The temperature in the legal battle between Disney and Scarlett Johansson over her compensation for “Black Widow” has not cooled in the week since Johansson’s lawsuit was filed in Los Angeles Superior Court.
Longtime Disney attorney Daniel Petrocelli told Variety that the demands in Johansson’s litigation are far out of the bounds of the actor’s contract with the studio. He characterized it as an attempt to force Disney to write a check that backfired.
“It is obvious that this is a highly orchestrated PR campaign to achieve an outcome that is not obtainable in the lawsuit,” Petrocelli said. “No amount of public pressure can change or obscure the explicit contractual commitments. The written contract is clear as a bell.”
Meanwhile, in another sign that the conflict has touched a nerve at a time of uncertainty for the industry, SAG-AFTRA president Gabrielle Carteris weighed in on Friday with a lengthy statement blasting Disney. She said Disney should be “ashamed” and criticized the “gendered-tone” of the company’s statement on the suit last week.
“Scarlett Johansson is shining a white-hot spotlight on the improper shifts in compensation that companies are attempting to slip by talent as distribution models change,” Carteris said. “Nobody in any field of work should fall victim to surprise reductions in expected compensation. It is unreasonable and unjust. Disney and other content companies are doing very well and can certainly live up to their obligations to compensate the performers whose art and artistry are responsible for the corporation’s profits.”
Moreover, Carteris cast the dispute as an issue of gender pay parity in Hollywood.
“Women are not ‘callous’ when they stand up and fight for fair pay – they are leaders and champions for economic justice,” she said. “Women have been victimized by pay inequity for decades, and they have been further victimized by comments like those in Disney’s press statements. These sorts of attacks have no place in our society and SAG-AFTRA will continue to defend our members from all forms of bias.”
Petrocelli, a partner at O’Melveny, told Variety the contract calls for the sides to go to arbitration for disputes rather than open court. But even that point may be in some dispute because Johansson’s contract is with Marvel Studios but the lawsuit was filed against Disney on the legal thesis that Disney’s corporate priorities to support its new streaming platforms were imposed on Marvel.
Johansson’s pact calls for “Black Widow” to be released on a minimum of 1,500 screens, which Disney more than met on 9,000 U.S. screens and 30,000 worldwide, Petrocelli said. More than once, he stressed that the distribution decisions entirely rest with the studio and that a day-and-date strategy was necessary because of the global pandemic’s devastating impact on traditional moviegoing.
The crux of the Disney-Johansson dispute is the latter’s assertion that the decision to make “Black Widow” a day-and-date release in theaters and online via the Disney Premier Access platform had the effect of short-changing Johansson on the bonuses she was to receive if the film hit certain box-office thresholds. The simultaneous release strategy limited the movie’s prospects at the box office, and thus denied Johansson the chance to achieve those pre-determined bonuses, in Johansson’s view.
Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses. Disney Premier Access charged $29.99 for “Black Widow.” Disney shares some portion of that revenue with distribution partners such as Verizon, but whatever the studio’s share is will be factored into bonus calculations for actors, he said.
“We treated Disney Premier Access (revenue) like box office for the purposes of the bonus requirements in the contract. That only enhanced the economics for Ms. Johansson,” Petrocelli said.
Johansson’s legal team has asserted that Disney was unresponsive in its efforts to address the dispute in the months leading up to the film’s July 9 premiere, which was twice delayed by pandemic conditions. Disney has strongly asserted that Johansson’s team gave them no warning that the explosive filing was coming on July 29. Sources close to Johansson’s team dispute that vehemently, saying there was ample warning to the point of alerting Disney executives that a complaint had already been drafted.
In a statement, Johansson lawyer John Berlinski criticized Disney’s initial statement about the lawsuit last week as a “bullying and misogynistic personal attack against Scarlett Johansson” and said that Petrocelli’s comments were “a desperate attempt” at image rehabilitation.
“But Disney’s lawyers cannot erase the company’s earlier public statements, the terms of Ms. Johansson’s contract, the history of what actually led to this lawsuit, or the implications of its behavior on the talent community at large,” Berlinski said. “If Disney genuinely believed what its lawyers now claim, it would welcome having the dispute decided in open court, instead of angling to hide its misconduct from the public in a confidential arbitration.”
Berlinski, a partner at Kasowitz Benson Torres, and Petrocelli are no strangers to each other. The two were on opposite sides of the fight that actors and producers of the Fox drama series “Bones” waged against 21th Century Fox from 2015 to 2019. In 2019, before Petrocelli joined the case, Berlinski secured a mammoth $179 million judgment from an arbitrator. Then the case went back to open court, when Petrocelli was tapped to represent Fox, and the award was cut to $51 million. Although both camps vowed to appeal, a settlement was reached in September 2019.
In the case of “Black Widow,” Petrocelli criticized Johansson’s litigation as short-sighted given the extraordinary conditions created by the COVID-19 pandemic. Given the tens of millions of dollars invested in “Black Widow,” Disney had no choice but to look for innovative solutions to distribute the movie.
“You had an unexpected COVID crisis and the studio was trying to accommodate millions of fans who are nervous and not comfortable going inside theaters,” Petrocelli said. “All studios have had to adjust.”
Petrocelli acknowledged that the conflict is heightened by playing out against the larger backdrop of an industry in transition. The nitty-gritty details of talent contracts and compensation formulas haven’t kept up with the changes in how movies and TV shows are produced and distributed.
Petrocelli predicted that in the near future talent deals will “become much more specific about the requirements for any contingent compensation.” The longtime legal warrior added, “There’s a sea change because of the advent of the internet and the ability to put things out online. This will take time to resolve.”
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