Los Angeles Times, February 19, 1991
The Lady and the Lawsuit
Sitting in her wheelchair, frail and with failing eyesight, singer Peggy Lee hardly fits the image of a Hollywood giant killer.
But when the 70-year-old Lee rolls her chair into Los Angeles Superior Court on Wednesday, she thinks she has a good chance of bringing the mammoth Walt Disney Company to its knees, or at least to its checkbook. Lee is suing Disney for $50 million, charging breach of contract and unlawful enrichment over the videocassette release of Lady and the Tramp.
Lee has already convinced the court that Disney violated their original 1952 contract by releasing the tape without her permission. Lee co-wrote six songs and performed the voices of four characters in the film, which has earned more than $140 million altogether – $90 million alone from the video sale, according to her attorney.
But while the court has agreed with her on the facts of the case, the initial ruling against Disney was by no means the end of the road. A trial is necessary to determine what, if any, award should be granted to Lee. And Disney has vowed that as soon as the proceedings are over, it will file an appeal.
"I put my whole heart and soul into this 30 years ago," says Lee, who continues to perform songs from the film in her concerts, "and I deserve to have my contract honored."
In Lady and the Tramp, Lee provided the voices for the characters of the torch-singer dog Peg, the Siamese cats Si and Am, and Lady’s owner Darling – and was paid $3,500. She and her writing partner, Sonny Burke, earned another $1,000 for the use of six songs he and Lee collaborated on for the movie. The pair retained all rights for phonographic recordings and transcriptions, but their contract – like the contracts of most performers of the day – didn’t foresee the advent of video and the huge audience it would provide for their work.
According to attorneys on both sides, the case hangs on the court’s interpretation of the term transcription.
Disney is arguing that the term, as it was used in the 1952 contract between Lee and the studio, was not intended to cover future technology, such as video.
"Our position… is that the term referred to audio recording discs, primarily used in radio broadcasting," Clair said. Disney, he said, retained the right to use Lee’s voice for radio, television, and according to the contract, "all other improvements and devices which are now or hereafter may be used."
But Deborah Nesset, Lee’s attorney, argues that Lee retained the rights to transcriptions in order to protect herself against just such a claim by Disney. Nesset insists, and the court has agreed, that a "transcription" is simply a copy of Lee’s work – in any form.
Ironically, in another case, Disney itself made the argument that a transcription is simply a copy. Disney won that case, which was filed in 1969 against the Alaska Television Network, which had been broadcasting Disney productions without permission.
Clair insists that there is no contradiction, explaining that in the earlier case, the word "transcription" was used as it had been defined in 1909, when the U.S. copyright law was written, not as the word was used in Lee’s case in 1952.
It’s been nearly 40 years since Lee, then a popular big band singer and songwriter, agreed to help her friend Walt Disney make an animated feature about a dog from the wrong side of the tracks who falls in love with a pampered uptown pooch named Lady.
Lady and the Tramp was a theatrical success in the mid-50s, and was re-released several times. It was a major hit on video, outstripping Top Gun as the hottest video seller of 1987. More than 3 million copies were sold.
"When they came out with the cassette, I thought I would look at my contract," said Lee. She did, and after consulting with an attorney, determined that the portion that forbade Disney to make and sell transcriptions could be applied to videotapes.
Lee is not the only performer to sue for video rights: Mary Costa, who provided the voice for Disney’s Sleeping Beauty, filed a lawsuit almost identical to Lee’s in Florida last year, and another suit has been filed on behalf of the performers in Cinderella. The estate of Fred Astaire is suing CBS for using the late star’s films in television and video productions without permission. All the cases are still pending.
"People are coming out of the woodwork and suing about this," said Nesset, Lee’s attorney, but it’d a difficult road. "A lot of these people are quite elderly. A lot of people are dead. When the estate brings a lawsuit, it’s not going to be as effective as the actual performer."
According to Thomas White, an entertainment industry consultant who is chief adviser to the estate of Fred Astaire, the performers tend to win, but they must be willing to put up a fight.
"The film companies, by virtue of the fact that they are controlling the print [of the film], think they can do whatever they want," said White. "And they continue to do that until the artists assert their rights."
Peggy Lee is no stranger to the need to put up a fight. She has been fighting for her life for years.
Disabled by successive falls that twice broker her pelvis, Lee refuses to stop trying to walk. Her wheelchair is not motorized, because "I plan on walking." With the help of an assistant, she moves every day from her wheelchair or bed to a stationary bicycle, where she exercises her legs as much as possible. Every day, she attempts to take a few steps.
Bedridden with a heart condition for the past several months, Lee used the occasion to write a children’s book. When her eyesight failed, she hung on until a combination of doctors and perseverance actually brought some of it back.
She continues to sing, despite a goiter that rests near her vocal cords, and to tour, performing seated on a raised platform. Her latest album, The Peggy Lee Songbook: There’ll Be Another Spring, won her a Grammy nomination for best female jazz vocal performance.
by Sharon Bernstein