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.