“Unacceptable Business Conduct”

When I heard that Disney’s rationale for dismissing Steve Whitmire from the Muppet Studios was “unacceptable business conduct,” I laughed–loudly and derisively, without mirth.

Paging Mr. Kettle: Phone call from the Walt Disney Company regarding your color!

Disney’s shady business dealings are the stuff of legend.  They could fill several books–and have.  What follows is not intended to be a comprehensive account of Disney’s propensity for screwing people over.  We’ve got a loooong journey ahead of us; this is just the first step.

Let’s start with the lawsuits.  Disney’s go-to approach to any problem or conflict or disagreement seems to be to file–or threaten to file–a lawsuit  And given that Disney is worth billions of dollars, they make a formidable opponent because they can (a) afford to keep a phalanx of lawyers on retainer and (b) potentially outlast any opponent because they have deeper reserves of financial resources than most of the opponents probably do.

Now, that’s not to say that all of the lawsuits are spurious.  In some instances, they had a legitimate case to make.  Nevertheless, I would argue that Disney’s aggressive litigiousness may be costing them in ways they don’t appreciate: intangible things, like good will towards their company.

In her book The Keys to the Kingdom, Kim Masters describes how, in 1989, Disney “ordered three day-care centers in Florida to paint over Disney characters on their walls.”  Now, admittedly, in that instance Disney had a legitimate case; the paintings in question had been unlicensed, and there was a valid argument to be made that Disney’s copyrights had been infringed upon. And yet, perhaps there’s also an argument to be made that having the Disney characters associated with the daycare would actually help their (Disney’s) brand recognition and brand loyalty among the children attending the daycare, if the children at the daycare center associated the characters with a place where they were safe and nurtured and cared for.  Maybe there was a possibility of a deal that could be worked out between Disney and the daycare centers that would have been beneficial to everyone: Disney, the daycare centers, and the kids themselves.

Masters argues that “Disney’s unyielding stance began to take a toll from a public relations standpoint.”  In other words, people didn’t take kindly to the notion of a bunch of Disney lawyers marching, Gestapo-like, into what was supposed to be a safe place for children in order to serve their papers.

Disney’s rivals noticed was was going on, and took advantage of it.  According to Masters, the owners of the Hanna-Barbera characters “capitalized on the Florida case by painting Flintstones characters over the Disney figures and throwing a party for the kids.  Lest anyone miss the point, the media were invited, too.”  Their motives may not have been pure, but at least they did something nice for the kids, whereas Disney doesn’t seem to have taken them into consideration at all.

Disney takes a hard-nosed approach when it comes to protecting its copyrights, but what do you do when the copyright law is not in your favor?  Well that’s easy, of course: get the law changed.  The original Mickey Mouse short film, “Steamboat Willie,” was supposed to fall into the public domain in 2003, but Congress revised the copyright law in 1998 to extend the copyright until 2023.  In fact, every time the earliest Walt Disney shorts are supposed to fall into the public domain, Congress “just happens” to change the copyright law in order to extend it.  What an unbelievable coincidence!

It’s not a coincidence.  Michael Eisner reportedly traveled to Capitol Hill himself to lobby then-Senate Majority Leader Trent Lott in favor of the copyright extension bill in 1998.  One can only imagine what Eisner offered Lott in exchange (a Disney Legend Award, perhaps?) but whatever it was, it worked.  But apparently it wasn’t the first time or the last time that Disney stuck its shiny, bulbous nose in to try to change public policy in a way that would be beneficial to its profit margin: “Disney’s campaign, conducted almost entirely behind the scenes, is typical of what industry insiders say is a company that jealously guards its image as a marketer of family entertainment instead of a savvy business and political force,” asserts Alan K. Ota.

Two points I want to make about this: (1) Copyright laws are supposed to protect the rights of authors and artists, not line the pockets of greedy corporations.  (2) The widow of Congressman Sonny Bono, for whom the bill was named because he had co-sponsored a similar bill before his untimely death, said that “Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution.”  The staff is right; Article 1, Section 8, Clause 8 of the Constitution is very clear that copyrights are only to be secured for a limited time.  (Thank you, James Madison.)  And yet, by extending copyrights every few years, whenever Disney’s or another company’s copyrights are in danger of expiring, isn’t that a way of getting around the Copyright Clause on a technicality, perverting the Framers’ intention by extending copyrights indefinitely, but only in relatively small increments?  I know it’s not the worst Constitutional crisis we are facing at the moment, but still: “With the first link, the chain is forged…the first freedom denied chains us all irrevocably.”  (“Wisdom and warning,” indeed.)

And by the way, these proactively “aggressive tactics,” as Masters puts it, deemed necessary by the Disney company to protect its rights to its characters, seem to be very much counter to the way that Jim Henson conducted his business.  On the one hand, per Jones’ Jim Henson: The Biography, he could be assertive in defending his property, pointedly telling his manager, Bernie Brillstein, “never sell anything I own,” and in Street Gang, Michael Davis describes how Jim hammered out a deal that would ultimately be mutually beneficial both to him and to the Children’s Television Workshop, and yet the CTW lawyers grew weary of the “hard bargain” that Jim was driving to keep ownership of his characters and complained to Jon Stone that “[Henson]’s killing us with demands” (which sounds a bit familiar).  On the other hand, both Caroll Spinney and Steve Whitmire claim that Jim was willing to pick his battles when it came to copyright infringement, understanding intuitively what had the potential to do damage to him and his brand, and what was not worth his time to pursue.

And yet, as aggressively as Disney guards their own rights and their own interests, they can be almost childishly myopic when it comes to those of other people.  A good example of this would be the late, lamented Robin Williams.  According to Masters, Williams was hesitant to take on the role of the Genie in Aladdin, but after seeing the design of the Genie and deciding that the role would be one that his children would enjoy, he not only took on the role but agreed to do it for scale, i.e., the lowest daily salary that the Screen Actors Guild will allow an actor to accept (in this case, $485 per day).

“But if he was going to work for so little money,” Masters continues, “Williams laid down some conditions.  He insisted that Disney not use his voice or the Genie image (which he considered to be a caricature of himself), in any tie-in promotions.”  Basically, Williams didn’t want Disney making a whole bunch of money off of his face and his voice when he was agreeing to work for them for so little.

It was a reasonable request, and Disney honored it…at least at first.  “Disney met his terms through the opening of the film,” says Masters.  “But when Disney created some new advertising for it, including a poster that showed the Genie’s face, Williams felt that he had been exploited.”

There were multiple instances of Disney breaking the good-faith agreement that it had made with Robin Williams in regard to not using the Genie in promotion or merchandising.  A TV commercial that featured one of the Genie’s alter egos, with another actor dubbing the voice, was “the final straw” as Masters put it: “The studio argued that the voice was not a sound-alike, but Williams vehemently disagreed.  He felt that Disney had violated the spirit, if not the letter, of its deal.”  According to Williams himself, it wasn’t so much that they had used the outward visual image as that they had tampered with the voice: “But the voice, that’s me; I gave them my self,” he said in 1993.  

Predictably, on going public with his grievances against Disney, Williams was “repudiated” by an unnamed source at the studio, accusing him of “sour grapes,” and being ungrateful for the early boost he got to his career by the movies Good Morning, Vietnam and Dead Poet’s Society, which were released under the Disney-owned Touchstone imprint. “In true Hollywood fashion, people’s memories aren’t that long,” sighed the unnamed source mournfully.

Gee, that all sounds astonishingly familiar, doesn’t it?  The lyrics are a little different, but the tune hasn’t changed.

And lest anyone think that this is something that just happened back in the ’90s and went out with Michael Eisner in 2005, some of the voice actors in the 2013 mega-hit Frozen reported that they hadn’t gotten their fair share of the ice cream cake either.  “The thing made a couple billion, I made a couple thousand,” said Josh Gad (aka Olaf), which may have been an exaggeration.  And yet, the young voice actress who played teenaged Elsa was only given a base pay of $926.20–although, admittedly, that was only for one day’s work, and she has reportedly earned more in residuals.

Taken individually, perhaps any of these complaints could be dismissed as the temperamental whining of a spoiled actor who got greedy after the fact and then started pouting when he/she didn’t get his/her way.  But look at them collectively and, to co-opt a phrase from a former adversary, it begins to look like what lawyers call a “pattern of behavior.” 

And that’s really what I’m trying to do here, to make the case that what happened to Steve in this scenario is not unique, is not unprecedented, is not an aberration but is, in fact, part of a pattern of corrupt behavior in the Disney Company that goes back at least 30 years, and maybe longer.

To that end, I’d like to tie this all back to something that happened in Steve’s situation, particularly because it took me so long to figure out the insidious implications of it.  What follows is the interview that Steve gave to the Today Show on July 20th:

The part that is relevant to our discussion here starts at 03:15, and I’m just going to quote Steve directly:

“[The Disney execs] were saying, […] ‘We’re not ever going to have you back again.  We refuse to offer you a chance to remedy this.’ […] but they were also offering me things that I sort of called ‘consolation prizes’:  They were going to honor me–give me Disney Legends awards, things like that–but that required signing [a nondisclosure agreement], and what they really wanted was for me to frame this as I ‘moved on’ and that I had ‘retired.’  And it was just disingenuous; I couldn’t bring myself to do it.”

Steve very nicely, and very diplomatically, uses the phrase “consolation prizes” to describe what Disney was offering him in exchange for his cooperation, which is to his credit.  Therefore, it took me a while to realize that there’s another word for what Disney was attempting: bribery.

Bribery is broadly defined as: “the act of giving money, goods or other forms of recompense to a recipient in exchange for an alteration of their behavior (to the benefit/interest of the giver) that the recipient would otherwise not alter.”  Specifically, the Disney Legends Award would fall under the category of “other forms of recompense,” and in this case they were trying to pre-emptively alter Steve’s behavior; i.e., they wanted him to keep quiet when his inclination was to speak out.  It may not be bribery in a strict legal or criminological sense, but in a wider ethical sense, it absolutely qualifies.

And even though it’s been over two months since I found out about this, the more I think about it, the more infuriated I become that they could be so cavalier about taking Steve’s life’s work away from him, and then turn around and attempt to buy his silence with “shiny beads and shallow flattery.”  Talk about adding insult to injury. 

An award is supposed to be a recognition of excellence, not a quid pro quo.  I shudder to think what the past recipients of Disney Legends Awards have had to give up to Disney in return for the “honors” that they received.  In fact, in 2011 Jim Henson was posthumously awarded one, which was accepted by his kids.  Knowing what we know now about how Disney uses–or, at least, has attempted to use–those awards as leverage, it may go a long way towards explaining the recent behavior of the Hensons in regard to Steve, although that is pure speculation on my part.

No one is safe at Disney.  Even the family name wasn’t enough to protect Roy E. Disney, nephew of Walt himself.  As described in DisneyWar by James B. Stewart, in 2003 the Disney board of directors’ governance committee attempted to force Roy to retire from both the company and the board of directors on a technicality, although they were more than happy to keep Roy (who bore an uncanny resemblance to his Uncle Walt) on as an “honorary director”–a ceremonial figure with no voting rights–so that they could make a mascot of him and “parade him around” at special events “like one of the Disney costumed characters.”

Why?  It’s far too long and complicated a story to detail right now, but essentially, Roy Disney had an acrimonious relationship with Michael Eisner who, in the words of Stewart, “had clung to power with a King Lear-like intensity, convinced that he and he alone had the creative instincts and managerial skills to shepherd Disney into a twenty-first century world.”  Eisner was so paranoid that, as Stewart reports, he planted a spy in the animation department to observe and report on Roy’s activities.  Apparently, once a convenient excuse presented itself, Eisner thought it would be more expedient to try to get rid of Roy altogether (a plan which eventually blew up in Eisner’s face).

Hmmm…one of the last people with a direct link to the originator of a beloved property is ousted from Disney because he disagrees with the current management?  And is then offered shallow honors as a “consolation prize,” complete with strings attached?  That, too, sounds awfully familiar…

This post is not the culmination of my case against Disney; this is just the first installment in what I anticipate will be a series of articles dealing with the “unacceptable business conduct” engaged in by the Walt Disney Company.  You may ask, “How long a series?” My answer:  As long as necessary.  Right now I have firm plans for at least three articles, and nebulous ideas for a few more.

But rest assured: there will be other posts.  I’m not going anywhere, and I’m not done with Disney yet…not by a long shot. 

(Alas, things have come to a sorry pass when I’m posting a Paul Williams song on a Muppet blog with irony.)

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