In July, Buzzfeed News ran an article with the headline, “Disney Won. Now What?” It’s a worthwhile question in the aftermath of the company’s purchase of 20th Century Fox from Richard Murdoch. The purchase of Fox is the largest in a long line of high-profile acquisitions by Disney that have included Pixar, Marvel Entertainment, and Lucasfilm. For the first time since the mid-twentieth century, a single film studio threatens to monopolize the industry.
With Disney’s monumental money moves in mind, recall the case of the United States v. Paramount, the contentious landmark antitrust battle that finally closed in 1948. The lawsuit effectively put an end to the Hollywood studio system of the Big Five (Paramount, Warner Bros., MGM, Fox, and RKO) that had dominated the industry for decades, and erased the role that vertical integration had played in movie distribution and exhibition. In response, the Big Five decided to buy, own, and operate movie theaters, meaning the studios controlled which films would be shown. The system operated via “block-booking,” with studios packaging a popular film alongside a bundle of B-pictures made by the same company, often via agreements made before films were even produced. If an independent theater wanted to screen a popular movie, they had to buy the full bundle. In that market, independent producers and exhibitors were left in the lurch. (In the 1946 case Bigelow v. RKO, theater owners charged that major distributors like RKO had been deliberately preventing independent movie houses from showing first-run films.) The decree in 1948 forced the studios to exit the theaters and to limit block-booking to only a few films. It may not sound debilitating, but it was a remarkable blow to the major studios, which had enjoyed the most profitable period of the young artform’s existence during and immediately following the Second World War.
While United States v. Paramount decision offered effective methods for changing the structure of the film industry in the name of a so-called competitive free market, it also meant that studios drastically cut down on the number of cheaper films they chose to make (think of the way many major studios today spend hundreds of millions on a handful of risk-free blockbusters and far less on “riskier” small movies). The industry became more volatile, according to Peter Labuza, a historian and PhD candidate at the University of Southern California and an expert in Hollywood litigation. “Theaters were starving for content in the fifties and sixties,” he told me. “Eventually, it settled into relationships between two companies instead of just one,” — meaning between a studio and a venue — “but these relationships are still very, very exclusive.” That structure continues today, as we remain in the dark about negotiations between studios and theater chains that dominate the market. As a result, we’ve seen the death of independent movie theaters. “Even if those smaller theaters want to show the new Disney movie, they can’t afford what Disney wants them to pay for it,” Labuza explained.
The industry’s volatility, including the rise of many smaller companies looking to pick up the B-movie slack, ultimately led to industry deregulation in the Reagan years. The era saw an unprecedented number of mergers and acquisitions that combined film, television, and media companies into gigantic conglomerates such as NBC Universal, ABC, and Disney. (What better way to beat the threat of television, film companies surely thought, than to simply absorb them?) “What the Reagan administration does is create these empires of entertainment,” Labuza told me. Since then, much has changed — the introduction of the Internet, for instance, and the advent of streaming and online content providers. An obvious new strategy has emerged that Disney has come to dominate in: horizontal integration. Since 2006, the company has acquired Pixar, Marvel, Lucasfilm, and, most recently, 20th Century Fox. Labuza stresses that contextualizing the role size plays will be crucial for understanding what antitrust can do moving forward. In the Yale Law Journal, to the “architecture of market power in the modern economy,” asking, “Does our legal framework capture the realities of how dominant firms acquire and exercise power in the internet economy?” The question brings us to Disney+.
Set to launch on November 12, the on-demand streaming platform will host all kinds of Disney content including that of its subsidiaries, along with exclusive new content such as television shows for Marvel characters like Hawkeye and Loki, the Star Wars series The Mandalorian, and a live-action remake of Lady and the Tramp. Labuza says that Disney+ resembles the situation that led to United States v. Paramount in the nineteen-thirties and forties. “They’ve created the interface where you find their content, and only their content, and you need to pay to access it,” he said. “The big antitrust question is whether they have a shelf life to exclusivity, where they make deals with other companies to stream elsewhere, which would help it curb the exclusivity part of the antitrust laws.” Presumably the prospect of adding Fox’s vast troves of films and television was a motivating factor for Disney’s $71.3 billion purchase of the company, because having exclusive streaming rights to particular properties like The Simpsons (which Disney+ will own) is becoming a much bigger factor in the streaming wars. (New releases won’t appear on Disney+ right away, since Fox has a deal with HBO until 2022.)
The addition of Disney+ to an online environment already dominated by Netflix, Amazon, and Hulu (which Disney is a majority shareholder in), signals that our current antitrust laws may not adequately serve the needs of a platform economy, as Khan pointed out. Moreover, Disney already has a stranglehold on content. Many theaters around the country (especially outside major urban areas) are currently showing The Lion King; Toy Story 4; Spider-Man: Far From Home; Avengers: Endgame; and Aladdin — give or take the new Tarantino offering and a killer alligator movie. A key aspect of Disney’s ability to get away with these horizontal power plays, Labuza says, is the significant amount of goodwill attached to the company. Disney benefits from the public affection and nostalgia associated with a longstanding kid-friendly organization; its reputation has been buoyed in recent years by increased diversity in its major blockbuster casting and the company’s perceived progressive politics. (For one of the cruder examples of Disney’s attempted woke-ness, consider of the female hero photo op in Avengers: Endgame, which offers an olive branch image of female solidarity from a franchise that largely ignores its female characters). It’s difficult in that environment to send the message that monopolization isn’t good for us. Despite Disney’s careful construction of an impenetrable image of social justice and inherent goodness, we should remember that these decisions aren’t being made purely out of the wholesome nature of Disney’s heart: the branding is also a convenient counter to any potential critiques of the company’s industry domination.
Disney’s guaranteed success on the eve of the Disney+ launch is determined precisely due to its acquisitions in recent years. Putting aside Disney’s own studio output, Marvel, Pixar, Lucasfilm, and Fox all have remarkably strong brand identities. That perceptual division is central to Disney’s image as benevolent overseer. “As long as those identities remain split up, in that you don’t think of Disney when you think of the new Star Wars movie, for example, then the idea that Disney is a corporate behemoth that has taken over everything will remain limited in the public’s eye because it doesn’t really feel that way,” Labuza explained. As for the legal side, he added, “I just don’t know if there’s actually the political capital right now to litigate these things.” It seems likely that, on the current trajectory, Disney will saturate the market and smaller studios will be forced to downsize and focus on smaller-budget fare to differentiate themselves.
Having staked out claims in the release calendar until 2027, Disney is strategically planning handoffs (think Endgame toAladdin, Aladdin to Toy Story, Toy Story to Lion King) throughout each year, stifling the competition. (This summer has seen most non-Disney blockbusters underperforming). Tapping into that well of goodwill, audiences expect Disney movies to be good, and so seek them out. Other films suffer because Disney has snapped up many established and market-tested properties (Marvel, Star Wars) simultaneously, and now effectively commands the franchise economy. Of course, another possible outcome of saturation is audience fatigue. It should become clear over the next year or two how sustainable this model will be for Disney. In the meantime, the Mouse House marches on — like Empire stormtroopers, or like Thanos’ army, or like Woody and the gang, or like the X-Men — benevolently devouring everything in sight.
Jake Pitre is a PhD candidate at Concordia University in Montreal, whose work has appeared in Pitchfork, the Globe and Mail, Polygon, and Columbia Journalism Review. @jake_pitre