Scarlett Johansson’s suing Disney. Welcome to the great 21st-century streaming wars

Every now and then somebody suggests that Scarlett Johansson is a movie star of the old school. This week, by suing the studio, the actor offered further evidence to bolster the argument.

It is eight decades since, in separate cases, Bette Davis and Olivia de Havilland dared take their employers to court. De Havilland's successful case accelerated the decline of the studio system and prepared the ground for the lucrative freelance deals that contemporary actors such as Johansson now enjoy. The current suit feels more like the inevitable result of structural changes that, looming for some years, the Covid crisis greatly accelerated. Financial rearrangements have already taken place elsewhere.

Welcome to the latest flurry in the great 21st-century streaming wars. Johansson is suing the Walt Disney Company, owner of Marvel Studios, for, in an alleged breach of contract (we said "alleged", m'lud), releasing Black Widow on the Disney+ service the same day it arrived in cinemas. Her lawyers claim that this broke a long-standing agreement for a "wide theatrical release" and that Johansson, who expected to receive bonuses for box-office sales, would suffer financially.

Walt Disney has responded to Johannsson's suit with moral as well as legal arguments. The corporation says the action is 'especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the Covid-19 pandemic'

The lawsuit states: “Disney intentionally induced Marvel’s breach of the Agreement, without justification, in order to prevent Ms Johansson from realizing the full benefit of her bargain with Marvel.”

Scarlett Johansson sues Disney over Black Widow streaming release

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Walt Disney has responded with moral as well as legal arguments. The corporation says the suit is “especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the Covid-19 pandemic”.

Studios have taken differing approaches to the Covid shutdown and to the slow creep back to a permanently altered normality. Disney and Warner Bros have, in the United States at least, been among the most aggressive in embracing the streaming options. Most of Disney's recent potential blockbusters – films such as Soul, Cruella and Black Widow – have appeared in cinemas and on Disney+. Black Widow was available to subscribers in the US at a $30 premium rate. Luca, the latest film from Pixar, Disney's ground-breaking digital-animation partner, arrived exclusively to stream. Warner Bros, owner of the DC superhero strand, chose to send its entire catalogue to the HBO Max service in the United States and, as a result, had to pay millions of dollars to stars such as Will Smith and Denzel Washington. The sums are still being brooded upon. The deals are still being pondered.

Black Widow did open strongly in cinemas worldwide, but the film’s 67 per cent slump in its second weekend was seen as precipitous. The Hollywood Reporter marked “one of the biggest drops ever for a Marvel title, and the worst among the Marvel Cinematic Universe films released by Disney”. The National Association of Theatre Owners, the professional body representing American cinemas, was not happy. “The many questions raised by Disney’s limited release of streaming data opening weekend are being rapidly answered by Black Widow’s disappointing and anomalous performance,” Nato stated. (Yes, it really does use that acronym.)

All of which is by way of confirming that, whatever the rights and wrongs of Johansson’s case, she and her lawyers are riding a wave that has been swelling for some time. There will be a great deal more clatter and distress before a degree of stability emerges.

The stands taken by Davis and de Havilland were quite different. Johansson is an independent player with a great deal of personal power. Her predecessors – in moves seen as grossly impudent by the male studio heads – were standing up against a form of (admittedly lucrative) indentured servitude. In 1936, convinced that her contract with Warner Bros was forcing her into substandard films, Davis breached that deal to appear in two British films. She then took the studio to court in London.

It is delightful to ponder how contemporary media would respond if Disney's lawyers were to use the language that Warners' barrister directed towards the greatest star of her age. Patrick Hastings QC concluded "that this is rather a naughty young lady, and that what she wants is more money".

Davis lost the case and, greatly in debt, fought as fiercely as one of her famously astringent characters to get back to the top of the tree.

Warner Bros was again in the crosshairs when de Havilland, the star of The Adventures of Robin Hood and Gone with the Wind, elected to take her own stand against the studio system. In 1943 she was informed that Warner was adding six months to her recently expired contract, following earlier suspensions for refusing to appear in certain films (some during a period of convalescence).

Never anybody’s patsy, de Havilland took to the law courts and, following initial success and further triumph on appeal, won a case that restricted the power of the studio and granted greater independence to actors.

The resulting judicial opinion is still known as the de Havilland law. Even Joan Fontaine, the sister with whom de Havilland squabbled for decades, was moved to celebrate the older woman's bravery. "Hollywood owes Olivia a great deal," she said. De Havilland was elbowed out of the industry for two years but rallied to win two Oscars and ultimately become the last of the interwar stars still standing. She died last year, at the age of 104.

So Johansson’s decision to turn her lawyers on the studio is not without precedent. The pressures are, however, different. Back then the industry believed de Havilland and Davis were toying with professional suicide.

Nor will Johansson be the last to ask questions about the financial consequences of the streaming wars (particularly if she wins). The lawyers of Bel Air will be rubbing their hands. There is plenty more to come.