Plus.
Petrocelli’s motion calls that “gamesmanship,” and argues that Johansson agreed to arbitrate all claims “arising out of, in connection with, or relating to” her contract with Marvel.
“Whether Periwinkle’s claims against Disney fall within the scope of that agreement is not a close call,” Petrocelli argues. “The plain and expansive language of the arbitration agreement easily encompasses Periwinkle’s Complaint.”
In response, Berlinski argued that Disney was afraid to litigate the case in the public eye.
“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,” Berlinski said in a statement to Variety. “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 Plus subscriptions. Yet that is exactly what happened — and we look forward to presenting the overwhelming evidence that proves it.”