The "Black Widow (2021)" Film Thread - SPOILERS!!! Now Out On Home Video Sept 14

[pg1067]

Thank you for the very insightful (and investigative) commentary.  If the agreement didn't specifically outline "exclusive" around the theatrical release, then (imo) the ground is pretty shaky for ScarJo.  I will admit, I was taking her claims in the 'reporting' at face value.  Their accuracy (or potential lack thereof) does have some sway with my opinion on the matter.

By way of perspective (and I only say this because this much is public information), back in the mid-2000s, Mel Gibson's company, Icon Productions, sued Regal Entertainment Group over the division of proceeds from exhibitions of the movie The Passion of the Christ.  Icon alleged that it and Regal had agreed to "studio terms."  According to Icon, this meant somewhere in the 55-65% range.  Regal's position was that the agreement was for a more standard deal for what was, at the time the deal was being made, an indie, foreign-language movie.  Obviously, at the time the deal was made for Regal to exhibit the movie, no one knew or reasonably believed it would become, at one time, the third highest grossing movie in history (which is pretty amazing considering it's now down around #160).  Unfortunately, there wasn't even a written contract in that case, which led to both sides spending a shload on attorneys' fees for about a year and a half before -- you guessed it -- finally settling after a mediation.

I don't think that case really had any far-reaching implications in the business (although I expect it changed some of Regal's business practices), but I agree that this Black Widow case might have that sort of impact.

[Stadler]

Thank you for the very insightful (and investigative) commentary.  If the agreement didn't specifically outline "exclusive" around the theatrical release, then (imo) the ground is pretty shaky for ScarJo.  I will admit, I was taking her claims in the 'reporting' at face value.  Their accuracy (or potential lack thereof) does have some sway with my opinion on the matter.

PG makes a good point though, that it's not a simple, cut-and-dry matter of "if it says exclusive then it is, if it didn't then it isn't". Common industry practice when it comes to definitions and protocols can definitely be argued to be implicit in a contract even where not explicitly stated. Whether that's the case here I have no idea - the plaintiffs are clearly arguing that it does, but whether a court would agree with that (if it ever got to that stage) would, as PG says, depend on the testimony of experts which might very well be split and inconclusive, unless there is any clear legal precedent.

But, to you and to Jingle, what the contract DOES say - clear or not - is far more at issue than what ScarJo claims in her petition.  I didn't "ignore" what she said, I just took it at the value it deserved, i.e. one of two probably very different points of view of the SAME LANGUAGE.   Blue shirts.

[ariich]

Thank you for the very insightful (and investigative) commentary.  If the agreement didn't specifically outline "exclusive" around the theatrical release, then (imo) the ground is pretty shaky for ScarJo.  I will admit, I was taking her claims in the 'reporting' at face value.  Their accuracy (or potential lack thereof) does have some sway with my opinion on the matter.

PG makes a good point though, that it's not a simple, cut-and-dry matter of "if it says exclusive then it is, if it didn't then it isn't". Common industry practice when it comes to definitions and protocols can definitely be argued to be implicit in a contract even where not explicitly stated. Whether that's the case here I have no idea - the plaintiffs are clearly arguing that it does, but whether a court would agree with that (if it ever got to that stage) would, as PG says, depend on the testimony of experts which might very well be split and inconclusive, unless there is any clear legal precedent.

But, to you and to Jingle, what the contract DOES say - clear or not - is far more at issue than what ScarJo claims in her petition.  I didn't "ignore" what she said, I just took it at the value it deserved, i.e. one of two probably very different points of view of the SAME LANGUAGE.   Blue shirts.

That's how I've taken it throughout as well, since my first post on the matter. But per some of my other posts, I (and others) have been discussing both the legal situation and, separately, wider considerations about what we think is the decent thing to do regardless of the legalities. I understand that you feel the two are or at least could/should be the same, but some of us don't and so have wanted to discuss both.

[Stadler]

Thank you for the very insightful (and investigative) commentary.  If the agreement didn't specifically outline "exclusive" around the theatrical release, then (imo) the ground is pretty shaky for ScarJo.  I will admit, I was taking her claims in the 'reporting' at face value.  Their accuracy (or potential lack thereof) does have some sway with my opinion on the matter.

PG makes a good point though, that it's not a simple, cut-and-dry matter of "if it says exclusive then it is, if it didn't then it isn't". Common industry practice when it comes to definitions and protocols can definitely be argued to be implicit in a contract even where not explicitly stated. Whether that's the case here I have no idea - the plaintiffs are clearly arguing that it does, but whether a court would agree with that (if it ever got to that stage) would, as PG says, depend on the testimony of experts which might very well be split and inconclusive, unless there is any clear legal precedent.

But, to you and to Jingle, what the contract DOES say - clear or not - is far more at issue than what ScarJo claims in her petition.  I didn't "ignore" what she said, I just took it at the value it deserved, i.e. one of two probably very different points of view of the SAME LANGUAGE.   Blue shirts.

That's how I've taken it throughout as well, since my first post on the matter. But per some of my other posts, I (and others) have been discussing both the legal situation and, separately, wider considerations about what we think is the decent thing to do regardless of the legalities. I understand that you feel the two are or at least could/should be the same, but some of us don't and so have wanted to discuss both.

Then can someone explain how a multi-billion dollar corporation just giving money to a multi-million dollar actress in contradiction to the contract - remember, we ALL enter into tens of contracts every day and RELY on the other person to stick with what they say they are going to do, not some arbitrary unilateral determination of "what's the right thing to do" - is in fact "the right thing to do"?  Why should we promote the expectation that the contract doesn't matter and we don't have to be precise in our language, or be clear in our intent?  Or that we can or should bully the other side into giving us what we want regardless of what we all negotiated at arms length at day 0? 

I'm not just disagreeing that it's "both", I'm saying something slightly different:  it's NOT the right thing to do.  It's like looking at one frame of a movie and deciding whether it's "good" or not.

[ariich]

Then can someone explain how a multi-billion dollar corporation just giving money to a multi-million dollar actress in contradiction to the contract - remember, we ALL enter into tens of contracts every day and RELY on the other person to stick with what they say they are going to do, not some arbitrary unilateral determination of "what's the right thing to do" - is in fact "the right thing to do"?  Why should we promote the expectation that the contract doesn't matter and we don't have to be precise in our language, or be clear in our intent?  Or that we can or should bully the other side into giving us what we want regardless of what we all negotiated at arms length at day 0? 

I'm not just disagreeing that it's "both", I'm saying something slightly different:  it's NOT the right thing to do.  It's like looking at one frame of a movie and deciding whether it's "good" or not.

Lots to respond to here.

1. I agree with you that the context here is about a multi-millionaire and a multi-billion dollar corporation, so it's not that big a deal in the grand scheme of things, but that doesn't mean it's not worth discussing and still taking seriously.

2. I don't think anyone is saying Disney should "contradict" the contract, we're suggesting they could go beyond it.

3. I also don't think anyone is saying Disney should be "just giving money" over. We're suggesting they could and probably should have been discussing a fair cut of the Disney+ Premier revenue, instead of releasing it there and keeping every penny for themselves (which to be clear, I don't know if that is exactly the case, but it is implied by the legal case).

4. I'm going to very strongly disagree with the implication that because "we ALL enter into tens of contracts every day and RELY on the other person to stick with what they say they are going to do", this means it's never good or decent or fair to do *more* than we say we are going to do, or legally have to do. Everyday life is full of examples of that happening. Your post implies (perhaps inadvertently) that the right thing to do is only the minimum of what we say we will, and nothing more.

5. In this particular circumstance, the agreement between Disney and ScarJo was made before the pandemic, when there was simply no precedent for a major blockbuster release also being widely available on a different medium at the same time. As PG said above, in terms of the legal case, it's possible from this lack of precedent it could be argued that the wording in the contract was or should have been understood by all parties as having a particular meaning, but perhaps not. My point away from the legal case is that, either way, there's unlikely to be anything in the contract to stop Disney from making a further payment or specifically negotiating an additional bonus based on Disney+ receipts, given this was a different process not foreseen when the original contract was agreed.


Just as a thought experiment, let's imagine that you and I regularly pitch in $20 each, get some drinks in and shoot the breeze. In theory we could get any drinks in, but we always get the same beers as we know we both like them. This time though, I took our $40 to the store but our usual beers were sold out. I didn't call you to see what you wanted instead, I just went ahead and bought a bottle of single malt Scotch, even though I'm aware you don't really like Scotch (I have no idea what your drinks tastes actually are, this is just a thought experiment). You end up having a couple of shots but don't really like it, so I have most of the bottle.

Do I have to do anything? No. We followed our usual agreement, which is to split the costs and for one of us to go and buy some drink. But I would feel like an absolute dick for doing that. What I most likely would have done was call you to see what you wanted, or if for some reason I didn't or couldn't then I'd have tried to get something similar to our usual or at least that I thought we'd both like. And in the event that I had just gone ahead and come back with something that you got less out of, I'd probably have offered a resolution such as I cover the full cost this time, or you get to choose the drink next time.

[Zantera]

The only way this is gonna end is with Disney giving her some money. How much and how long before they reach that point is up for debate I suppose.

[ariich]

The only way this is gonna end is with Disney giving her some money. How much and how long before they reach that point is up for debate I suppose.

Which, at a guess, might well be all she's looking for, and that the whole breach of contract issue is essentially a negotiating position.

[Stadler]

Lots to respond to here.

1. I agree with you that the context here is about a multi-millionaire and a multi-billion dollar corporation, so it's not that big a deal in the grand scheme of things, but that doesn't mean it's not worth discussing and still taking seriously.

I wasn't suggesting that it wasn't worth discussing, I was suggesting that there's no moral requirement here (if this was a case where someone was hoarding food and people were dying as a DIRECT RESULT of that hoarding, there might be a different answer).  This is purely about the sanctity of contract, and the need for all of us to be able to rely on what we in the business call "the four corners of the contract".   

2. I don't think anyone is saying Disney should "contradict" the contract, we're suggesting they could go beyond it.

Sorry to sound like a six year old, but "why"? 

3. I also don't think anyone is saying Disney should be "just giving money" over. We're suggesting they could and probably should have been discussing a fair cut of the Disney+ Premier revenue, instead of releasing it there and keeping every penny for themselves (which to be clear, I don't know if that is exactly the case, but it is implied by the legal case).

Why?  Why should Disney guess/assume/presume that there is some unstated desire here that THEY have to meet?  And what does this do for the precedent of future interpretations of contract?    I think it's being forgotten here that every act, every action here has impacts BEYOND the immediate discussions at hand.  The contract isn't what we can ASK, it's what we can DEMAND, and any changes to that are arguably binding moving forward.    Obviously some contracts are more complicated than others, but at their heart they are simple:  offer, acceptance (a "meeting of the minds") and performance.   It's the framework under which society works, not just "legally", but practically.

And why is THIS the "right" thing to do?  Why isn't the "right" (by the way, in quotes because I think this is an arbitrary and subjective determination; I don't at ALL think this is the right thing to do) thing to do for ScarJo to forego her INDIVIDUAL profits in favor of the COLLECTIVE, the company, given that the likelihood is that with the higher profitability there is a far greater chance that there will be additional films, providing income and jobs for 1,000's of people in the company, 10's of thousands of people ancillary to the movie industry, and perhaps even more when you get into the 1,000's of theaters that will show the film.   

4. I'm going to very strongly disagree with the implication that because "we ALL enter into tens of contracts every day and RELY on the other person to stick with what they say they are going to do", this means it's never good or decent or fair to do *more* than we say we are going to do, or legally have to do. Everyday life is full of examples of that happening. Your post implies (perhaps inadvertently) that the right thing to do is only the minimum of what we say we will, and nothing more.

I'm not saying that; I am saying that it's never good or decent to DEMAND OTHERS to act in what we feel is "decent" or "right".   I guess we're going to devolve into "it's my opinion", and we disagree on that as well since I don't believe opinions are sacred, but the nature of a contract is the meeting of the minds of TWO ENTITIES.   There IS no "decent" or "right" in that context, since - with few exceptions - we're not parties to it.  (By the way, this is what LAWS are for; this is why we elect representatives to pass laws that work for all of us in terms of what we feel "policy" should be).

5. In this particular circumstance, the agreement between Disney and ScarJo was made before the pandemic, when there was simply no precedent for a major blockbuster release also being widely available on a different medium at the same time. As PG said above, in terms of the legal case, it's possible from this lack of precedent it could be argued that the wording in the contract was or should have been understood by all parties as having a particular meaning, but perhaps not. My point away from the legal case is that, either way, there's unlikely to be anything in the contract to stop Disney from making a further payment or specifically negotiating an additional bonus based on Disney+ receipts, given this was a different process not foreseen when the original contract was agreed.

But why would they opt for that?  Whose interest does that serve, other than ScarJo?  Does that REALLY serve the collective best interest?    Because despite your (and Jingle's) accusations, I'm not looking at this purely legally.  I'm also looking at this behaviorally.   What happens in the future?  What happens when the NEXT big breakthrough comes?  Let's say in 2025 there is "Black Widow: Brown Recluse" in production, and just before release, there is the Romeo variant of COVID, and oh-by-the-way, Disney has new technology that beams the movie right into your frontal cortex.   Do we want Disney releasing that for the benefit of society, or do we want them saying "well, let's sit on this until after the release of this because we don't want to after-the-fact have to pay ScarJo 30 Brazilian dollars because we did it last time because "it was the right thing to do".   We don't, as a matter of public policy, want that to be the decision process do we?  Isn't that already how it works, to great detriment and consternation, in the pharmaceutical industry?

Just as a thought experiment, let's imagine that you and I regularly pitch in $20 each, get some drinks in and shoot the breeze. In theory we could get any drinks in, but we always get the same beers as we know we both like them. This time though, I took our $40 to the store but our usual beers were sold out. I didn't call you to see what you wanted instead, I just went ahead and bought a bottle of single malt Scotch, even though I'm aware you don't really like Scotch (I have no idea what your drinks tastes actually are, this is just a thought experiment). You end up having a couple of shots but don't really like it, so I have most of the bottle.

Do I have to do anything? No. We followed our usual agreement, which is to split the costs and for one of us to go and buy some drink. But I would feel like an absolute dick for doing that. What I most likely would have done was call you to see what you wanted, or if for some reason I didn't or couldn't then I'd have tried to get something similar to our usual or at least that I thought we'd both like. And in the event that I had just gone ahead and come back with something that you got less out of, I'd probably have offered a resolution such as I cover the full cost this time, or you get to choose the drink next time.

As would I (feel like a dick, that is).   I would like to think I would do the same thing more or less.  But that's not a function of an arms length deal between two independent parties; I have too much of a need to be liked to ever make it more than a friendly discussion point.   The point is, you could just as easily say "suck it up, bitch, and drink it.  It'll put some much needed hair on your chest!" and the outcome is the same for everyone around us except for you and me.   You're doing, for yourself, what you think is the decent thing to do.   There's no right answer there.   The problem here is that we're projecting our "right" onto someone else. 

[Sebastián Pratesi]

This is purely about the sanctity of contract, and the need for all of us to be able to rely on what we in the business call "the four corners of the contract".   

This reminds me of something the great Mark Corrigan once said:

"This is the whole point about contract law. The whole point of a contract is to make sure that this kind of thing never happens".
https://youtu.be/BWMg3iDSQRw

[jingle.boy]

Ya gotta think that Warner/HBO are hoping like hell something gets ironed out amicably.  If things go to a settlement and NOT in favour of Disney, Warner/HBO is fucked with all the releases that go/went straight to HBO Max.

[pg1067]

Ya gotta think that Warner/HBO are hoping like hell something gets ironed out amicably.  If things go to a settlement and NOT in favour of Disney, Warner/HBO is fucked with all the releases that go/went straight to HBO Max.

Not sure what "a settlement . . . NOT in favor of Disney" means.  A settlement is a mutual agreement to resolve a dispute, and it is sometimes said that the best settlements are those in which neither side is happy with the result.  In any event, while some aspects of a settlement might become public, the financial terms almost certainly won't.  Also, you seem to be assuming that the powers that be behind HBO Max didn't make the sorts of agreements that Johansson alleged she sought with Marvel/Disney before Black Widow was released.  In fact, the complaint alleged that HBO had made an agreement with the stars of that Wonder Woman movie that got released on HBO Max last December and that she tried to get Marvel/Disney to make a similar agreement with her.

[lordxizor]

Ya gotta think that Warner/HBO are hoping like hell something gets ironed out amicably.  If things go to a settlement and NOT in favour of Disney, Warner/HBO is fucked with all the releases that go/went straight to HBO Max.

Not sure what "a settlement . . . NOT in favor of Disney" means.  A settlement is a mutual agreement to resolve a dispute, and it is sometimes said that the best settlements are those in which neither side is happy with the result.  In any event, while some aspects of a settlement might become public, the financial terms almost certainly won't.  Also, you seem to be assuming that the powers that be behind HBO Max didn't make the sorts of agreements that Johansson alleged she sought with Marvel/Disney before Black Widow was released.  In fact, the complaint alleged that HBO had made an agreement with the stars of that Wonder Woman movie that got released on HBO Max last December and that she tried to get Marvel/Disney to make a similar agreement with her.

Warner Brothers did essentially renegotiate the contracts with the people involved in the movies they put directly on HBO Max. But there is the difference that Disney made people pay extra for Black Widow on D+ and WB did not for the movies on HBO Max. It's very easy to see the financial gain Disney made my releasing it on D+, whereas the financial gain by HBO Max is pretty hard to quantify.

[jingle.boy]

Ya gotta think that Warner/HBO are hoping like hell something gets ironed out amicably.  If things go to a settlement and NOT in favour of Disney, Warner/HBO is fucked with all the releases that go/went straight to HBO Max.

Not sure what "a settlement . . . NOT in favor of Disney" means.  A settlement is a mutual agreement to resolve a dispute, and it is sometimes said that the best settlements are those in which neither side is happy with the result.  In any event, while some aspects of a settlement might become public, the financial terms almost certainly won't.  Also, you seem to be assuming that the powers that be behind HBO Max didn't make the sorts of agreements that Johansson alleged she sought with Marvel/Disney before Black Widow was released.  In fact, the complaint alleged that HBO had made an agreement with the stars of that Wonder Woman movie that got released on HBO Max last December and that she tried to get Marvel/Disney to make a similar agreement with her.

Didn't Disney's lawyer issue a statement along the lines of being willing to go to arbitration?  That's what I meant to suggest might go not in Disney's favour - sorry if it was unclear.

And I wasn't aware about WB renegotiating.

[hefdaddy42]

Yeah, Warner Brothers wound up renegotiating contracts with a ton of talent prior to releasing films day-and-date on HBO Max, for precisely this reason.  All of those films were produced to be theatrical release films (as was Black Widow).  No studio spends that kind of money on direct release films (direct to DVD/Bluray/streaming).  So when they were set to become, instead of theatrical release films, simultaneous release films (which, before COVID, was only done with indie films, never big studio projects), Warner Brothers would have been in breach of contract on every single one.

Black Widow was released day-and-date simultaneously to theaters and to Disney + Premiere Access, which involves a separate fee paid by the subscriber on top of the normal monthly fee.  It was only created during COVID, so would not have in any way been part of the original contract language between Disney and Johanssen.

If they don't settle, I can't see how she doesn't win.

[jingle.boy]

Part of WB's motivation was clearly to get a big splash from their subscriber count.  If D+ was just launching around April/May/June like HBO Max was, I can totally see them making BW just part of the catalogue (as WB did).  But because they'd had an 18-month period to build a subscriber base, no need to give it away as part of the subscription fee (like HBO did / had to).

[hefdaddy42]

Part of WB's motivation was clearly to get a big splash from their subscriber count.  If D+ was just launching around April/May/June like HBO Max was, I can totally see them making BW just part of the catalogue (as WB did).  But because they'd had an 18-month period to build a subscriber base, no need to give it away as part of the subscription fee (like HBO did / had to).

For sure.  But the point is that since they were changing their release method, they had to take care of their talent, and they did.  Disney didn't bother, apparently, at least with this film.

They had the same release for some other Disney properties, but they may not have involved the same kinds of contract provisions.

[pg1067]

Ya gotta think that Warner/HBO are hoping like hell something gets ironed out amicably.  If things go to a settlement and NOT in favour of Disney, Warner/HBO is fucked with all the releases that go/went straight to HBO Max.

Not sure what "a settlement . . . NOT in favor of Disney" means.  A settlement is a mutual agreement to resolve a dispute, and it is sometimes said that the best settlements are those in which neither side is happy with the result.  In any event, while some aspects of a settlement might become public, the financial terms almost certainly won't.  Also, you seem to be assuming that the powers that be behind HBO Max didn't make the sorts of agreements that Johansson alleged she sought with Marvel/Disney before Black Widow was released.  In fact, the complaint alleged that HBO had made an agreement with the stars of that Wonder Woman movie that got released on HBO Max last December and that she tried to get Marvel/Disney to make a similar agreement with her.

Didn't Disney's lawyer issue a statement along the lines of being willing to go to arbitration?  That's what I meant to suggest might go not in Disney's favour - sorry if it was unclear.

So...I just looked and found this article:  https://variety.com/2021/film/news/disney-scarlett-johansson-lawsuit-black-widow-1235036466/

I used to work with Disney's attorney.  He was lead counsel in the civil lawsuit against O.J. Simpson and is one of the most respected entertainment industry trial lawyers.

Anyway, the article indicates that the contract at issue contains an arbitration clause.  If they can get the case moved to an arbitration forum, that simply means that the proceedings won't be public.  Otherwise, it won't be any different.  If the parties settle, it will be largely private.  Also, there's some scathing commentary from Gabrielle from Beverly Hills 90210.

I also found this article:  https://www.hollywoodreporter.com/business/business-news/scarlett-johanssons-black-widow-lawsuit-1234990644/

It suggests that Johansson's primary motivation for suing was to make the suit public.  That's why she sued Disney (and not Marvel) for tortious interference with contract, as opposed to suing Marvel for breach of contract.  The article suggests that the relevant contract almost certainly has an arbitration clause (i.e., an agreement that any disputes arising out of the contract have to be resolved in arbitration, not in a court).  By suing for tortious interference, she's trying to get around that clause.  There are junior associates at O'Melveny & Myers (Disney's lawyers) researching the extent to which arbitration can be compelled.

The whole arbitration thing will be part of the preliminary punching I mentioned in prior posts, before the case inevitably gets settled privately.

[jingle.boy]

Love your insights man... very helpful for the lay person. 

[pg1067]

Love your insights man... very helpful for the lay person. 

My time in the salt mines is finally paying off!   

[Stadler]

Nice, PG.

I still see, though, that the assumptions are flying with respect to this case. Some of the things being said CANNOT be known without the contract in front of us (and in some of the assumptions, the OTHER contracts that the company has entered into).  And of course there is this (from PG's article):  "Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses."

And just for shits and giggles, if ScarJo WAS getting a cut of the Premier Access money is still suing - against the clause in the contract that requires arbitration, a well-respected and widely used (I'm in two arbitrations right now as we speak) dispute resolution method - why isn't she being compelled to "do the right thing"? 

[ariich]

Nice, PG.

I still see, though, that the assumptions are flying with respect to this case. Some of the things being said CANNOT be known without the contract in front of us (and in some of the assumptions, the OTHER contracts that the company has entered into).  And of course there is this (from PG's article):  "Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses."

And just for shits and giggles, if ScarJo WAS getting a cut of the Premier Access money is still suing - against the clause in the contract that requires arbitration, a well-respected and widely used (I'm in two arbitrations right now as we speak) dispute resolution method - why isn't she being compelled to "do the right thing"? 

If that's accurate, and the Premier revenues count as box office receipts, then as I said before, I would side with Disney.

[jingle.boy]

Nice, PG.

I still see, though, that the assumptions are flying with respect to this case. Some of the things being said CANNOT be known without the contract in front of us (and in some of the assumptions, the OTHER contracts that the company has entered into).  And of course there is this (from PG's article):  "Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses."

And just for shits and giggles, if ScarJo WAS getting a cut of the Premier Access money is still suing - against the clause in the contract that requires arbitration, a well-respected and widely used (I'm in two arbitrations right now as we speak) dispute resolution method - why isn't she being compelled to "do the right thing"? 

If that's accurate, and the Premier revenues count as box office receipts, then as I said before, I would side with Disney.

[Stadler]

To be fair, and consistent, I've said before you have to take what the individual parties say with a grain of salt but if you're going to consider ONE side, you have to consider the other, and there IS a right answer here.  They either are (as Disney says) or they are not (as Scarjo says).  We'll know soon enough, but this is just another example of why we can't make any real determinations from the chatter around a dispute, only the discrete facts of the dispute, which we don't have.

[hefdaddy42]

Nice, PG.

I still see, though, that the assumptions are flying with respect to this case. Some of the things being said CANNOT be known without the contract in front of us (and in some of the assumptions, the OTHER contracts that the company has entered into).  And of course there is this (from PG's article):  "Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses."

And just for shits and giggles, if ScarJo WAS getting a cut of the Premier Access money is still suing - against the clause in the contract that requires arbitration, a well-respected and widely used (I'm in two arbitrations right now as we speak) dispute resolution method - why isn't she being compelled to "do the right thing"?

Just spitballing here, but like I said earlier, Disney + Premier Access didn't exist when the contracts would have been first done, so there can't have been any specific language regarding it.  So the fact that he says it is a boost for Johnson is cute, as is the fact that they are counting it in the box office tally.

Here's why: If a family of eight goes to see Black Widow in a theater, they are spending around $80.00 on tickets.  So ScarJo would get whatever her piece is of $80.00, or $10.00 per viewer.

If that same family of eight watches from home, they spend $29.99, and then all the friends and family with whom they share their Disney + login info watch it for free.  So, depending on how many people that is, her piece of the action diminishes more and more.

[ariich]

Nice, PG.

I still see, though, that the assumptions are flying with respect to this case. Some of the things being said CANNOT be known without the contract in front of us (and in some of the assumptions, the OTHER contracts that the company has entered into).  And of course there is this (from PG's article):  "Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses."

And just for shits and giggles, if ScarJo WAS getting a cut of the Premier Access money is still suing - against the clause in the contract that requires arbitration, a well-respected and widely used (I'm in two arbitrations right now as we speak) dispute resolution method - why isn't she being compelled to "do the right thing"?

Just spitballing here, but like I said earlier, Disney + Premier Access didn't exist when the contracts would have been first done, so there can't have been any specific language regarding it.  So the fact that he says it is a boost for Johnson is cute, as is the fact that they are counting it in the box office tally.

Here's why: If a family of eight goes to see Black Widow in a theater, they are spending around $80.00 on tickets.  So ScarJo would get whatever her piece is of $80.00, or $10.00 per viewer.

If that same family of eight watches from home, they spend $29.99, and then all the friends and family with whom they share their Disney + login info watch it for free.  So, depending on how many people that is, her piece of the action diminishes more and more.

But as I've said, there are also people (like me) who spent their £20 ($30) to watch it at home when, 1. it would only have cost less than £10 to watch in the cinema, and 2. I would almost certainly not have gone to the cinema anyway.

[Stadler]

Nice, PG.

I still see, though, that the assumptions are flying with respect to this case. Some of the things being said CANNOT be known without the contract in front of us (and in some of the assumptions, the OTHER contracts that the company has entered into).  And of course there is this (from PG's article):  "Petrocelli countered that the Disney Premier Access release was a boost for Johansson because that revenue is factored in to the box-office tally for the purpose of computing bonuses."

And just for shits and giggles, if ScarJo WAS getting a cut of the Premier Access money is still suing - against the clause in the contract that requires arbitration, a well-respected and widely used (I'm in two arbitrations right now as we speak) dispute resolution method - why isn't she being compelled to "do the right thing"?

Just spitballing here, but like I said earlier, Disney + Premier Access didn't exist when the contracts would have been first done, so there can't have been any specific language regarding it.  So the fact that he says it is a boost for Johnson is cute, as is the fact that they are counting it in the box office tally.

I don't agree with that logic; that it wasn't released doesn't mean it wasn't known, or that similar systems weren't available that could lead to appropriate language in the contract.  The contract does not need to refer directly to "Disney + Premium Access" in order to contemplate it in the language. 

When George Bush issued the increased emissions standards for rail, the technology didn't exist to achieve those standards.  Yet, we had language in our contracts almost five years before that technology was reached (by GE). 

Here's why: If a family of eight goes to see Black Widow in a theater, they are spending around $80.00 on tickets.  So ScarJo would get whatever her piece is of $80.00, or $10.00 per viewer.

If that same family of eight watches from home, they spend $29.99, and then all the friends and family with whom they share their Disney + login info watch it for free.  So, depending on how many people that is, her piece of the action diminishes more and more.

Except, you're isolating one variable at the expense of others.  How many are like me, that wouldn't have spent $80 to see it in the theater, but WOULD have spent $29.99 at home?   Or who would have gone to the theater but would have been alone or with his daughter ($20, $40) but would much prefer to be home on my couch watching it?   I don't have the algorithm to work through this, but it's dangerous to assume that the numbers will fall a certain way.  In fact, I think there are FAR more people that would forgo the $20 to be seen alone in the movie theater and would pay $29.99 to watch it at home free from anxiety, ridicule, and those assholes that can't put their phone down or shut their pie holes for two hours.

[hefdaddy42]

I don't agree with that logic; that it wasn't released doesn't mean it wasn't known, or that similar systems weren't available that could lead to appropriate language in the contract.  The contract does not need to refer directly to "Disney + Premium Access" in order to contemplate it in the language. 

It wasn't known.  There was no reason for it to exist.  It was created due to problems with not being able to release films theatrically during the pandemic.

There are no similar systems available for large-scale Disney/Marvel films.  There would have been theatrical release, and the eventual home release (DVD/bluray/streaming services).  Disney + Premier Access is a strange combination thereof necessitated by the pandemic.

 

Except, you're isolating one variable at the expense of others.  How many are like me, that wouldn't have spent $80 to see it in the theater, but WOULD have spent $29.99 at home?   Or who would have gone to the theater but would have been alone or with his daughter ($20, $40) but would much prefer to be home on my couch watching it?   I don't have the algorithm to work through this, but it's dangerous to assume that the numbers will fall a certain way.  In fact, I think there are FAR more people that would forgo the $20 to be seen alone in the movie theater and would pay $29.99 to watch it at home free from anxiety, ridicule, and those assholes that can't put their phone down or shut their pie holes for two hours.

Yeah, lots of variables.  All introduced by the creation of Disney + Premier Access.

[Stadler]

I don't agree with that logic; that it wasn't released doesn't mean it wasn't known, or that similar systems weren't available that could lead to appropriate language in the contract.  The contract does not need to refer directly to "Disney + Premium Access" in order to contemplate it in the language. 

It wasn't known.  There was no reason for it to exist.  It was created due to problems with not being able to release films theatrically during the pandemic.

There are no similar systems available for large-scale Disney/Marvel films.  There would have been theatrical release, and the eventual home release (DVD/bluray/streaming services).  Disney + Premier Access is a strange combination thereof necessitated by the pandemic.

Am I fundamentally misunderstanding what Disney + Premier Access is?  This article basically has it as an on-demand rental that you can watch unlimited times, which is essentially like that code you get in a Blu-ray to download digital content.  Which has been around for years.  The only difference - and it's not a "difference" as much as a policy - is that it's available while the movie is in theaters.   Again, not a concept that is new; movies have gone direct to DVD or simultaneously to DVD for years.

 

Except, you're isolating one variable at the expense of others.  How many are like me, that wouldn't have spent $80 to see it in the theater, but WOULD have spent $29.99 at home?   Or who would have gone to the theater but would have been alone or with his daughter ($20, $40) but would much prefer to be home on my couch watching it?   I don't have the algorithm to work through this, but it's dangerous to assume that the numbers will fall a certain way.  In fact, I think there are FAR more people that would forgo the $20 to be seen alone in the movie theater and would pay $29.99 to watch it at home free from anxiety, ridicule, and those assholes that can't put their phone down or shut their pie holes for two hours.

Yeah, lots of variables.  All introduced by the creation of Disney + Premier Access.
[/quote]

Me not wanting to be seen as a loser by myself in a theater is introduced by the creation of Disney + Premier Access?  Someone needs to refund all that therapy, STAT!   

[jingle.boy]

[Stadler]

Don't be rude to Hef. He'll get it, he's smart.

(Because you certainly don't mean me, homie.  )

[hefdaddy42]

Am I fundamentally misunderstanding what Disney + Premier Access is? 

I think so.

This article basically has it as an on-demand rental that you can watch unlimited times, which is essentially like that code you get in a Blu-ray to download digital content.  Which has been around for years.  The only difference - and it's not a "difference" as much as a policy - is that it's available while the movie is in theaters.   Again, not a concept that is new; movies have gone direct to DVD or simultaneously to DVD for years.

OK, once more, from the top.

You are correct about the essence of what Premier Access is.  It's an extension of Disney +. 

What I'm saying is that Premier Access was only created because of the pandemic.  It was not a thing when the film was filmed or when the contracts were signed.  Therefore it was not accounted for in any contract language.  Blu-ray content is accounted for.  Renting something on Amazon Prime or through On Demand services once a film has completed its theatrical run would be accounted for.  This is not that.  There was no mechanism by which a Disney film could be in theatrical release and also available for home streaming at the same time (which by definition takes away from the theatrical take).  That whole thing is only for the pandemic.  Before the pandemic, no studio wanted such a thing, so as not to interfere with the amount of money they could make in theatrical release.

[jingle.boy]

Put another way, D+ Premier Access was another distribution channel that Disney created (rightly so, because of the pandemic), and only made the revenues available to themselves.  The Premier Access fee is movie-specific.  So there is a direct correlation between those revenues, and some level of unearned box office revenues.  Who knows what the actual correlation is... 1:1 - not likely. 0.8:1?  0.5:1?  Impossible to know - but they revenues that at some level would have been earned at the box office.

Look, say you take a job as a to develop a new product that will only be sold in their store locations.  It's a killer product, lots of demand, company guarantees you 20% of all sales at in store, and there's only one way to buy the product - at the store.  So you agree take a small or no salary, and a % of all sales. You invest a year to develop and build the product, and on launch day, you find out the company has created a whole brand new channel to sell the product, one never used in the industry before, and you don't get a cut of those sales.  Maybe it's not the best analogy, but close enough.

*awaits 'yeah buts'*

[The Letter M]

From everything I've seen she didn't get a percentage of the D+ (that totally sounds dirty but I'm leaving it). Granted most of the sources I'm seeing are heavy on team ScarJo.

So then yeah... that's shifty on Disney's part.  Logical from the sense of the right thing to do given world conditions, but shifty as a means of getting out of having to pay her millions.

Also how much revenue was lost through easier pirating due to the D+ release? I'd gather it was substantial.

Fo sho

Just bringing this back up again. I think ScarJo could have a case against Disney in that, because they made the film available digitally day-and-date with the theatrical release, the availability of an HD pirated version of the film became widespread, something that wouldn't happen until the film reached digital outlets weeks or months later (and in the case of Black Widow, it is out on DIGITAL today, with the usual extras, just 32 days after it's initial theatrical release, which sounds like some sort of record).

Since the film was available for piracy, the amount of people who wanted to say that paid ZERO is probably insanely high. Regardless of the film's quality and rating, I think if it was a normal theatrical release, sans the pandemic, it might have been close to a billion dollar maker, being the first MCU film in roughly 2 years. I look at how Iron Man 3 made a billion after the first Avengers film came out, and granted, MCU hype was reaching new heights at that point, but I think a 2-year drought of MCU films might have caused Black Widow to bring in some huge numbers if it was a theatrical-only release.

But as others have said here, I'm pretty certain Disney did not have Premier Access in mind when Black Widow had wrapped up productions in October 2019.

I do have to wonder how long this case has been known by Disney, because back in May, when the first Shang-Chi trailer came out, it was said that that film would have a 45-day theatrical-only window, meaning it won't have Premier Access day-and-date like Black Widow (and other Disney films). I wonder if that decision was made because of ScarJo's case, or if that plan was always in place. Either way, when we look back on this in the years to come, it'll look like Disney just short-changed the BW film, either by accident or on purpose, but we can never really know how things might've turned out had the pandemic subsided by July fully, or just never happened at all.

-Marc.

[Stadler]

Am I fundamentally misunderstanding what Disney + Premier Access is? 

I think so.

This article basically has it as an on-demand rental that you can watch unlimited times, which is essentially like that code you get in a Blu-ray to download digital content.  Which has been around for years.  The only difference - and it's not a "difference" as much as a policy - is that it's available while the movie is in theaters.   Again, not a concept that is new; movies have gone direct to DVD or simultaneously to DVD for years.

OK, once more, from the top.

You are correct about the essence of what Premier Access is.  It's an extension of Disney +. 

What I'm saying is that Premier Access was only created because of the pandemic.  It was not a thing when the film was filmed or when the contracts were signed.  Therefore it was not accounted for in any contract language.  Blu-ray content is accounted for.  Renting something on Amazon Prime or through On Demand services once a film has completed its theatrical run would be accounted for.  This is not that.  There was no mechanism by which a Disney film could be in theatrical release and also available for home streaming at the same time (which by definition takes away from the theatrical take).  That whole thing is only for the pandemic.  Before the pandemic, no studio wanted such a thing, so as not to interfere with the amount of money they could make in theatrical release.

But this is what I'm struggling with.   PREMIER ACCESS - the branded product - was released as part of the pandemic, but the CONCEPT of a streaming/on-demand/hybrid service was not new at that time. According to the Disney lawyer, not only was it contemplated but it was included.   That runs directly contrary to what you're saying.  The contract need not reference "Disney + Premier Access" specifically, or reference a released product, to contemplate that it MAY be a factor to be considered.   That TESLA the car was debuted in 2008 doesn't mean that the whole concept of cars - or even electric cars - was never contemplated.

I mean, we can leave this if we're just circling the drain on the discussion, but as a general point you're making statements there - "there was no mechanism" - that I don't know to be true and that based on what some who DO know have said, ISN'T true.  It's Disney's content; why can't they release to Amazon Prime any time they want? 

[jingle.boy]

Premier Access was *created* as a result of the pandemic.  No studio had ever contemplated releasing a blockbuster movie direct-to-home on release day, nor did they have a way to monetize it for a specific title.

At this point, it's almost as if you don't want to get the point, looking at this only through your lawyer lens.  Maybe Disney would hire you    ScarJo certainly won't!