Escape from Tomorrow is in many ways your typical low-budget indie film. Its shot in black and white, the actors arent famous, and the plot is surreal. There is one thing, though, that makes Escape completely different. The entire film was surreptitiously shot inside of Disney World. With what can only be described as generous bravado, the director, Randy Moore, bought season tickets and secretly filmed his actors at the theme park.
New York Times, Los Angeles Times, and other news organizations have speculated that Escape from Tomorrow must violate Disneys rights and that its lawyers will seek to have the film enjoined. At the Sundance Film Festival, where the film premièred this week, Moore was onstage answering questions when someone in the audience asked, roughly, Why did you put so much work into a film that violates so many laws?
But the underlying assumption of that questionthat Disney has a good trademark or copyright caseis wrong. Though the filmmakers may have committed trespass when they broke Disney Worlds rules and if it violated the terms of entry on their tickets, the film itself is a different matter. As commentary on the social ideals of Disney World, it seems to clearly fall within a well-recognized category of fair use, and therefore probably will not be stopped by a court using copyright or trademark laws.
Escape from Tomorrow is, essentially, a commentary on a shared social phenomenon, namely the supposed bliss of an American familys day at Disney World. In Moores version, the day is a frightening and surreal mess. The film isnt so much a criticism of Disney World itself but of the unattainable family perfection promised by a day spent at the park.
Its important to understand that Disney does not have some kind of general intellectual-property right in Disney World itself. It is not a problem to film the Magic Saucer ride. The case would depend on the appearance of Disneys trademarks or copyrighted works in the background of the film, like when Goofy wanders by or when we see the waving robots in Its a Small World. Filming these works without justification would be an infringement of the copyright law. The question is whether they are fair useor in other words, whether technical infringements are negated because they are justified by public policy. If there were a fire in Times Square, TV-news teams would be free to film there despite all of the copyrighted billboards in the background, given the publics interest in the reporting and the First Amendments protection of the press.
Under copyright law, commentary and parody are well-established fair-use categories, and this is where the film likely falls. It would be one thing if Moore merely used Disney World to embellish his filmto serve as a pleasing backdrop for some light romantic comedy. But his use of Disney World is not as simple window dressing; he transforms it into something gruesome and disturbing.
A fair-use finding also depends on the effect of the use on Disneys market for its works. It might be a violation if Moore had made a film designed for viewers who wanted to see Disney World but were too lazy to go to Florida. Escape from Tomorrow, however, is clearly no substitute for buying a ticket. Meanwhile, with relevance to the trademark law, there is no real chance that anyone would plausibly think that the film was sponsored by or affiliated with Disney.
A famous case over the artist Thomas Forsythes Food Chain Barbie series is similar to this one. In the late nineteen-nineties, Forsythe created a line of artistic photographs of Barbie under attack by various vintage appliances. According to Forsythe, he wanted to critique the objectification of women associated with [Barbie], and to lambast the conventional beauty myth and the societal acceptance of women as objects because this is what Barbie embodies. His work made just thirty-seven hundred dollars, but Mattel sued for both copyright and trademark infringements. The courts threw out the complaints under a fair use and First Amendment rationale. The judges were so annoyed by the lawsuits that they awarded attorneys fees of nearly two million dollars to the artist.
The similarities with Food Chain Barbie are obvious. Both make use of an American icon with associated social ideals (perfect womanhood, in Barbies case). Both use art to comment on or criticize that social meaning. In neither case is the commentary the only purpose of the art work, but it doesnt need to be. Ultimately, both Food Chain Barbie and Escape from the Future are legitimate art projects, and it is a serious thing for judges to place prior restraints on cultural output. This is not a case about counterfeit Mickey Mouse watches or bootlegged Toy Story DVDs. Disney is free to stop that sort of thing all it likes. But a judge has to think about the First Amendment when asked to ban art work.
Escape from Tomorrow ultimately raises a larger question of what you might call cultural freedom, or the freedom to comment on or reimagine the great cultural icons of our time. Its the same question raised by fan fiction and remix artists like Jeff Koons. Disney would surely have preferred that Moore and his team have asked for permission before making the film. But it seems unlikely to have been granted: and a world where Disney gets to determine everything said about Disney World would be a poor place indeed.