Is That All There Is?

by James Gavin

  Sharon Bernstein of the Los Angeles Times made no attempt to hide her sympathy. “Sitting up in her wheelchair, frail and with failing eyesight, singer Peggy Lee hardly fits the image of a Hollywood giant killer.” Lee sounded winded as she pleaded for justice. “I put my whole heart and soul into this thirty years ago,” she told Bernstein, “and I deserve to have my contract honored.”

  But underneath the illness and age resided an iron will. “I’m still doing sold-out performances and getting standing ovations all over the place,” she declared. “They’re trying to wish me gone, but I’m not. I’m still here.”

  In the press, anti-Disney sentiments mounted; Barron’s, the weekly financial Bible, called the company’s executives “control freaks.” In an ill-timed juxtaposition of cases, Disney had crossed swords not only with a seventy-year-old icon in a wheelchair, but with the world’s most beloved set of talking animals, the Muppets. Henson Associates, Inc. had sued Disney for the unauthorized sale of Muppet-themed merchandise and unlawful use of Muppet characters in its films. Disney had filed a counterclaim of fraud.

  All this proved catnip to the readers of the daily trades. The court had chosen twelve middle- to lower-income jurors. They may well have known and liked Peggy Lee; but her opponent held its own weight; it wasn’t a faceless corporate monster like Exxon, but Walt Disney, a name that evoked images of cute dwarves and cuddly deer; of handsome princes, Snow White, and Cinderella.

  Now the controlling figures had gathered in the cold, clinical space of a courtroom for two weeks to fight over eight-figure sums. TV cameras were there—a rarity in court—to publicize a case that was shot through with drama. Up front were the stars. Stephen M. Lachs—who would later mediate divorce hearings for Janet Jackson and Tony Bennett as well as two child custody cases for Michael Jackson—sat on the bench. He wore a black robe, a mustache, wire-frame glasses, and a stern look. There to represent Disney was Roy L. Reardon, a “confident, button-down-shirt-kind of New York lawyer,” as one observer saw him. His foes, David Blasband and Neil Papiano, would take turns arguing Lee’s case. Their client sat in her wheelchair, her mournful black dress in stark contrast with her white scarf and wig, which framed a haggard face. “Almost in front of the jury,” recalled Lachs, “they stacked, like, four, six oxygen tanks, which they said were absolutely necessary for her to have right there, at the jury box, just in case. That kind of little game was obviously going on.”

  Reardon knew how hard it would be to convince a jury that Lee deserved little. As the trial wore on he came to feel that Lachs, too, was squarely in Lee’s corner—yet even Reardon didn’t doubt the importance of her role in the film.

  The summary judgment had established Disney’s guilt; it was the jurors’ job to determine the amount of damages, based on their assessment of what Lee had contributed to Lady and the Tramp. Lachs had approved a request from Lee’s team to screen the entire film in court, along with Walt Disney’s Cavalcade of Stars, the 1955 TV program that showed staged scenes of Lee writing songs with Sonny Burke, working with the Disney team, and recording “He’s a Tramp.”

  Once more, Lady and the Tramp was a hit. Jurors and the public grinned as the dogs slurped spaghetti in an Italian restaurant to a soundtrack of Lee and Burke’s song: “This is a night, it’s a beautiful night, and they call it bella notte . . .” They laughed at the stripper moves of showgirl-mutt Peg, who in Lee’s voice sang “He’s a Tramp” while a canine chorus howled. Looking back on the trial in 2014, Lachs called it “the only case I’ve had where we sat through a full movie in court. It’s a film that to this day will bring tears to my eyes. The jury was watching the film, which has wonderful music, and yeah—you became very sympathetic.”

  In the testimony that followed, Lee gave a performance as shrewd and winning as any from her musical heyday. Speaking directly to the jury, she talked of all she had done to influence Lady and the Tramp—including her successful plea to Walt Disney to not let Lady’s friend Old Trusty, the aged bloodhound, die in the film. Lee wove in amusing stories about her career, while making much of the fact that “dear Walt” would never have wanted her to be treated like this.

  Blasband kept an eye on the jurors. “They were rapt,” he said. “They couldn’t help but like Peggy Lee, and they couldn’t help but want to do something good for her.” Reardon’s job was getting much tougher. Blasband had nothing but admiration for his opponent. “What a lovely guy,” he recalled, adding: “Roy, in my opinion, is the best trial lawyer I’ve ever seen, and a class act.”

  The plaintiffs hadn’t brought him many witnesses to cross-examine. William Zulager, Disney’s director of financial reporting, testified as to how much the company had earned from the tape. The figures were impressive: a $72,236,000 worldwide gross, with net profits of $36,875,000. Then came the appearance of Lee’s “expert witness,” entertainment lawyer Marc Bailin. Lee’s counsel had hired him to perform a nebulous task: to scrape up whatever facts, figures, and precedents he could in order to substantiate the maximum damages possible.

  Using the reported gross for the video, Bailin stated that according to “industry norms,” Lee deserved 12.5% of the gross—$9,027,000. The figure, he claimed, incorporated all that Lee had contributed, including four character voices and big-name clout.

  Reardon lost patience. This man, he countered, knew nothing about the animated film industry or how much its voice actors deserved to make. Bailin’s main credential was his negotiating for Callanetics, a blockbuster series of exercise videos; otherwise, as he acknowledged, he had cobbled together his figures by reading about similar deals in the showbiz dailies. In a private huddle with the lawyers, the judge addressed Papiano. “I honestly am amazed,” he said, “that you couldn’t find anybody with more experience than this gentleman.” The attorney had to admit that it was all but impossible to find anyone willing to testify against Disney. Reardon tried to have the testimony thrown out, but Lachs let it stand.

  Throughout the case, Reardon had heard Lee and her counsel throw a lot of big numbers around. First she wanted twenty-five million, then fifty, then twelve and a half. Now they had settled on Bailin’s nine. “Where do these numbers originate, and on what basis?” asked Reardon.

  On Wednesday, March 13, Reardon began calling his own witnesses. Anne Daly, the Disney marketing executive who had handled the Lady tape, testified that its buyers were primarily mothers of small children—hardly Peggy Lee’s audience. The singer’s voice, she believed, hadn’t affected sales in the slightest.

  Next up was Katie O’Connell, Disney’s vice president of business and legal affairs. O’Connell declared that no Disney voice actor had ever received a piece of video sales. And if Lee had negotiated such rights, she would only have received—according to Screen Actors Guild guidelines—$397,000.

  In his cross-examination, Papiano tried vehemently to shoot down that claim. Peggy Lee, he argued, was not just another of Disney’s anonymous voiceover actor. She was a star—the reason Walt gave her special privileges. No proof of that claim had surfaced, but it didn’t matter; it gave the jury food for thought. So did the surprise move Papiano made while cross-examining O’Connell. He pulled out a multipage document and asked her if she had ever heard of Mary Costa, the voice of Sleeping Beauty. In his hand was Costa’s contract with Disney. “Did Mr. Reardon tell you that Mary Costa has also filed a lawsuit?” he asked.

  Reardon leapt out of his chair. “Oh, your honor, this is so improper!” he shouted. Accusing Papiano of “bizarre conduct,” he asked that the question be stricken from the record. Lachs declined, but he turned to the jurors and instructed them to disregard it; the fact was irrelevant to the case at hand. Even so, they had heard it, and it may well have swayed them even more in Lee’s favor.

  Disney’s witnesses surely did. In Blasband’s view, Disney had made a “big mistake” by recruiting pretty Jodi Benson, the voice of Princess Ariel in The Little Mermaid, to testify in their defense. Benson was there to help convince th
e jury that actors worked with Disney for the honor more than the money—and that voiceovers were but small cogs in the epic splendor of a Disney vehicle.

  Blasband cross-examined her. “She was so dazzled by Peggy,” he recalled, “that I remember her testifying to the effect that whatever the jury wanted to give her, she deserved that and more. She greatly weakened Disney’s position. She was probably the best witness we had except for Peggy herself.”

  Cheech Marin came close. Millions knew the Mexican-American comic actor as half of Cheech & Chong, the bong-smoking hippie hellions of motion picture and recording fame. Marin had made an unlikely leap to the Disney family of voiceover actors. Jeffrey Katzenberg had asked him to testify. But Marin happened to be a “big Peggy Lee fan,” as he said later. “I knew all her songs; I loved Lady and the Tramp and Pete Kelly’s Blues.”

  Now here he was, “a character reference for the defense,” as he laughingly recalled in 2013. What Katzenberg wanted him to do, he explained, “was testify that actors in general and me in particular had done animated film because we wanted to do it for our children, and we didn’t expect a lot of remuneration; that it was just a fun thing to do.” In his brief appearance in the box he felt the probing gaze of Peggy Lee and the halo of compassion that surrounded her. “I mean, she was in a wheelchair in the courtroom,” Marin recalled. The only way her team could have done better, he added, was “if they’d brought her in on a stretcher.”

  Under Reardon’s examination, he stated that he, too, had only earned minimal rates for his Disney work. It was the prestige that mattered—and besides that, he wanted to make a movie that was clean enough for his kids to watch before they turned eighteen. Everybody laughed—even Peggy Lee. “I wanted to kind of make light of the situation,” remembered Marin, “because I didn’t have anything of evidential value to give.” He slipped in a joke about his booking agency, International Creative Management (ICM), whose contracts, apparently, were just as ruthless as Disney’s; ICM, he said, stood for “I Cover Myself.” Once more, he saw Lee chuckling. “I thought, ‘I’m cool with Peggy! That’s cool!’ ”

  The fun stopped when Reardon called his prime witness: company executive Roy Disney, Walt’s nephew. Roy contradicted all Lee had said about Walt’s generous nature. In matter-of-fact tones, he testified that his uncle knowingly paid flat fees so that his company could keep the profits. Voiceover artists in Disney films, he said, never got royalties. “Any inference that the Disney organization was skulking around looking to do her out of video rights is unfair,” he announced. “You could pick up the contract and never think of videocassettes.”

  Furthermore, said Roy, the true stars of a cartoon film were the characters and the animators, not the voice actors. Lee was heard in the film for just a fraction of its running time, and her name didn’t appear on the video box; even in the credits of the film, hers was one of twelve names acknowledged under the heading, “With the talents of”—nothing more. In no way could it be proven that her name had influenced sales.

  Papiano glared at him and whispered to a colleague. Lee watched with hands folded and a look of contempt. Of all the slights she’d suffered, this was the worst: to have her work minimized as though it meant nothing. But in truth, her side could offer no proof that people had bought the tape because she was on it.

  The trial had worn down a woman who already felt terrible. But according to her granddaughter Holly, who sometimes accompanied her, her visits to court were “in a way also a show for her, because fans were there; they would meet her, cheer her on. She loved seeing the people.”

  Time had come for the jurors to determine damages. Lee’s counsel had named four issues for them to consider:

  •that Buena Vista Home Video had breached Lee’s contract by issuing the video without her consent;

  •that they profited unlawfully from doing so;

  •that Disney may have used the singer’s name and voice without permission in its domestic promotion of the tape;

  •and that Buena Vista and Disney—here regarded as separate entities—had done the same in its overseas marketing.

  Lawyers for both sides had agreed that the jury should treat each category as distinct, and calculate separate amounts. But because the points were “alternative theories”—recovery on different theories for the same damage, which was breach of contract—Lee would receive only the largest award, not the sum of all four.

  Concerned that the jurors might not understand, Blasband asked that their instructions be worded as clearly as possible. After some debate, the two sides settled on an explanatory line: “The award of damages is not cumulative.” Blasband was still worried, however, and he asked Papiano to elucidate the rule in his closing statement.

  On Friday, March 15, Papiano and Reardon spoke to the jury for the last time. Reardon held that Walt Disney had probably not intended for Lee to get anymore than she did. She may have been a big recording star at the time, he said, but in terms of voiceover work, she was a neophyte. To Papiano, the truth was all there in forty-year-old print. Disney’s lawyers, he contended, now “wanted to rewrite history and rewrite the terms of this contract. She retained rights, and that’s what she should be paid for.” The issue about the tallying of awards went unclarified.

  Monday, March 18, was deliberation day. Lachs sent written instructions to the jury room. The guidelines cautioned that Lee’s songwriting for the film and her helpful suggestions to Walt Disney were not to be considered. By Wednesday jurors were done. Court reconvened that afternoon. Until then, there had often been many empty seats in the courtroom, which held about a hundred spectators. But for the grand finale of Peggy Lee vs. Walt Disney Productions and Buena Vista Home Video, the place was as packed as Basin Street East.

  Excited murmurs followed the announcement of each award. For breach of contract, the jury had settled on a sum of $2,305,000. For Buena Vista’s unlawful profiting from the tape, $500,000. For foreign distribution without compensation to Lee, $200,000 against Disney and another $200,000 against Buena Vista. And for Disney’s unsanctioned use of Lee’s name and/or voice in its U.S. distribution, $625,000.

  Soon afterward, Neil Papiano enthused about this “victory” to Sharon Bernstein of the Los Angeles Times. Everyone hopes for more, he allowed, but this “$3.8 million award,” he told Bernstein, was “a very nice number and a nice judgment.”

  His comment ignored the fact that, according to the unanimously agreed-upon rules, Lee would take only the largest award: $2,305,000. Disney vice president Ed Nowak rushed to set things straight. Lee sat in her wheelchair, seething. This was far from the fifty or even nine million she had hoped to get; legal bills and taxes would erase much of the award. Papiano, a big-time celebrity litigator, now had an unhappy client who wasn’t known for keeping her feelings hidden. And reporters were outside, waiting to talk with her.

  Back in court, he insisted to Lachs that the jury had misunderstood the rules, and had clearly intended to give Lee the full $3.8 million. “To take that away would be a complete distortion of the justice system!” he thundered. Lee, of course, agreed. “I believe I’m entitled to a new hearing,” she said. “We had a very fine jury and the instructions they were given were very confusing. I didn’t understand them.”

  Her counsel quickly prepared an affadavit for the jurors to sign, where they would confirm that, indeed, they had intended to give Lee the full $3.8 million. Everyone complied.

  Just how effectively Lee had seduced the jurors became clear as they filed out of the courtroom and spoke to the press. “The message of the case is that a big company should treat Peggy Lee, or anybody, as a person,” said Albert Fong. M’elena M. Kaplan saw Lee as the savior that had rescued Disney from a potentially fatal slump in the 1950s. “I think she turned Disney’s business around,” Kaplan told a reporter. “Lady and the Tramp is the movie that made Disney what it is today.”

  At a follow-up hearing on April 13, Lachs rejected the affidavits. He took a hard bu
t defensible line: All had been explained to the jurors. If they hadn’t understood, they were free to ask questions. Furthermore, he noted later, “Lawyers are supposed to use part of their final argument to explain things that they feel are important to the jury. It was Papiano’s burden. He should have gone over that very, very carefully.”

  A weary Peggy Lee issued an “official” statement. “I accept the verdict for what it is,” she said. “It will at least show other artists that they should never be afraid, no matter how big the organization is.” Roy Reardon deemed her win “a compromise effort to reward an extremely sympathetic plaintiff.”

  Grasping at straws, Lee convinced her counsel to file a motion against Disney to recover an additional $473,313, the purported sum of every legal expense she had incurred since 1988—including xeroxing, the costs of her press conference, and whatever future expenses the case might require. The motion was denied.

  Meanwhile, Disney announced plans to appeal the Lee judgment. As expected, the company now faced a feeding frenzy of similar lawsuits. “People are coming out of the woodwork,” said Deborah Nesset, who had researched old Disney contracts meticulously. “A lot of these people are quite elderly. When the estate brings a lawsuit, it’s not going to be as effective as the actual performer.” Disney settled out of court with the Philadelphia Orchestra, which had played on the soundtrack of Fantasia, a huge seller on video. But suits by the heirs of the orchestra’s conductor, Leopold Stokowski, and by the publisher of Stravinsky’s “The Rite of Spring” (used in the film as background music), didn’t fly. Nor did a 1991 action by the production company that owned the rights to Winnie the Pooh, a Disney staple.