The National Law Review recently published an article written by Matthew J. Kreutzer with Armstrong Teasdale regarding Intellectual Property Protection:
“Escape From Tomorrow,” one of the most controversial films at the 2013 Sundance Film Festival, has put copyright and trademark law, as well as the question of what constitutes parody, in the spotlight. The film reminds companies why it is important to protect their intellectual property: to prevent use (or misuse) by others.
“Escape” tells the story of a family on vacation at Disney World during the outbreak of a mysterious new flu virus. As family members tour the park, they are plagued by increasingly bizarre events that make the rides at the “Happiest Place on Earth” appear to have sinister undertones. As the film progresses, the audience is forced to question whether there really is something unpleasant lurking beneath the famously joyful facade, or if instead, the parents themselves are slowly losing their grip on reality.
Although the film is interesting in its own right, it has become both controversial and noteworthy because it was made “guerilla-style” at the Disney World and Disneyland theme parks without the knowledge or consent of Disney. The cast and crew are seen in the film walking the parks, riding the famous rides, and interacting with the beloved Disney characters without having names, likenesses or locations blurred or obscured. Moreover, ordinary park visitors, who did not know they were being filmed or consent to being in the movie, appear as the background actors.
In the end, Disney may not choose, and ultimately may not be able, to stop the general release of “Escape,” but the specter of IP protection at least gives Disney a possible avenue to pursue. Section 107 of the Copyright Act lists the various purposes for which the reproduction of a particular work may be considered fair use, such as criticism, comment, news reporting, teaching, scholarship, and research. The section also sets out factors to be considered in determining whether a particular use is fair including whether the work is of commercial nature.
Although the U.S. Supreme Court considers parody to be fair use, the particular facts are critical to the final outcome since there is a fine line between parody and a derivative work. Thus, whether the depiction of the Disney parks in “Escape” constitutes fair use could be a matter of interpretation.
“Escape” serves as a warning to those in marketing and sales about the risks of using intellectual property owned by others, such as copyrighted images, when developing promotional materials and webpages. Use of protected images, for example, may not be fair when designed for commercial gain.
Finally, the controversy surrounding “Escape” is a reminder about the danger of showing people in commercial videos, including those used in social media, who have not given their consent to being filmed. Those individuals may have a right of publicity or even claims based on a violation of a right to privacy.
© Copyright 2013 Armstrong Teasdale LLP