The orchestra's president, Joseph H. Kluger, said that "Disney and Buena Vista did not obtain the Orchestra Association's consent and did not compensate it for the sale of the video formats of Fantasia." He said that when the video versions were put on sale last fall, "the Orchestra Association had contacted" Disney and received no reply for several months. When the answer came, it was no.
"We were disappointed that they were not prepared to share in the profits. They left us no choice but to sue," said Kluger.
In California, Disney counsel and spokesman Howard Green said he had no comment.
When Fantasia appeared in 1940, it was heralded as a breakthrough in which classical music and Disney animation combined in a new art form. Conductor Leopold Stokowski became the symbol of that technological magic when, in the film, he bent from the podium to shake hands with Mickey Mouse. The orchestra recorded the score, which included Dukas' Sorcerer's Apprentice, Stravinsky's Rite of Spring, Tchaikovsky's Waltz of the Flowers, Mussorgsky's Night on Bald Mountain and other works; the recording was done in the Academy of Music in 1939.
The complaint notes that when a recording of the soundtrack was issued in 1957, Disney agreed to share the profits from that, but no such arrangement was offered to the orchestra for the sale of videos.
The suit, filed by attorney David H. Pittinsky, said that although video technology was not even imagined when the film was made, the cassettes and discs trampled on the Philadelphia Orchestra's ability to control the use or commercial value of its own name.
The orchestra originally agreed to perform the music for Fantasia for a film to be shown only in theaters.
According to figures compiled Jan. 24, Disney had sold more than 14 million copies of Fantasia for home viewing at that point. Total revenues were above $220 million with profits above $120 million. The orchestra wants half the profits, plus punitive damages and legal fees.
It also wants Disney to set up a trust to receive all profits from the sale of the cassettes and laser discs to accurately monitor future profit-sharing.
The Orchestra Association has been encouraged in its suit by the outcome of what's commonly called "the Peggy Lee Suit," in which the singer sued Disney for the use of her voice in videocassettes of the animated film The Lady and the Tramp. Lee had a contract protecting her rights to "transcriptions or recordings," and a Los Angeles Superior Court judge agreed that the videos constituted a transcription - and awarded Lee $3.83 million.
Although the orchestra did not have a contract with those provisos, the complaint argues that no agreement existed that would permit Disney to use the film for home-viewing formats. The orchestra said in its complaint that
because the animation and music were inseparable, the orchestra was "joint author" of the film.