By: Paige Gagliardi
What does a singing suffragette and comic book assassin have in common? They both will not stand for a breach of contract.
Actress Scarlett Johansson, star of the latest Marvel blockbuster “Black Widow,” recently made headlines when she filed a lawsuit against her employer The Walt Disney Company. While it may seem unwise to battle an entertainment powerhouse like Disney, this is not the first time the female lead of a feminist film has sued an entertainment giant for breach of contract. Spoiler: last time, the actress WON.
History is set to repeat itself, and in doing so, it may set some powerful legal precedent for the entertainment industry.
Grab your popcorn!
The Lawsuit of Yesterday
Shirley MacLaine Parker is a woman with multiple roles and identities- director, artist, author, academy-award winner, dancer, singer, author, traveler, wife, mother, and activist. Credited with the dismantling of the exploitative Old-Hollywood star-system of actor management, Parker has never shied away from risking her position and using the court to fight for her rights as a creative.
In 1965, Parker signed a contract with 20th Century-Fox Film Corporation to lead the slated production of a motion picture entitled “Bloomer Girl” (based on Arlen and Harburg’s musical-comedyof the same name). The musical’s plot tracks Evelina, the fictional niece of Amelia Bloomer, as she follows the political footsteps of her aunt.Bloomer, famous cohort of Elizabeth Cady Stanton and Susan B. Anthony, was a mid-nineteenth century feminist, suffragist, and abolitionist who founded the first U.S. newspaper for and by women- The Lily. While the musical takes a few liberties with history, this musical adaptation not only presented the perfect opportunity for Parker to display her talents as a lead singer and dancer, but also provided her an opportunity to introduce audiences to an important human rights movement and advance feminist messages.
Unfortunately, this musical would not see the screen. The company instead offered to employ Parker as the leading actress in another film tentatively entitled “Big Country, Big Man” (hereinafter, “Big Man”). The compensation offered was identical, as were 31 of the 34 numbered provisions of the original contract. However, unlike the musical “Bloomer Girl,” “Big Man” was a dramatic ‘western type’ movie. Furthermore, while “Bloomer Girl” was to be filmed near her home in California, “Big Man” was to be filmed in Australia. The new contract also required that Parker accept an unchangeable script and to work under a different director in whose selection she had no choice.
Afforded only one week to accept the radically different substitute offer, Parker allowed the offer to lapse, choosing instead to file suit.
It is not unreasonable to assume that “Big Man” and “Bloomer Girl” would have adhered to their respective genres and associated gender tropes, offering two drastically different portrayals of women (the gendered titles ‘Bloomer Girl’ and ‘Big Country, Big Man’ speak for themselves). In one, Parker would have been the leading lady and the top-billed cast member, while in the other, she would have been relegated to a secondary role under the male hero. “Bloomer Girl’s” source material tackled issues of race and gender and because of 20th Century Fox’s decision, Parker was denied the opportunity to star in a film that would showcase not only her talent, but her political acumen as well. The genre gap between the two films, as well as disparities of control, were not merely what the dissent in Parker’s suit referred to as “superficial differences,” but illustrative of a legally recognizable inferior position that Parker would be in by accepting the new role.
By affirming that the studio failed to mitigate damages to Ms. Parker, this case marked a major turning point for creatives: finally, a woman entered the “man’s world” of contracts to fight for equity and successfully stood up to a major studio and demanded they afford the respect owed to her. This case thus served as a watershed moment for performers in the entertainment industry because it clarified the concept of mitigation of damages for entertainers and severely hindered a method by which studios could take advantage of talent without risking fiscal responsibility. Clearly, it was a game changer. To this day, this case remains a staple in contract law casebooks when introducing mitigation. It is also often one of the first cases with a female as one of the parties.
The Lawsuit Today
Scarlet Johansson, the world’s highest paid actress and star of the most successful film franchise in history, alleges her contract was breached when Marvel’s “Black Widow” premiered on the Disney+ home streaming service at the same time it premiered in theaters (contrary to an exclusive theatrical debut stipulated in her contract).
“Black Widow,” a highly anticipated in medias res addition to the Marvel Cinematic Universe, finally liberated a female character originally designed for the male gaze. In getting her own independent film, the Black Widow is finally afforded the center stage to tell her unique narrative. Tackling feminist issues such as gender, objectification, human trafficking, reproductive rights, and family ideals, the superhero’s story intentionally parallels the real life stories of many women who experience abuse by men of power. In taking revenge and in taking power back, Black Widow helps reshape the cultural gaze and pushes the boundaries of how women are represented in the media.
Despite a successful opening weekend, this film has recently seen a sharp nose-dive in box office gross revenue week-to-week. Worse, as the Wall Street Journal reports, Johansson stands to lose an estimated $50 million on the film due to Disney’s hybrid-release strategy. That’s a super-sized pay cut anyone would want to avenge.
Johansson claims that she tried to renegotiate the terms of her contract with Disney after she discovered the film would not be released exclusively in theaters, but the studio did not respond, and thus willfully induced the breach. However, this is bigger than just “Black Widow.” Many production companies and creatives negotiate box office incentives in their contracts, but as content consumption trends towards streaming, creatives are floundering for ways to legally assert their worth and navigate a growing power imbalance as media companies refuse to release their proprietary viewer numbers. And while other companies are undertaking similar hybrid-release strategies, fair compensation for creatives remains a gray area without legal precedent- precedent Johansson’s lawsuit could set.
The Law of Tomorrow:
The parallels between Parker’s and Johansson’s lawsuits are clear: actress wants to star in feminist film; studio breaches contract; actress stands to lose what she could have gained, financial or otherwise; actress stands up for her rights; actress sues. Should today’s case follow the same path as its sister-suit, Johansson’s lawsuit will likely have profound implications. Using her position of privilege to push this potential precedent, the ramifications could trickle down to all creatives, protecting not only the top actress working for the biggest media company in the world, but all other creatives seeking to assert their worth contractually. And regardless of whether Johansson wins, her suit will surely shape how every party approaches a contract in the ever-changing industry of entertainment.
Mark your calendars, everyone. New law is coming to a theater near you.