Reflection and Analysis

Theatrical Release (10/14/2021)

I am currently reading an article on The Hollywood Reporter by Eriq Gardner titled "Scarlett Johansson's 'Black Window' Lawsuit Is Game-Changing, But May Be Legally Weak" and I find myself shaking my head at what they've written because I majorly don't agree with what they're arguing in their said article, but I have to wonder – well, here is a direct quote regarding what she is suing for.

"In her complaint, Johansson bases her theory of a breached deal on a contract that states 'if a 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)."

Gardner is attempting to argue that, "the problem is that the contract doesn't explicitly say 'exclusive', and as far as industry custom and what was understood by the parties, that was before a pandemic disrupted pretty much everything."

Effectively, they're arguing that Disney is in the right simply because the word "exclusive" isn't used and that the pandemic gives Disney the right to not fulfill contractual agreements.

Regarding the lack of the word "exclusive", it doesn't matter that the word wasn't used within the contract because said contract spells out how the release is to be and that spelled out release is that it would be a theatrical release specifically with absolutely no stipulations regarding any other form of release, but for absolutely any change to the contract to be made, Disney must bring the contract to arbitration. Instead, it ended up being Johansson who brought the contract to arbitration.

Let's move onto the fact they're arguing that the pandemic is an excuse to renege on ones contractual agreements.

It's absolutely not an excuse that would stand up in a court of law, or at least not when the system is doing what it's supposed to be doing. They argue that, "Disney can certainly defend itself by saying the decision to stream was warranted. In contract law, there's also a concept called "frustration of purpose" where the contractual duty is excused upon an unforseen event (hello, COVID-19) that impedes performance."

Except – it's not.

To quote Wikipedia's page on this particular concept, "a circumstance is not deemed to be a 'basic assumption on which the contract is made' unless the change in circumstances could not have been reasonably foreseen at the time the contract was made. As a result, it is rarely invoked successfully."

At first glance, it might seem like COVID-19 is something that could not have been reasonably foreseen, but there's more to this than something not being foreseen at the time the contract was made, being here that purpose is important. More specifically, the movie was made with the purpose of a theatrical release and that purpose could still be served. Disney can't legally tack on another purpose onto the contract without an arbitration regarding the matter.

This would have been different had the theatrical release not been possible, yet by the time they decided to release Black Widow they were able to do a theatrical release. Yet, even in circumstances where "frustration of purpose" was valid, such as movie theaters being closed being a reason for releasing the movie to stream rather than having a theatrical release, Disney is still obligated to pay for services rendered as said services were still being used.

Which in turn means the contract needs to be arbitrated to figure out how the actor or actress is going to be paid.

I bring this up, because Disney is effectively attempting to use the pandemic as an excuse to push it's streaming service, yet also cut back on how much they would have to pay an actor or actress who's contract is based on how well the movie does in theaters. They're probably not the only company trying to do this either. This is a problem particularly for unknown talent where they're more likely to get a shot if they sign a contract where they're paid based on how well they do.

In fact, I'd argue that the issue at hand isn't about Disney's right to release in the manner they are doing, but that actors and actresses should be fairly compensated for their work.

As for why this was made public – it completely has to do with the fact she is so well known within the industry that she can actually bring awareness to the fact companies like Disney – though to be honest, it's the only company I know of off the top of my head that is doing a simulcast release in both theaters and through streaming that isn't – well, you know, a company dedicated to streaming.

It's not okay.

Actually, the fact someone was being paid for how much the movie made with the theatrical release is another thing that indicates an exclusive release, but there's a reason there used to be a significant wait between the theatrical release and when it went to home video, with streaming now coming between. It was to respect the contracts of those who are paid this way, but Disney is effectively saying, "we've found a loop hole" and is trying to exploit it.

But, honestly, if it's not slated for home release it's not slated for streaming release either in regards for its initial purpose, nor should the pandemic be used to push the straight to streaming of content that is released in theaters which was happening even before the pandemic started.