‘Escape From Tomorrow,’ an independent film about a father’s descent into madness — set and shot at Disney theme parks – premiered over the weekend at Sundance. The filmmaker did not get Disney’s permission to shoot or to portray any Disney characters, rides, marks, and so on, leading the New York Times to conclude that the film “would seem to test the limits of fair use in copyright law.”
Would it? It seems to me that the film has a pretty strong claim to “transformative use” of Disney’s copyrighted works, in the sense that (as news reports indicate) the theme and tone of the film quite purposefully and substantially, er, differ from the theme and tone of the works themselves. Trademark law is relevant, too, although the Times report doesn’t mention it. The law of free speech and fair use as applied to trademarks is less than fully consistent or coherent, but I think that the filmmakers have a decent claim here, too. Disney’s marks are precisely the sort of things that are so ubiquitous in American culture (even world culture) that it is difficult to imagine speaking about Disney — and critiquing Disney — without using them. (And who has visited a Disney park as a parent and not felt just a little crazy?) Perhaps resort to fair use would not be necessary; based on reports describing the film, it seems extraordinarily unlikely that a reasonable consumer would think that Disney produced, sponsored, or endorsed it.
That said, I’m a little uncomfortable with simply skipping over the fact that the film was shot entirely inside the parks without Disney’s knowledge or consent. The filmmakers didn’t trespass, so far as I can tell. I don’t know whether Disney has an announced policy that prohibits or limits film production in the parks. But there would seem to be a well-established industry custom that limits location shooting in private spaces to situations where the property owner has given explicit consent. This isn’t quite a question of “good faith,” a factor that older fair use cases sometimes commend; ‘Escape From Tomorrow’ didn’t “steal” anything, as the Supreme Court concluded that the manuscript copy of ‘A Time to Heal’ was purloined by the infringer in Harper & Row v. Nation Enterprises. Quite aside from what reputational harm Disney may or may not claim, how should the circumstances of the film’s production matter?
Do you think Disney will bring suit, Mike? I sort of doubt it — they’re pretty sophisticated strategists and I imagine they are familiar with both the Streisand effect and the potential here for a transformative use argument. I have seen several journalistic pieces suggesting this crosses the line, but I haven’t seen any IP lawyers agreeing with that analysis, and I think what you are saying here makes sense.
Re unauthorized filming — I don’t see much of an argument there for Disney. Trespass? It seems relevant to me that to the extent that Disney has a prohibition against filming, they don’t seem to enforce it. I would presume the majority of people who have smartphones in the park are using them to take video and that a fair number of them are sharing that video — I doubt that Disney is specifically enforcing any limitation on filming (though I haven’t investigated whether such a limitation exists and what its scope might be). Maybe there is a “professional norm” against filming in amusement parks without permission, and maybe the fact that there’s a potential profit for the creators here changes the situation from your typical YouTube video, but I can’t see how that difference creates a clear legal claim. I could spin out some theories, of course, but there’s nothing obvious that jumps out at me.
At this point, given the celebrity of the film, I would be surprised if Disney makes a move. As to the “trespass” claim, which has attracted some attention in the commentary, I’ve looked around to see whether Disney has posted a policy regarding filming in the park, or includes a policy on its tickets that arguably creates some obligation not to film. I haven’t found anything.
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