Before Scarlett Johansson, Olivia de Havilland took on an all-powerful studio — and won
With her lawsuit against Disney for breach of contract regarding Black Widow, Scarlett Johansson has been sparking comparisons to the legendary Golden Age star, whose victory over Warner Bros. in a prolonged court battle over her contract changed Hollywood history (and California contract law) forever. Johansson's claims against Disney don't share a great deal with the particulars of de Havilland's suit, and it seems unlikely the earlier case would prove a useful precedent in court. Yet the suits' historical contexts, and their potential to win a victory for talent over supposedly all-powerful corporations, put them in striking parallel to each other.
"We look at De Havilland v. Warner Bros. as the beginning of free agency [in Hollywood], and the end of the long-term contract system," says Emily Carman, a professor at Chapman University's film school and author of several works on studio-talent relations in classical Hollywood. "But it's really a confluence of events. There are other actors and actresses who were using contracts to be more empowering to them, and the vertically integrated monopoly of the studio system was unraveled [soon after]. De Havilland is a symbolic marker for the studio system, and she became a poster child for the newfound agency that could be attained in postwar Hollywood."
Similarly, Johansson has become an emblem of a major battle between talent and studios in a transformative moment for the entertainment industry. Much has already been made of her lawsuit's potential to change the landscape of Hollywood and stars' compensation for the foreseeable future, as the major studios reshape their business around streaming. Her case, like de Havilland's, may well be viewed for years to come as a symbolic landmark in studio-actor relations.
Olivia de Havilland began her career at the height of the classical Hollywood studio system, signing a long-term contract with Warner Bros. in 1935. (Under the prevailing practice of this era, actors would typically work under contract to a single studio for years at a time.) During her time there, de Havilland became increasingly frustrated with the roles offered to her, particularly the insipid ingenue roles she felt gave her no depth to explore. As she once told EW, "What bothered me was playing one-dimensional parts in films which were really about 'Boy Meets Girl,' 'Will Boy Get Girl?' (He always did). Those roles were intended simply to fill the routine function of 'The Girl.'" De Havilland got a taste of the roles she was hungry for in loan-outs to other studios, most notably playing Melanie in Gone With the Wind.
That mounting frustration led de Havilland to decline roles she felt were beneath her talents, prompting the studio to use their well-worn manipulation tactic of putting her on suspension. While suspended, stars were unpaid and forbidden from taking work elsewhere, with the time they took off tacked onto the end of their contracts. Between various suspensions and time missed due to illness (precipitated in many cases by stress and intense work hours on set), de Havilland owed Warner Bros. 25 weeks of extension time when her contract expired in 1943.
Many stars, including formidable talent Bette Davis, had fought Warner Bros. before, and lost. But de Havilland's father was a patent attorney, and she'd watched the likes of Davis duke it out to no avail — so she came to the table armed with a stronger legal case than her predecessors. With the argument that California law limited personal service contracts to seven calendar years, de Havilland decided to take Warner Bros. to court.
"Her case was very much an interpretation of what was in the Civil Code about the seven-year rule," says John Geiger, an intellectual property lawyer and professor at UCLA. "Is the clock running like in soccer, where it doesn't stop, or is the clock running like in basketball, where if the ball goes out of bounds, the clock stops?"
De Havilland faced a steep battle, including an essential blacklisting from the industry as the case dragged on. "She was off screen for almost two years, and she wasn't even 30 yet. This is the prime of her career," notes Carman. "And Warner Bros. tried to blackmail her and tell other studios to not hire her."
But in the end, de Havilland won out, not only securing her freedom from Warner Bros. but helping to break the studios' stranglehold on stars' personal and professional lives. "Olivia showed people — actors, actresses, producers, directors — you have more leverage than you think, and the courts are going to back you more than they think you will," says Victoria Amador, author of Olivia de Havilland: Lady Triumphant, coming in paperback this November.
The decision became an important legal precedent that is still cited today (and is still known as the "De Havilland Law"), but perhaps more significantly, it put a hefty dent in studios' armor at a time when their power was beginning to wane. "Her lawsuit happened two years before the antitrust suit was filed against the studio system, and I think she paved the way for that antitrust action to go through," Amador muses. "By Olivia coming at it, and winning, three years before, it was a major brick in the downfall of the control of the studio system."
Amador refers to a 1948 court decision commonly known as the Paramount Decrees, when the Supreme Court ruled that the five major studios must divest themselves of their exhibition arms and thereby end their monopoly over theatrical distribution. "Suddenly, it's too expensive for studios to keep talent on long-term contracts," Carman explains. "It's the beginning of a new era where talent and producers bring their projects to studios, who then distribute them."
In 1950, Jimmy Stewart delivered another blow to the contract system, with a precedent-setting deal taking percentage points on a film in lieu of hefty studio salary. That practice became the norm for stars in subsequent decades — and ironically, it's at the heart of Johansson's complaint.
Johansson's lawsuit essentially argues that Disney violated her contract by releasing Black Widow in theaters and on Disney+ at the same time, depriving her of potential millions in box office dollars tied to her percentage points on the film. (In a statement responding to the lawsuit, Disney said Johansson's complaint has "no merit whatsoever," adding that "the release of Black Widow on Disney+ with Premier Access has significantly enhanced her ability to earn additional compensation.") While she's on a very different playing field than de Havilland in a legal sense, their cases share a great deal in a spiritual one.
"Both women are saying we're looking at these contracts very differently [than their employer]," notes Amador. "You are trying to get away with controlling me financially, controlling my box office appeal, and controlling my professional integrity in ways that I wouldn't have imagined when I signed with you. I'm not going to let you get away with it. Clearly, what [Johansson] is saying is this is the return to the studio system in terms of peonage."
Indeed, there's increasingly a looming sense of déjà vu in the industry, a notion that we're careening toward a model that evokes the classic studio system with newer technology. Coincidentally (or not), as Hollywood studios increasingly merge into megalith conglomerates with distribution propelled by their proprietary streaming platforms, the Paramount Decrees were overturned last year.
"This new streaming wars model is almost the vertically-integrated monopoly on steroids," Carman says. Adds entertainment lawyer Jeff Finkelstein, "I think we're going to go back to contract player deals, where actors and writers and directors wind up being exclusive to one particular media company. We're beginning to see some of it, especially on the TV side, where we see these massive overall deals with writer-producers that essentially lock them into a media company." (See Shonda Rhimes' recently expanded deal with Netflix, for instance.)
As the COVID-19 pandemic has accelerated Hollywood's shift toward a streaming-centric business, studios and actors have found themselves at odds over how talent should be paid under that new model. Warner Bros., for instance, shelled out millions to keep talent happy after announcing that its 2021 films would be released in theaters and on HBO Max simultaneously last year. Johansson's case could establish a vital precedent for how those deals play out going forward.
"Whether Johansson wins or loses, [studios] are going to have to start thinking about how they are going to be paying actors or anyone who is profit-sharing from streaming services," notes Amador. "If she wins, it could have the same impact, without a doubt. And who's going to benefit? The people who are doing the work."
She continues, "People think that actors are merely actors, but a smart actor is a business person too. Certainly Olivia was, and clearly Scarlett Johansson is too."
And Geiger believes this will be a crucial point moving forward: "I think that actors will become very savvy in terms of microeconomics," he says. "They're going to understand that the studio point of view isn't so much fighting over a piece of the pie that your film represents, but how can your film contribute to expanding the overall pie."
Win or lose (or, as most insiders believe will happen, settle), Johansson is choosing to stand up for herself and the terms of her contract in much the same way de Havilland did nearly 80 years ago. The two share a steely grace onscreen, but it's their actions offscreen that could link them in the history books.