Orchestra Sues Disney Over `Fantasia' Profits

PHILADELPHIA - When conductor Leopold Stokowski bent down to shake the hand of Mickey Mouse in the 1940 film "Fantasia," he made cinematic and animation history, but was he also symbolically sealing a contract? The Philadelphia Orchestra thinks so, and has taken its case before U.S. District Judge Joseph L. McGlynn Jr. and a federal jury in Philadelphia.

The Philadelphia Orchestra Association is suing the Walt Disney Co. and its subsidiary Buena Vista Home Video for damages and what it believes should be its share of the profits from Disney's sale of video cassettes of "Fantasia." The orchestra first filed the suit in May 1992 and observers feel that it is a significant test of the definition of contracts.

McGlynn has kept most of the financial details of the case confidential. The orchestra's lead attorney, David H. Pittinsky, said the suit seeks damages for breach of contract and for the use of the orchestra's name in packaging and selling the cassette version.

When Stokowski and the Philadelphia Orchestra recorded the soundtrack for "Fantasia" in April 1939, both conductor and orchestra were playing under an agreement that barred subsequent royalties from the film's income. They were hired performers, not co-authors or owners of the film.

It was when Disney began selling "Fantasia" on videocassette in 1991 that the orchestra felt itself wronged. Its agreement with the film version was clear but, the orchestra argued, no one had even imagined videocassettes in 1939. Since the medium is relatively new, the orchestra argues that restrictions it had agreed to - covering its payment for participating in the motion picture - do not apply to sales of the videocassette.

After first filing the suit, the orchestra found in its files a one-page agreement signed by Stokowski's agent, Michael Myerberg, which said the Philadelphia Orchestra Association gave Stokowski and Disney the right to use the orchestra for recording the soundtrack, and also gave them the use of the orchestra's name for publicity and advertising.

The words "feature picture" were used in this agreement, and the meaning of those words is at the center of the controversy. Disney's attorneys, led by Patrick T. Ryan, say the agreement covers all forms that "Fantasia" might take.

Ryan could not be reached for comment.

This line of argument already has cost Disney in another instance. The company lost a case in 1992, in which singer Peggy Lee was awarded $3.2 million in royalties in California Superior Court from videocassette sales for "Lady and the Tramp." In that animated film, she sang the parts of four characters. She sued after the movie was released on video.