Bloomers and Black Widows: Furthering Feminist Law Through Contract

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. 

Cue lawsuit.

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.

Kylie Who?

Screen Shot 2016-05-09 at 8.12.56 AM

By Danielle Ollero

Although many think of Kim, Kourtney, and Khloe when hearing the name Kardashian, younger sister Kylie Jenner is now making a name for herself, quite literally.  In April and November of 2015, Kylie Jenner, Inc. filed several trademark applications for Jenner’s full name, along with just her first name “Kylie.”

Of Jenner’s two applications for “Kylie,”one covers “[e]ntertainment in the nature of providing information by means of a global computer network in the fields of entertainment and pop culture; entertainment services, namely, personal appearances by a celebrity, actress and model,” and “[p]roviding information by means of a global computer network in the field of fashion.” The other extends to “[a]dvertising services, namely, promoting the brands, goods and services of others; endorsement services, namely, promoting the goods and services of others.” There were no issues until KDB Pty Ltd. filed a Notice of Opposition (Notice) on behalf of Australian pop star Kylie Minogue on February 22, 2016.

The Notice cited an existing trademark registration for the name “Kylie” that covers entertainment services and music recordings.  Although not precisely the same categories that Jenner is using in her application, the similarities still may pose a threat to Jenner’s application.

Trademark law has a purpose that is two-fold.  First, to prevent confusion of the consumer when identifying the source of a particular mark.  Second, to protect the trademark owner’s reputation.  KDB asserts that if Jenner’s application were granted, then it would undermine both of these purposes for Minogue’s existing trademark.

KDB further argues that Jenner’s trademark would cause confusion amongst Minogue’s fans, and would dilute her brandKDB cites that Minogue owns the domain “” and that as a survivor of breast cancer, a movement called “The Kylie Effect” was started for support of breast cancer research. These are an attempt to prove that Minogue’s fans know her as simply “Kylie,” so Jenner’s application will cause her fans to become confused.  As a result, this confusion would dilute Minogue’s brand by associating her with Jenner’s controversial statements.  However, this argument may still fall flat, as it is unclear whether Minogue will be able to prove that she is known simply by her first name unlike Madonna, Cher, Adele, or Prince, whose first names are their sole identities.

Minogue points to the longevity of her career, that she has been in the entertainment industry since 1979, and the she has participated in events in the United States and around the world.  She argues that even if her fans do not solely know her as “Kylie,” the name is more closely associated with her than with Jenner.  Although Jenner’s millions of social media followers may disagree with KDB.  It is impossible to deny that she is one of the most followed stars on social media, and is consistently featured in the tabloids.

The remainder of the Notice further lambasts Jenner as a “secondary reality television personality” who was a “supporting character” on the television series Keeping up With the Kardashians.   KDB also claims that Jenner’s social media presence has been subject to criticism from organizations such as the Disability Rights and African-American communities.  Although these appear to be jabs worthy of a social media war, these arguments will likely be affective in court as they go toward the protection of Minogue’s reputation.

Since the initial Notice was filed, KDB requested an extension to oppose the trademark, which was granted on April 4, 2016.  KDB believes that it has “good cause” to oppose Jenner’s additional trademarks.  Although these two starlets may be more comfortable settling disputes within the confines of their Twitter accounts, this will be one battle that will be fought in court.

Images Source: PopCrush

Erin Andrews’ Privacy Lawsuit and its Possible Effect on Hotel Policy

erinandrewsBy Joe Davison

On March 7th, 2016, a jury awarded $55 million to Erin Andrews, a famous sports reporter and cohost of the popular show Dancing With The Stars, in an invasion of privacy lawsuit. In 2008, Michael David Barrett, a convicted stalker, secretly videotaped Andrews through the peephole in her hotel room door at a Marriot hotel in Nashville. Barrett had conned a hotel employee into confirming Andrews’ hotel reservation and asked to reserve the adjoining room. After filming Andrews while she was undressing, Barrett posted the video online. Continue reading

Standing Room Only: The Limited Consumer Market for Ticket Sales

sold outBy Alex Bullock

Many sports and music fans find it difficult or expensive to get tickets to see their favorite team or band play live. Consumers face the challenge of finding an available ticket, and the tickets they do find are often more than what they are willing to pay. It almost feels like the system is built to favor ticket sellers and resellers. Enter New York attorney general Eric Schneiderman.

Schneiderman recently released a 43-page report entitled Obstructed View: What’s blocking New Yorkers from Getting Tickets that criticizes the ticket sales practices of sports and entertainment companies as unfair and deceptive. The report primarily focuses on consumer access to tickets. Continue reading

Daily Fantasy Sports Leagues: To Regulate or Not To Regulate

ffpicBy Tyler Quillin

Daily fantasy sports companies, DraftKings and FanDuel, have taken center stage in the past few weeks with a controversy surrounding potential impropriety in the form of insider trading. Adam Johnson, a Kentucky resident and DraftKings user, filed a class action lawsuit against DraftKings and FanDuel on October 8th in the United States District Court’s Southern District of New York alleging negligence, fraud, and a violation of consumer protection acts in New York, Kentucky, and Massachusetts.

Fantasy sports leagues are internet-based games that allow fans to “draft” players from a designated sports league to a team and apply a points system to the athletes’ performance in order to compete with other league members. Allowing increased opportunities to play throughout the week, season, and sporting world, daily fantasy sports leagues differ from traditional fantasy sports leagues because they begin and end on a single day. Continue reading