Thor's Dark World: Why Over-Delivering is a Breach of Contract

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Thor: The Dark World, the sequel to Marvel's 2011 hit Thor is currently deep in post-production and is slated for release this winter.  If you've been following the production of the film like I have, then you've heard rumors that Marvel President Kevin Feige and the film's director Alan Taylor are in the midst of a major disagreement.   The nature of that disagreement remains a mystery, but one recent rumor claims that the fight is over - of all things - the running time of the film.  Taylor apparently wants the film to run for two and a half hours, while Feige wants the film to clock in at two hours even.  Evidently, the conflict has gotten so bad that editing has halted and a mediator has allegedly been brought in to resolve the situation.

Now this rumor may be complete BS (although the rumor mill has been swirling for weeks that Taylor was taken off the film, right before composer Carter Burwell's exit a few days ago), but I thought it was unique opportunity to highlight an interesting little wrinkle in contract law.  Namely, that over-delivering on a contract is technically a breach and can result in a lawsuit for damages.

Holy Hell?  You can actually be sued for giving the other party more than they originally bargained for?  Yes you can, and if these rumors are true, it's exactly what Feige appears to be accusing Taylor of - breach of contract by delivering more movie than was originally requested.  It feels counter-intuitive to say that getting MORE than you paid for is somehow a negative thing worth suing over, and to some extent that's right.  It's rarely considered a bad thing to get more than you asked and if you were to sue over it, a judge would probably dismiss the case and maybe even hit you with a Rule 11 sanction for bringing a frivolous lawsuit.  That's probably why Marvel is bringing in a mediator instead of suing Taylor outright.  Why waste the time and money to sue the guy when a judge would just dismiss the case because of its inherent ridiculousness?

But a breach is a breach, even if benefits the aggrieved party.  There's a reason why high-level contracts like these are so time-consuming and expensive to put together; the parties have very specific needs and demands. You can bet your bottom dollar that if a provision ends up in a contract, no matter how absurd it seems,  it's important to the parties that it gets carried out exactly as written.  Any deviation from the terms of the contract is considered a modification, which is not enforceable without the approval of both sides.

And anyway when you think about it, over-delivering on a contract can actually be a negative thing in some situations.  Movie studio generally hate long films because they can't schedule as many showings - 5 to 6 showings per theater per day for a two hour film as opposed to 3 or 4 for a three hour film - meaning the film will make less money during its theatrical run (Although Avatar and The Lord of the Rings films bucked that trend). Marvel is not, after all, a charity.  They want to make as much money as they can, and they've contracted with their talent a certain way to achieve that goal.  If Taylor's contract does indeed specify that he is to deliver a two hour film, and he breaches that provision by delivering a movie that's 30 minutes too long, then it could actually be detrimental to Marvel.  Marvel will be required to spend extra time and extra money they hadn't planned on to edit the film down to the requested two hours.  Reasonable minds can argue whether it is financially or artistically prudent to predetermine a film's running time before a director has even been hired, but Marvel has determined what it wants, has contracted to get what it wants, and is perfectly within its right to enforce that.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA