Contract drafting takeaways from the scarlett johansson v. Disney lawsuit
One of the basic principles of contract drafting is ensuring all parties involved have reduced the agreed upon terms to writing within the contract in a clear and consistent manner. As you can imagine, this is important to avoid ambiguity in contract interpretation and to clarify the obligations and intentions of each party. After reading the complaint against Disney I have a strong suspicion that the contract between Marvel and Johansson has holes in it that should have been plugged prior to Johansson signing and prior even to COVID.
Scarlett Johansson’s attorneys have initiated a lawsuit against Disney alleging “Intentional Interference with Contractual Obligations” and “Inducing Breach of Contract”. Johansson is alleging that Disney, as the parent company of Marvel, caused the release of Black Widow on Disney+, their video streaming platform, breaching her contract with Marvel. She alleges Marvel promised the film would be released exclusively in box office with a portion of Johansson’s compensation being tied to box office sales. Releasing the film on Disney+ in addition to box office significantly impacts box office sales and Johansson’s compensation while enriching Disney.
While we haven’t seen the actual contract, and so can’t determine exactly what was promised to Scarlet Johansson, we do have access to the complaint. Reading the complaint a few things immediately raise my transactional attorney red flags:
"Ms. Johansson obtained from Marvel a valuable contractual promise that the release of the Picture would be a 'Wide theatrical release'. Both parties, as well as Disney, understood this meant that the Picture would initially be released exclusively in movie theatres, and that it would remain exclusively in movie theatres for a period of between approximately 90 and 120 days."
Relying on statements from such as “widely theatrical like our other pictures” made by Marvel’s chief counsel and settling for an implied meaning of “like our other pictures” to mean exclusive release in movie theaters for a period of 90 to 120 days was a mistake. I’ve always been told its better to be safe than sorry. As far as contracts go, it’s the drafting attorney’s job to analyze the possible risks and through clarify any vague and broad language in drafting the contract to mitigate risk. We do this by being extremely analytical and quite literally draining the meaning of everything and reducing it to very specific, clear and defined terms.
Why Johansson’s attorneys decided not to narrow the meaning of “widely theatrical” to “exclusively theatrical” as argued in the complaint, I do not know. But it does further demonstrate the extreme aforethought, care and consideration that must be given to contract drafting to protect your client’s interest, present and future; and the tremendous economic risk that could result when the meaning of parties’ intentions are not made clear and reduced in writing. This is important to close any loopholes.
It is worth mentioning that Johansson’s attorneys did reach out to renegotiate the terms and amend the contract once Marvel announced Black Widow would be released on Disney+, but Marvel did not respond and moved forward with the streaming release and box office release anyway.