Tim Wu: "Escape From Tomorrow" doesn't violate Disney's copyright

Last weekend marked the Sundance screening of Escape From Tomorrow, a guerrilla film shot without permission at Disneyland and Walt Disney World. It sounds like a fun film, but a lot of publications, including the New York Times have speculated that the movie would be impossible to release due to copyright problems. I said that I thought it was likely that there were no such problems, thanks to fair use. Now, Tim Wu, a law professor who's seen the film, has published his review and analysis in the New Yorker, and he agrees with me:

It’s 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 Disney’s trademarks or copyrighted works in the background of the film, like when Goofy wanders by or when we see the waving robots in “It’s a Small World.” Filming these works without justification would be an infringement of the copyright law. The question is whether they are “fair use”—or 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 public’s interest in the reporting and the First Amendment’s 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 film—to 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 place where, for example, guests are sometimes tasered and have their imaginations purged.

A fair-use finding also depends on the effect of the use on Disney’s 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. The scene where a Disney Princess attempts to crush a child seems to eliminate that possibility.

It’s a Mad, Mad, Mad, Mad Disney World (Thanks, Tim!)



  1. Not that actual fair use will have anything to do with the lawsuit Disney will bring. They can afford to throw more money than the producers at the problem, so it will have to go away. The sooner this film is on the web for easy download, the better chance it will have of surviving.

    1.  Not if the film is insured through the Stanford Fair Use Center, which will extend free legal services to its users in order to set precedents.

      1. So then the better thing is for Disney to ignore it, in order to avoid the risk of setting a legal precedent they don’t like? It’s like a weird game of chess.

        1. “a place where, for example, guests are sometimes tasered and have their imaginations purged”, if this is an accurate description of the film, it might give Disney motivation to sue even if they don’t want the precedent sent.  They might not want this perception of their park even more.

          1.  they “borrowed” snow white from an earlier film, and mickey has a lot in common with oswald the lucky rabbit, which walt didnt own the right to. disney recently re-acquired oswald.
            – arbitrary aardvark

    2.  Having worked in publishing for a while (although no longer), this was always my sense of how fair use worked in the real world:  Determining whether or not something is fair use is a right granted to those with the most money to spend on legal fees.

      1.  Yes, but it you comply with Stanford Fair Use center guidelines and they do your insurance, you effectively have an infinite litigation budget. Those grad students need to do something.

  2. The problematic issues are trademarks and contracts not copyright IMHO.  People COULD reasonably assume that this was approved by Disney, so any appearance of material trademarked by Disney might create an action.  And I wouldn’t be surprised if commercial photography is prohibited as part of the terms and conditions for entry on the tiny legalese that you agree to when you buy a ticket.

    1. Wu addresses the trademark question. The contractual question is separate, but it wouldn’t have any impact on the film or its distributors, only the production company.

      1. I suppose I should RTFA, but unless the copyright in the film, upon completion, was moved from the production company to another entity, if Disney were to sue the production company, they would more than likely be able to put a lien on the film. You know what, I’ll just go RTFA.

  3. “The scene where a Disney Princess attempts to crush a child……”?!?!!


  4. I’m with whoever’s suggesting disney will throw money at the problem to crush people in legal fees, or at the least make calls to ensure it sees no distribution (be it by having it’s MPAA buddies refuse to carry with threats of ‘well if you want this then you can’t have that’ or something else.)

    Then again I might have the wrong of it. I hope I do because this sounds like an interesting flick.

  5. Thanks for this . . . I used to work in film, and it was always fascinating to see many different interpretations of fair use play out.
    I have to admit, the legal particulars of trademark and brand representations in fiction have always mystified me a bit, but I’ve assumed that restrictions within productions (including blurring logos and such) were more the results of over-cautious lawyers than anything else.

  6. I doubt this film’d be picked up by distributers.  Disney would simply have a quiet word with their management about the unwisdom of doing so along with a few words to major theatre chains and that’d end it.

    1.  internet to the rescue!
      if the makers of this film are smart they will sell it online or take donations and give it for free.
      make it available online, do nothing to discourage piracy, use creative commons attribution license to let people distribute it as they wish so long as they attribute it and this movie could be huge and more or less bulletproof (sure there is bullying they can do to the artists but the film will be viral). leave it to the current industry and it will be crushed and die in obscurity.

  7. Not sure what Wu means by the “Magic Saucer Ride”….  Astro Orbiters, perhaps?

    My advice to the director is to get this in front of Lasseter. Branding would scream bloody murder at the idea of letting this see the light of day. Imagineering might be cool with it, but Parks marketing would not be. Creative still pulls a punch, and there’s an argument to be made that by giving it an okay, Disney looks cool rather than the IP nanny.  And creative matters to Disney; get it in front of the heavyweights.

    My opinions are my own and and I speak purely for myself, and so on.

  8. I saw the film at a SLC locals Sundance screening this last week. I hope they find a way to release it; I really do. It’s a really fun movie. I don’t want to say too much about why I think so because the film is best experienced as a surprise.

    But here’s something not often entering this conversation: if I was a lawyer, I might describe the film like so: “It’s extremely subversive and corrosive to the  Disney brand.” But that wouldn’t quite be giving you the full picture of just how far this film goes.

    I say this to raise the point that it’s not just copyright problems this film has. Disney has many reasons for not wanting this film to come out, even if its best chance of popularity is an under-underground cult favorite at best.

    Anyway. I wish the filmmakers the best of luck in figuring out how to make a little money of what is clearly a passion project, both for their sake’s and for the many people who might appreciate the film. But… I don’t think that’s going to happen. I think YouTube + donations is their best bet. And that’s only if this professor is correct about the copyright issues. Disney will disagree, and when that happens, even YouTube might be optimistic on the part of the filmmakers.

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