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

[hefdaddy42]

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.

Yes, but only as part of secondary release, not initial theatrical release.  The  accounting for such is completely different.  That's why, pre-COVID, the big news on new releases was how much they made in theatrical release.  You never heard how much they made on blu-ray sales or On Demand after their theatrical run is over, because it's a completely separate animal.

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

[bosk1]

Just dropped in to say:  From a legal and factual standpoint, I mostly agree with Stadler.

[Stadler]

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.

Given that both their marketing and legal staff are essentially paid to "see the future", I find that almost IMPOSSIBLE to believe.  Maybe they didn't want to do it, maybe they didn't want to be the FIRST to do it, maybe they didn't want to see a scenario where it might be necessary to do it, but I find it unconscionable that they never CONTEMPLATED it.

And if it WAS as Petrocelli claims, they DID contemplate it. 

And they absolutely did have a way to monetize it; that's the "on-demand"/PPV mechanism.   Whether something is in a theater or not is immaterial as to whether you can individually charge for a title or not.

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!   

Can you, respectfully, stop with the "you don't get the point"?   "Not agreeing with you" or "Not flooding the thread with  emojis" is not the same as "not getting the point".   I get the friggin' point.  I disagree with the assumptions that are leading to it.  And if we're going to talk about "not getting the point", I will remind you (both) that I'm not saying you're WRONG, I'm saying that we can't KNOW that for certain and it's just as likely as not that you are right as you are wrong.  You both may actually be right, IF the language supports that.  If ScarJo can prove Disney never even CONTEMPLATED this release before, then that changes the discussion measurably.   I'm just pointing out that there is a lot of weight resting on a foundation of assumptions that we cannot know at this point, some of which don't sustain logical analysis.   Neither Disney NOR ScarJo is any more or less likely to hire me here, because I'm not taking sides, though I think they'd want me because I'm not taking anything for granted. 

I'm actually willing to accept that Disney OR ScarJo might be right here (though I have my personal belief and I've stated it: neither side has a slam dunk, ScarJo made this an issue in the press for the very reasons we're seeing here - 'Big bad corporation!  Poor little actress being taken advantage of!' - and this will never see the inside of a court or arbitration room.  There will be a settlement within a few months, terms not disclosed).  Much of what I'm reading doesn't seem to be that accommodating. 

[bosk1]

In terms of who is "right," I would put my money on this being a case where it isn't a clearcut case of either party being "right."  And I'm not sure either party considers her/itself wholly in the right either.  As Stadler pointed out earlier in the thread, the lawsuit is almost surely just a mechanism for ScarJo to ensure some additional compensation by way of settlement out of an unfortunate situation that was brought about by something nobody could have expected. 

[Stadler]

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.

Yes, but only as part of secondary release, not initial theatrical release.  The  accounting for such is completely different.  That's why, pre-COVID, the big news on new releases was how much they made in theatrical release.  You never heard how much they made on blu-ray sales or On Demand after their theatrical run is over, because it's a completely separate animal.

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

I defer to PG here, he's the resident entertainment lawyer, but whether an actor gets residuals for on-demand or DVD rentals is not tied to anything we're talking about here (contemplation, timing) but whether they are a big enough star to warrant that kind of compensation.  Robert Downey, Jr., as I understand it, DOES get paid for DVD/Blu-ray sales and for on-demand sales (he gets a cut of the profits).  I know generally someone like Tom Cruise does.   Zachary Levi (Fandral in the MCU) is likely not.

[Stadler]

In terms of who is "right," I would put my money on this being a case where it isn't a clearcut case of either party being "right."  And I'm not sure either party considers her/itself wholly in the right either.  As Stadler pointed out earlier in the thread, the lawsuit is almost surely just a mechanism for ScarJo to ensure some additional compensation by way of settlement out of an unfortunate situation that was brought about by something nobody could have expected.

I wouldn't take that bet (meaning, I don't disagree with that at all).  Rarely is this stuff black and white.

[hefdaddy42]

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.

Yes, but only as part of secondary release, not initial theatrical release.  The  accounting for such is completely different.  That's why, pre-COVID, the big news on new releases was how much they made in theatrical release.  You never heard how much they made on blu-ray sales or On Demand after their theatrical run is over, because it's a completely separate animal.

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

I defer to PG here, he's the resident entertainment lawyer, but whether an actor gets residuals for on-demand or DVD rentals is not tied to anything we're talking about here (contemplation, timing) but whether they are a big enough star to warrant that kind of compensation.  Robert Downey, Jr., as I understand it, DOES get paid for DVD/Blu-ray sales and for on-demand sales (he gets a cut of the profits).  I know generally someone like Tom Cruise does.   Zachary Levi (Fandral in the MCU) is likely not.

I agree, so I'm not sure why you're bringing it up now.

Lookit, I'm not saying that I know more than anyone, or that I'm right.  But I know a little, and I'm just explaining why I think that if it goes to court, ScarJo wins, but I still don't think it will go that far.  I would be shocked if this isn't settled.

[Stadler]

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.

Yes, but only as part of secondary release, not initial theatrical release.  The  accounting for such is completely different.  That's why, pre-COVID, the big news on new releases was how much they made in theatrical release.  You never heard how much they made on blu-ray sales or On Demand after their theatrical run is over, because it's a completely separate animal.

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

I defer to PG here, he's the resident entertainment lawyer, but whether an actor gets residuals for on-demand or DVD rentals is not tied to anything we're talking about here (contemplation, timing) but whether they are a big enough star to warrant that kind of compensation.  Robert Downey, Jr., as I understand it, DOES get paid for DVD/Blu-ray sales and for on-demand sales (he gets a cut of the profits).  I know generally someone like Tom Cruise does.   Zachary Levi (Fandral in the MCU) is likely not.

I agree, so I'm not sure why you're bringing it up now.

Lookit, I'm not saying that I know more than anyone, or that I'm right.  But I know a little, and I'm just explaining why I think that if it goes to court, ScarJo wins, but I still don't think it will go that far.  I would be shocked if this isn't settled.

I didn't bring it up, you did:  You said she wouldn't be paid these because this was "new technology".  That's not necessarily accurate.

I don't know, and I stand by that, but I don't see anything that gives either side a clear advantage in terms of case outcome (though some of that is procedural in nature).  I'm with you, though, I don't think it gets that far.

[jingle.boy]

Can you, respectfully, stop with the "you don't get the point"?   "Not agreeing with you" or "Not flooding the thread with  emojis" is not the same as "not getting the point".   I get the friggin' point.

For starters, I'm not looking for you to agree with me.  I can count on one hand the number of times you've done that (one of them used to be in my sig it was such a rare occurrence  ).  But with as much respect in return, from my vantage point I don't think you do, because you keep coming back to Premier Access being nothing new, or nothing that couldn't have been foreseen (see point earlier about HBO renegotiating their contracts to accommodate for HBO Max).  Accounting for redirected revenues to Premier Access is precisely the point.

And they absolutely did have a way to monetize it; that's the "on-demand"/PPV mechanism.   Whether something is in a theater or not is immaterial as to whether you can individually charge for a title or not.

Fair point, I was thinking only about subscription streaming services, and being unable to specifically monetize something through a subscription fee, so you're right in the on-demand/PPV/physical sales distribution methods.  I'll grant you that.  Perhaps you can acknowledge that those distribution channels have NEVER been used for a Day 1 release from a major studio for a major motion picture - particularly a 'summer blockbuster'.  And the likelihood of "seeing the future" and coming to the conclusion that it would be released through additional channels is as reasonable as thinking everyone involved should've 'seen the future' of a global pandemic.

You both may actually be right, IF the language supports that.  If ScarJo can prove Disney never even CONTEMPLATED this release before, then that changes the discussion measurably.   I'm just pointing out that there is a lot of weight resting on a foundation of assumptions that we cannot know at this point, some of which don't sustain logical analysis.

Has Disney publicly indicated that they did consider it? The first public acknowledgement I can find of Premier Access is the announcement in August 2020 during it's Q3 earnings release that Mulan would be released as such - 3 months after the original planned release of Black Widow.  If the notion of what Premier Access represents is not reflected in the contract language, then I'm unsure who owns the burden of proving/disproving this.  If her salary was specifically negotiated (by both parties) to be primarily driven by box office sales, and Disney had an undisclosed plan to redirect that revenue, I'd say that's acting in bad faith.

If my company gave me a compensation plan heavily weighted on commissions earned in my territory (example - Banks New York), then on Day 1 severely limited my territory (ie, they assign me banks in Buffalo, New York), I think I'd have a reasonable beef.

As I've said... if Disney is accounting for Premier Access as part of the % of revenue that she is getting paid on, then I'm firmly on Team Disney.  If they are not, then I think she has a viable beef.

[jingle.boy]

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

I just had to pop back in here for this

  This is why  is your emote.

[hefdaddy42]

You said she wouldn't be paid these because this was "new technology". 

That is not at all what I said.

[Stadler]

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

I just had to pop back in here for this

  This is why  is your emote.

See what I mean (above)?   

Misses the whole point entirely. 

[jingle.boy]

Disney introduced a secondary release mechanism simultaneously with the theatrical release, which automatically cuts into the theatrical take and introduces a heretofore unseen mechanism for revenue for which the talent wasn't compensated.  That's why I think Disney loses if it makes it to court (which I don't think will happen).

I just had to pop back in here for this

  This is why  is your emote.

See what I mean (above)?   

Misses the whole point entirely. 

Oh for fucks sake dude... the part I bolded is a line from Infinity War that I'm applauding!  I'm simply acknowledging

[Stadler]

Now, and I'm being serious, THAT point I DIDN'T get.  Where your emoji/GIF/meme when we need it?? 

 

[jingle.boy]

Now, and I'm being serious, THAT point I DIDN'T get.  Where your emoji/GIF/meme when we need it?? 

Something like this?   



It's ok... it just proves you don't have the reflexes of Drax.

[hefdaddy42]

Ah, I see.  I took it to mean that you reduced my entire argument to saying she wouldn't get paid at all from the Premier Access revenue.

Big stars are generally paid by large upfront fee, or a piece of the theatrical release revenue, or a combination thereof (as she was in this case).  Whatever money they may receive in any kind of secondary release will be separate, and generally much less.

The Premier Access release introduced a secondary release type mechanism, but during the theatrical release.  It would thereby reduce the amount of theatrical release revenue, which would necessarily decrease the piece of the action that Scarlett Johanssen would receive.

That's the whole argument.  I don't know how much simpler I can make it.

[Stadler]

Can you, respectfully, stop with the "you don't get the point"?   "Not agreeing with you" or "Not flooding the thread with  emojis" is not the same as "not getting the point".   I get the friggin' point.

For starters, I'm not looking for you to agree with me.  I can count on one hand the number of times you've done that (one of them used to be in my sig it was such a rare occurrence  ).  But with as much respect in return, from my vantage point I don't think you do, because you keep coming back to Premier Access being nothing new, or nothing that couldn't have been foreseen (see point earlier about HBO renegotiating their contracts to accommodate for HBO Max).  Accounting for redirected revenues to Premier Access is precisely the point.

And they absolutely did have a way to monetize it; that's the "on-demand"/PPV mechanism.   Whether something is in a theater or not is immaterial as to whether you can individually charge for a title or not.

Fair point, I was thinking only about subscription streaming services, and being unable to specifically monetize something through a subscription fee, so you're right in the on-demand/PPV/physical sales distribution methods.  I'll grant you that.  Perhaps you can acknowledge that those distribution channels have NEVER been used for a Day 1 release from a major studio for a major motion picture - particularly a 'summer blockbuster'.  And the likelihood of "seeing the future" and coming to the conclusion that it would be released through additional channels is as reasonable as thinking everyone involved should've 'seen the future' of a global pandemic.

Well, if it has never happened, of course I'll acknowledge that.  It's certainly rare; a little research (Wikipedia) shows like three exceptions (The Interview being one, which is not apples to apples). So sure.  But the same research shows this:  "In 2005, Disney CEO Bob Iger suggested that simultaneous releases of films at theaters and on DVD could help to counter piracy, going as far as suggesting that DVDs could be sold directly at the theater (providing an additional source of revenue to their owners).[7][3]". So it's not that it didn't happen because no one thought of it, but because no one was willing to - or was put in the position of - doing it first.

But in fact, the CEO of DISNEY voiced this possibility 15 years ago.  15 years.

You both may actually be right, IF the language supports that.  If ScarJo can prove Disney never even CONTEMPLATED this release before, then that changes the discussion measurably.   I'm just pointing out that there is a lot of weight resting on a foundation of assumptions that we cannot know at this point, some of which don't sustain logical analysis.

Has Disney publicly indicated that they did consider it? The first public acknowledgement I can find of Premier Access is the announcement in August 2020 during it's Q3 earnings release that Mulan would be released as such - 3 months after the original planned release of Black Widow.  If the notion of what Premier Access represents is not reflected in the contract language, then I'm unsure who owns the burden of proving/disproving this.

See above on consideration.  They arguably did.  But in terms of your question, ScarJo brought the suit; she has the burden of proof on most of these issues.   She has to prove her allegations.

If her salary was specifically negotiated (by both parties) to be primarily driven by box office sales, and Disney had an undisclosed plan to redirect that revenue, I'd say that's acting in bad faith.

If my company gave me a compensation plan heavily weighted on commissions earned in my territory (example - Banks New York), then on Day 1 severely limited my territory (ie, they assign me banks in Buffalo, New York), I think I'd have a reasonable beef.

As I've said... if Disney is accounting for Premier Access as part of the % of revenue that she is getting paid on, then I'm firmly on Team Disney.  If they are not, then I think she has a viable beef.

You may have a beef you may not; the devil is in the details.  Disney has no duty or obligation to disclose their future plans.  That's the art of negotiation. Knowledge is power.   it seems in your last sentence that "if she gets paid it's all good, if she doesn't she's got beef".  That's why I'm arguing this; there are realistic, accurate legal scenarios where she doesn't get a dime.   The "what side you WANT to win" doesn't factor in.  This isn't about who we might like better.

[jingle.boy]

15 years ago, and it never ever has come up since would suggest it was not a fiscally sound premise.

Also, what I want is fairness.  I could care less if ScarJo gets more money on top of her $20M base salary for this film.  I mean, it's not like I'm concerned about the financial distress this is putting on her .  I see her side as a matter of principle.  I was taught that ethics is doing the right thing... always.  My moral compass is usually in sync with laws and contracts, but as you said, the devil is in the details - which in this situation, I don't know them.  But on the premise that she is not getting a share of the D+ Premier Access revenues as part of her variable renumeration per her contract, I don't see that as fair.

That's just me.

[Stadler]

15 years ago, and it never ever has come up since would suggest it was not a fiscally sound premise.

Also, what I want is fairness.  I could care less if ScarJo gets more money on top of her $20M base salary for this film.  I mean, it's not like I'm concerned about the financial distress this is putting on her .  I see her side as a matter of principle.  I was taught that ethics is doing the right thing... always.  My moral compass is usually in sync with laws and contracts, but as you said, the devil is in the details - which in this situation, I don't know them.  But on the premise that she is not getting a share of the D+ Premier Access revenues as part of her variable renumeration per her contract, I don't see that as fair.

That's just me.

Well, if nothing else I understand where you stand.  It's not accurate, within the boundaries of contract law, but at least I understand it.   We HAVE fairness, at least as is regarded as fair in contract law.  ScarJo and her representatives - consenting adults who are competent to enter into contracts - negotiated a contract at arms length with Disney and their representatives.  Since they both signed, we can assume they were happy enough with the deal to move forward.  They are not novices, they are not beginners, and there is likely some knowledge of the business and the trends within that business.   THAT'S the fairness, and by all accounts that's what happened.  There is no "ethics" involved in arbitrarily giving up what you're entitled to under the contract if the other party got something different than what they hoped for; in fact, one might argue that is the epitome of UNfairness.  Why even enter into a contract in the first place, if you're going to potentially lose your consideration over an arbitrary and subjective determination of "fairness" or an application of someone else's ethics?  This is precisely WHY we have contracts to begin with.

If there was a breach - and we cannot know that at this time - then the parties will be put in the position they would have been had the contract been performed.   Interestingly, that MIGHT give ScarJo LESS revenue than she got; will she be entitled to give any back?  Wouldn't that be "fair"?   And of course, at least vis-a-vis the contract, you're ignoring all the unfair things that (apparently) ScarJo did; her contract was with Marvel and called for arbitration; she ignored all that and sued DISNEY in COURT.   Why does she get an ethics pass for ignoring those terms of the contract?   Where's the "fair" in that?

[jingle.boy]

Oh, I know contracts have nothing to do with fairness... I was just explaining responding to your comment around 'what I want'.  I think PG explained last page the likely reason she was suing Disney and not Marvel.

[hefdaddy42]

Hey, I just thought of something.  Not to start all of this back up, but it seems like one big thing that could foul this up for Disney (in my non-lawyer way of looking at things) is, again, introducing Premier Access which takes away from theatrical access. 

I forgot that it doesn't really function like regular On Demand.  With regular On Demand services, once you pay, you typically get a limited time to watch the thing.  With Premier Access, I paid once, and I (or anyone else in my household, or anyone with whom I share my membership info) can rewatch the film as many times as we want.  I don't have to pay each time I watch it, which would be the case if it were an exclusively theatrical release (which has been the case with every other MCU film).

Does that make a difference?

[jingle.boy]

Never thought of that as an additional wrinkle.  PA gives unlimited access to a watch and re-watch the title - different than on-demand or PPV.

[The Letter M]

Never thought of that as an additional wrinkle.  PA gives unlimited access to a watch and re-watch the title - different than on-demand or PPV.

It is essentialy a no-frills digital BD, no extras but unlimited viewings, and for not much more than a BD typically goes for when a movie is new (usually $20-25), though those come with extras, so you're really only getting like $10-15 worth with the movie itself. Essentially you're paying twice what you would for a BD just to watch the film 3 months earlier, and because Premier Access ran concurrently with theatrical, it really cut out of theatrical box office profits (not to mention piracy).

To put that in perspective, the film just went to digital purchase earlier this week, just over a month from theatrical, and I think Disney did that to try and make as much back as possible on the film because digital releases are usually 2 months out from theatrical release, not one. Hell, the BD and 4K UHD sets come out on September 14th! I cannot think of a big blockbuster film with that quick of a turnaround between theatrical and home video.

Disney is definitely trying to recoup on this as quickly as possible because if they wait longer, more folks will just pirate or D+ account share.

-Marc.

[Stadler]

DVD.

Here's another wrinkle:  Let's say you guys are spot on, and this was unforeseen and was a blatant disregard of what BOTH parties intended when they entered into the contract.  ScarJo wants the profits from the Premier Access, does she share the risk as well?  What if it didn't sell, or sold less than forecast; shouldn't she then share some of the losses as well?  What about development costs?   Absent that, should we accept the fact that Disney quite possibly could have sat on this innovative technology and not released it rather than pay her?  Regardless of who is (factually) right, this was a bold decision that was not a guaranteed success (even with the $60M in return; it depends on what the investment was and the required time for ROI); what is fair about Disney bearing ALL the risk and not being able to recoup the commensurate reward?  Like it or not, we live in a capitalist system, and that's the incentive process for these types of decisions.   Don't we complain about this in the pharmaceutical realm?   Pfizer will make dick pills and COVID vaccines, because they make bank; they don't do obscure medicines because the return isn't there.  I think we all agree that's a sub-optimal state*, so why encourage that behavior elsewhere, even if "lives" are not at stake?






* I have long said that as part of Obamacare, instead of "guaranteeing" profits for Pharma, as the Feds did, they should have agreed to government fund the R&D for new drugs so there wasn't such a high hurdle to recoup investment on new pharmaceuticals.   We do this in the rail industry, for example.   I'm sure we do it to some degree in the Pharma space, but we should broaden that across the board.

[Stadler]

and because Premier Access ran concurrently with theatrical, it really cut out of theatrical box office profits (not to mention piracy).

Well those are not complimentary; if you're cutting piracy, you're presumably INCREASING profits, whereas if you're really cutting theatrical box office, assuming the Premier Access is less profitable (not a guarantee, because the overheads are not the same), you'd be DECREASING profits.  I've noted before that in a COVID situation, it's not a given that these are people that would alternately go to the theater but for Premier Access.   I have no way of knowing, and I'm not going to speculate, but if I was counsel on EITHER side, as part of my due diligence I'd be asking for some data as to what that demographic cross-section looks like (the data may not be there, but I'd like to know).

So, in the interest of fairness, should ScarJo give back the profits that would have been lost to piracy?  Is this a net-net discussion?   Why should Disney bear the sole burden of cutting piracy, and yet seemingly be penalized for actually doing so?

[hefdaddy42]

ScarJo wants the profits from the Premier Access, does she share the risk as well? 

I don't know that she is asking for profits from the Premier Access (she may be, I just don't know).  She is saying that the existence of Premier Access hurt the theatrical take, which is where she would have made a boatload. 

I think she was an executive producer on this one, as well, which means (I would assume) that she WAS sharing the risk, at least to some extent.

Also, Disney didn't do anything to cut piracy.  If anything, the Premier Access release made piracy much, much easier.

[Stadler]

And by the way, I'm not trying to be snarky with the constant references to fairness.  I'm being sincere, and just trying to show that the playing field of "fairness" is sometimes broader than we first envision.  "Fair" is almost always in the eye of the beer holder, IMO, and why I'm loathe to do anything other than leave it to the parties. 

[hefdaddy42]

And by the way, I'm not trying to be snarky with the constant references to fairness.  I'm being sincere, and just trying to show that the playing field of "fairness" is sometimes broader than we first envision. 

Oh, I get that.  I'm in the insurance business.  Each side is only entitled to what is in the contract (more or less).

[Stadler]

ScarJo wants the profits from the Premier Access, does she share the risk as well? 

I don't know that she is asking for profits from the Premier Access (she may be, I just don't know).  She is saying that the existence of Premier Access hurt the theatrical take, which is where she would have made a boatload. 

I think she was an executive producer on this one, as well, which means (I would assume) that she WAS sharing the risk, at least to some extent.

Also, Disney didn't do anything to cut piracy.  If anything, the Premier Access release made piracy much, much easier.

That last is a whole 'nother discussion; I tend to agree with you, but there are some - see M, see the quote I posted - that feel that simultaneous release DOES reduce piracy.  I'm skeptical; then again, when a movie comes out, you can go down to Battery Park and buy home-made DVDs transferred from handheld cameras of in-theater movies literally the day of release. 

[The Letter M]

ScarJo wants the profits from the Premier Access, does she share the risk as well? 

I don't know that she is asking for profits from the Premier Access (she may be, I just don't know).  She is saying that the existence of Premier Access hurt the theatrical take, which is where she would have made a boatload. 

I think she was an executive producer on this one, as well, which means (I would assume) that she WAS sharing the risk, at least to some extent.

Also, Disney didn't do anything to cut piracy.  If anything, the Premier Access release made piracy much, much easier.

That last is a whole 'nother discussion; I tend to agree with you, but there are some - see M, see the quote I posted - that feel that simultaneous release DOES reduce piracy.  I'm skeptical; then again, when a movie comes out, you can go down to Battery Park and buy home-made DVDs transferred from handheld cameras of in-theater movies literally the day of release.

If I wasn't clear, I was saying that *because of* the Premier Access, pirates were able to rip a very good HD version of the film off of Disney+ for piracy and torrenting. Those don't usually hit the web and/or the market for bootleg sale until the eventual digital release (usually 2 months after the theatrical release), which means if you wanted to watch the film in at least HD quality, the theater was where you needed to go. Granted, some folks are fine with off-angle handicam versions of the film bootlegged from a theater, but these simultaneous day-and-date digital releases have cut that wait time between release and HD bootlegs from 2 months down to zero, meaning piracy has gone WAY up for movies like Black Widow and The Suicide Squad, both of which have seen HUGE reductions in profits on their second weeks. Anyone who wanted to see it in a theater did, and anyone who didn't either saw it for "free" (on HBO Max in the case of TSS) or through Premier Access on Disney+ (or pirated via torrent), but any of those ways of viewing these films means less money through theaters and the box office.

But of course, we wouldn't be in this situation without the pandemic, so it's hard to say how this would've shaken out in a non-pandemic world. These big blockbuster films have never had to be handled this way before, so tossing out examples of direct-to-DVD/home video films aren't quite accurate considering these films are meant to be HUGE draws for movie-going audiences. In a non-COVID timeline, they would've probably brought in close to a billion dollars each! The MCU has had a history of pulling in billion dollar films, especially in the last 5 years, so it's not out of the realm of possibility that Black Widow may have done the same, especially given how popular her character is with many fans.

There are a lot of "what ifs..." involved, no pun intended, surrounded these releases that make it difficult to figure out exactly what should happen with these film's profits. Should ScarJo get more? Most likely! But we can't ever truly know just how much she lost by not having a theatrical-only release, COVID or not.

-Marc.

[jingle.boy]

DVD.

Here's another wrinkle:  Let's say you guys are spot on, and this was unforeseen and was a blatant disregard of what BOTH parties intended when they entered into the contract.  ScarJo wants the profits from the Premier Access, does she share the risk as well?  What if it didn't sell, or sold less than forecast; shouldn't she then share some of the losses as well?

Um... that's exactly what she's doing.  Any employee that has a variable component to their compensation (ie, not a bonus, but a variable incentive - the two are not the same) is sharing in the risk of performance - their own, and the company's.  Her compensation shouldn't be viewed as a static/fixed base + bonus ... she's taken a lesser base salary, on the goal of the movie crushing it and her base + variable rate (% of box office revenue) being much higher than a fixed base salary alone.

What about development costs?

What about them?  Using the Pfizer example, employees don't bear any responsibility in the development expenses of a product.  That's the responsibility of the producer.

what is fair about Disney bearing ALL the risk and not being able to recoup the commensurate reward? 

That's their role as the owner of the Studio.  Everything is a risk/reward equation, and the studio is the top of the pyramid.

[Stadler]

DVD.

Here's another wrinkle:  Let's say you guys are spot on, and this was unforeseen and was a blatant disregard of what BOTH parties intended when they entered into the contract.  ScarJo wants the profits from the Premier Access, does she share the risk as well?  What if it didn't sell, or sold less than forecast; shouldn't she then share some of the losses as well?

Um... that's exactly what she's doing.  Any employee that has a variable component to their compensation (ie, not a bonus, but a variable incentive - the two are not the same) is sharing in the risk of performance - their own, and the company's.  Her compensation shouldn't be viewed as a static/fixed base + bonus ... she's taken a lesser base salary, on the goal of the movie crushing it and her base + variable rate (% of box office revenue) being much higher than a fixed base salary alone.

I get the difference between bonuses and variable comp.  I get all that.  But neither of them cover LOSSES, only lesser profits.  There is absolute risk, for sure, but it's capped.  Is ScarJo giving money BACK if the service loses money?  No. And neither cover the process of NPI (New Product Introduction).   I still don't think this is new, I still don't buy that this is something that no one could have foreseen, but goose/gander, I don't know that.  I can't base an opinion on it.  As we talk it through, and especially if we're talking about "fairness", I see less and less reason why ScarJo is the victim here.

What about development costs?

What about them?  Using the Pfizer example, employees don't bear any responsibility in the development expenses of a product.  That's the responsibility of the producer.

And so is the pricing and payouts, no? 

what is fair about Disney bearing ALL the risk and not being able to recoup the commensurate reward? 

That's their role as the owner of the Studio.  Everything is a risk/reward equation, and the studio is the top of the pyramid.

And so don't they have the responsibility and, perhaps even the DUTY, to mitigate that risk?  Such as, I don't know, maybe looking at new paradigms for release like day and date?   This idea that Disney did this to screw over ScarJo seems less and less a reality; I'm almost wondering if they had an OBLIGATION to do this.   And given that the Disney attorney said she WAS paid for the alternate release path, as I noted (but who knows?), I've been pretty adamant that I don't have a side here, but that's getting more and more difficult to maintain.

[hefdaddy42]

We'll see what happens, but I will just say that when faced with a similar (not identical) situation, Warner Brothers chose to renegotiate contracts with actors/directors with similar payment systems before simultaneously releasing their new films in theaters and on HBO Max.

I don't have anything else.

[jingle.boy]

Is ScarJo giving money BACK if the service loses money?  No.

You're right.  If the studio thought there was a possibility or risk of losing money, I'm sure they could negotiate a reclamation of her base salary.  And who's to say this isn't in the standard terms of the contract?

At this point, we really are circling the drain.  Like Hef, I'm not sure I have any additional perspective, or any other way of saying what I've already said.

[Stadler]

Is ScarJo giving money BACK if the service loses money?  No.

You're right.  If the studio thought there was a possibility or risk of losing money, I'm sure they could negotiate a reclamation of her base salary.  And who's to say this isn't in the standard terms of the contract?

At this point, we really are circling the drain.  Like Hef, I'm not sure I have any additional perspective, or any other way of saying what I've already said.

Me too; I was just thinking that as I was reading both your posts.  I guess we buy popcorn and see how it shakes out. 

In the meantime, I might watch Endgame again this weekend.