The Contract Clause That Sparked Scarlett Johansson's Lawsuit Against Disney

B. The Agreement

21. The Agreement, dated May 9, 2017, sets forth the understanding between Periwinkle Entertainment, Inc. (referred to therein as “Lender”) and Marvel (referred to therein as “Producer”) concerning Ms. Johansson’s (referred to therein as “Artist”) services in connection with the Picture. Paragraph 2, titled “ENGAGEMENT,” states:

Lender shall furnish Producer the services of Artist to perform the role of ‘Black Widow’ / ‘Natasha Romanova’ in the theatrical motion picture currently entitled ‘Black Widow’ (‘Picture’). For the avoidance of doubt, if Producer in its sole discretion determines to release the Picture, then such release shall be a wide theatrical release of the Picture (i.e., no less than 1,500 screens).

(Emphasis added.)

22. At the time the Agreement was entered, it was well understood by the parties and Disney that a “theatrical release” referred to an exclusive release in theatres for an extended period of time that was roughly 90-120 days. With the exception of certain less-valuable, direct-to-video releases, it has long been custom and practice in the film industry for feature films to have at least a 90-day exclusive theatrical release before they are released on home video. Although some films have started to see shorter theatrical windows, Marvel Studios’ previous films have generally had theatrical windows consistent with the industry standard, and sometimes even longer. Specifically, Marvel Studios’ previous feature films had uninterrupted theatrical windows between 82 and 159 days, with an average uninterrupted window of 117 days. Of the seven Marvel Studios’ films in which Ms. Johansson starred prior to the Picture—for which Ms. Johansson also received certain bonuses tied to box office receipts—none had a theatrical window shorter than 96 days. And none included “day-and-date” releases on streaming platforms as would come to pass with Black Widow; rather, in connection with those films, it took six to eight months before Marvel Studios’ films would be available for streaming on an SVOD service like Disney+.

23. In further recognition of the importance of a traditional and exclusive theatrical release, the Agreement also grants Ms. Johansson “the right to full and meaningful consultation in good faith with [Marvel] as to the . . . initial release pattern of the Picture[.]”

24. These promises concerning the Picture’s release—including the language requiring a “wide theatrical release,” set forth on the very first page of the Agreement and in the same paragraph that establishes Ms. Johansson’s role and services—were material and essential to the Agreement. That is because in addition to certain fixed compensation, Ms. Johansson was to receive was deferred compensation and bonuses directly tied to the amount of worldwide box office (“WWBO”) receipts for the Picture. The greater the WWBO, the more Ms. Johansson stands to earn. In other words, Ms. Johansson’s compensation for the Picture hinges upon WWBO receipts—and, by extension, a traditional exclusive theatrical release, consistent with Marvel’s past theatrical releases, that would allow her to realize the full value of her bargain.