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Disney Co.'s Covid excuse in Scarlett Johansson lawsuit is darkly comical and clearly flawed

Disney’s high ground has a lot of craters. The decision to release the film online evinces the company's concern — for its own bottom line.

Just because Scarlett Johansson is rich doesn’t make her the villain in her case against the Walt Disney Co. In fact, if the allegations in her lawsuit are correct, she’s absolutely right to push back in court. Yet Disney, ever adept at storytelling and images, has tried to paint her as selfish and money-grubbing for trying to hold them to the deal she believes they made with her.

Whether someone is making $20 million per movie or $20 per hour, a deal is a deal. One party cannot breach a contract and then claim it’s OK because the injured party is rich.

According to a lawsuit Johansson filed against Disney, her compensation for her starring role in Marvel Studio’s new film “Black Widow” was to be based largely on “box office” receipts. Marvel, a subsidiary of Disney, also allegedly promised a “theatrical release,” which Johansson says meant a release exclusive to movie theaters.

Johansson claims Disney knew about these promises, but still directed Marvel to release “Black Widow” on the Disney+ streaming service the same day it was released in movie theaters. Disney’s press release noted that the movie grossed more than $60 million on Disney+ Premier Access in its first weekend alone.

The complaint claims those millions of fans were pulled away from the theater, and millions of dollars were pulled away from Johansson. Because her compensation was tied to box office receipts, Disney’s release decision apparently cost her significant compensation.

Disney defended its streaming move by pointing to Covid — and accusing Johansson of endangering people who wanted to avoid catching the virus by watching the movie at home. “There is no merit whatsoever to this filing,” Disney said in a statement. “The lawsuit is especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the Covid-19 pandemic.” Disney then made sure to refer to “the $20 million she [Johansson] has received to date.”

This strategy seems to have somehow worked on some people, who are openly criticizing Johansson’s lawsuit as both insensitive and avaricious. As Rebecca Kaplan wrote at (not associated with or endorsed by Marvel or Disney): “Johansson’s lawsuit doesn’t take into consideration the many disabled and otherwise high risk fans who would not have been able to see the movie yet if it were only in theaters … she’s only thinking about her paycheck, not about the ‘justification’ for Disney’s decision in the midst of a global pandemic.”

So wait, Scarlett Johansson is the greedy one? Whether someone is making $20 million per movie or $20 per hour, a deal is a deal. One party cannot breach a contract and then claim it’s OK because the injured party is rich. Especially if the breaching party is really, really rich, like Disney is.

Disney’s claim that it released “Black Widow” on Disney+ because it was so worried about public safety also rings a little hollow when the same decision netted the company millions of dollars. Industry executives told the Hollywood Reporter that Disney+ “cannibalized” the box office receipts of the movie, not only denying Johansson revenue but avoiding having to split ticket sales with theater owners.

Yet the company is painting its star as the unsympathetic diva. The reference to the “the $20 million she has received to date” wasn’t crowbarred into its public statement by accident. It’s a subtle barb, seemingly engineered to turn working folks against her, including folks who could end up on a jury.

And it’s not like the Covid defense holds water. Disney will probably claim that Marvel’s obligation under the original 2017 contract with Johansson is excused because of the legal doctrine of impossibility, which would indeed discharge Marvel or Disney if a supervening event made performance impossible and no one foresaw that event when the contract was signed. But to work, the argument has to be that the pandemic rendered its performance impossible — and the performance really has to be impossible under the legal standard; it can’t just be difficult or improbable.

Courts have held that the Covid-19 pandemic “does not conclusively establish the defense of impossibility ... particularly given the overlapping and sometimes contradictory state and local regulations, and evolving standards, for dealing with the virus.”

In other words, it wasn’t impossible for Marvel to release the film in theaters. It might have been riskier during a pandemic to release it in theaters, but that doesn’t mean it was impossible. In fact, there’s no way it could be “impossible” because the film actually was released in theaters.

Disney’s high ground also has a lot of craters in it. If the defendants here were really concerned about the health risks of a theatrical release, why release it in theaters at all? The decision to release the film online evinces Disney’s concern — for its own bottom line.

Not that I’m complaining about Disney+’s success. Almost everything “plus” in the streaming world these days is worth the money. We’re all happy to pay for streaming services, and the streaming services are happy to have our credit card numbers. That’s how contracts work. Just because the streaming services have a lot more money than us, the subscribers, doesn’t mean the streaming services are the bad guys, either.

If Disney did breach or interfere with Johansson’s contract, it doesn’t matter that she’s rich. And if Disney made many more millions by their Disney+ release, it’s hard to believe they did it to protect you and me.