“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,” said the Oscar nominee’s main lawyer John Berlinski today after the House of Mouse’s response to Johansson’s scathing profits lawsuit went public.
“Why is Disney so afraid of litigating this case in public?,” added the Kasowitz Benson Torres LLP attorney in what has become a Cuban Missile Crisis level war of words.
“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,” Berlinski adds, as Disney insists Marvel’s contract with Johansson provides for arbitration exactly in the event of a dispute like this one that erupted on July 29. “Yet that is exactly what happened – and we look forward to presenting the overwhelming evidence that proves it.”
Whether or not Bryan Lourd and Johansson’s reps at CAA weigh in too is TBD, but clearly no one’s afraid of pushing the button(s) now.
PREVIOUSLY, 8:15 AM: The House of Mouse has tried to blunt the Black Widow’s bite, as expected.
In a witching hour filing last night, the Walt Disney Company took Scarlett Johansson to task for daring to make her financial dispute with them over Black Widow public. The Marvel parent company is demanding the whole thing go behind closed doors on the East Coast ASAP.
“Periwinkle agreed that all claims ‘arising out of, in connection with, or relating to’ Scarlett Johansson’s acting services for Black Widow would be submitted to confidential, binding arbitration in New York,” says the motion filed in LA Superior Court on Friday by Disney’s outside lawyers Daniel Petrocelli, Leah Godesky and Tim Heafner of O’Melveny & Myers LLP against Johansson and her company (read it here).
“Whether Periwinkle’s claims against Disney fall within the scope of that agreement is not a close call: Periwinkle’s interference and inducement claims are premised on Periwinkle’s allegation that Marvel breached the contract’s requirement that any release of Black Widow include a ‘wide theatrical release’ on ‘no less than 1,500 screens,” the 23-page motion adds, taking a direct swipe at the obvious Achilles’ heel of the longtime Marvel star’s July 29 filed suit. “The plain and expansive language of the arbitration agreement easily encompasses Periwinkle’s Complaint.”
Then, in the kind of language that Petrocelli’s clients like to see and mirroring Disney’s initial response to Johansson’s July 29 legal action, the O’Melveny & Myers attorneys get a little rough.
“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,” they lash out. “But longstanding principles do not permit such gamesmanship.”
What makes this tough talk a bit cringe worthy is the fact Johansson is currently in production overseas on the latest Wes Anderson pic. A yet-to-be-titled project that will be released net year by Disney subsidiary Fox Searchlight.
Still, Disney want a October 15 hearing in DTLA on the arbitration matter.
The company’s formal response last night also reveals that they and another subsidiary Marvel “on August 10, 2021, Marvel and Disney served on Periwinkle a demand for confidential arbitration in New York.” Johansson’s Kasowitz Benson Torres LLP team has not responded to that demand yet, according to Disney.
On the other hand, Disney did respond last night officially to Johansson and her lawyers’ interpretation of her contract with Marvel. Specifically, having seen execs Bob Iger and Bob Chapek’s payouts out in the actor’s legal action, the company and its hired muscle center on what putting the repeatedly pandemic delayed Black Widow on streamer Disney+ as well as on the big screen when the Cate Shortland directed film was finally released on July 9.
Paid $20 million upfront (as Disney harshly reveled back on July 29) for Black Widow, Johansson has claimed she was promised “a release that is exclusive to movie theatres.”
After Chapek himself took a dig at Johnasson’s suit in the company’s latest earnings call on August 12, Disney now officially and firmly say their one-time, long-time star has it wrong.
“Although Marvel and Disney share Periwinkle’s frustration with the challenges associated with releasing films during an ever-shifting public-health crisis, Periwinkle’s claims that Marvel breached the Agreement and Disney induced that breach or otherwise interfered with the Agreement have no merit,” last night’s motion states. “There is nothing in the Agreement requiring that a ‘wide theatrical release’ also be an ‘exclusive’ theatrical release.”
“The contract does not mandate theatrical distribution––let alone require that any such distribution be exclusive,” it goes on to say. “Moreover, the contract expressly provides that any theatrical-distribution obligations are satisfied by distribution on “no less than 1500 screens.” And even though Black Widow’s release coincided with a global public-health crisis, Marvel made good on its promises.”
And,there was apparently more cash on offering.
In fact, as both sides attempt to craft the official record, Disney emphasis that even though Johansson’s suit says the actor who has portrayed super spy Natasha Romanoff for over a decade said she was pretty much blindsided by the decision to go for a multi-platform release because of the pandemic, they were straight up with her and her CAA reps.
“Marvel discussed the hybrid-release-pattern decision with Johansson in spring 2021, as the parties were conferring regarding the Picture’s release date,” they say in the August 20 filing. “Marvel has assured Johansson that she will be credited with 100% of the Premier Access and PEHV receipts for purposes of the box-office thresholds used to calculate any additional compensation – even though Marvel has no obligation under the Agreement to do so.”
To solidify that point, Disney cracked open the door a bit on how much Black Widow has actually made – specifically on Disney+, where subscribers could gain “premium access” on release day for an extra $30.
“As of August 15, 2021, the Picture has grossed more than $367 million in worldwide box-office receipts and more than $125 million in streaming and download retail receipts.”
For those of you who love a good horse race and/or math, Disney have added Black Widow‘s opening weekend domestic haul of just under $80 million to its admittedly very strong $55 million opening weekend on Disney+ for a grand US-only total of $135 million. Or, as they say “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” made in their respective opening days.
A factoid you can expect to hear over and over as long as this matter remains in the public eye, for however long that is.