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For many, the phrase “The Happiest Place on Earth” conjures images of colorful rides through their favorite fairytales and fond memories of meeting their favorite princess, but Randy Moore’s new indie flick presents a decidedly different image of the vacation destinations families all over America love to visit.
If you’ve heard of Escape from Tomorrow, that’s probably because of the location of the filming. If you haven’t, that’s probably because the seemingly imminent Disney lawsuit actually hasn’t been filed. In January, the New York Times hypothesized that the negative portrayal of its parks and characters would spark a lawsuit, but Disney declined to comment to CNN then, and it more recently declined to comment when questioned by The Hollywood Reporter. Given the publicity a lawsuit would bring, the most effective method of limiting the film’s viewership just may be not suing to stop it.
The movie was filmed entirely inside Disney’s Florida and California properties by ticket holders entering the property in small groups and repeatedly riding It’s a Small World until they had the needed footage. The entirely monochromatic film casts the Disney parks as the location of a family man’s downfall and eventual death.
It seems like a film featuring many of Disney’s most famous landmarks would be ripe for a lawsuit, you say, but on what grounds?
With many copyrighted and trademarked works in the background of the film, Disney could probably sue on either of those grounds, but the analysis then quickly moves to “fair use.” Overall, the film criticizes the perfection a day at Disney purportedly brings as being unattainable. This commentary/parody aspect likely precludes a viable copyright suit since both commentary and parody are well-established categories of fair use. For a successful trademark claim, Disney would need to show some likelihood of consumer confusion. But five seconds of a Disney commercial tell you there’s no possibility of that.
Disney’s inaction may be a due to a business lesson learned from Mattel’s two million dollar mistake: the toymaker sued artist Thomas Forsythe for using its toys in his “Food Chain Barbie” series, but eventually lost — badly — on First Amendment grounds. The court held Forsythe’s use of Barbies a fair use, and deemed artistic expression protected under the First Amendment (not just statutory law). A comparable Disney lawsuit would be similarly unlikely to succeed.
Despite the numerous roadblocks to a successful lawsuit, Professor Dougherty at Loyola Law School suggests that Disney would have a strong claim for trademark dilution. The Trademark Dilution Revision Act of 2006 establishes a “likelihood of dilution” standard for evaluating requests for injunction. Without the requirement that Disney show actual or likely confusion (or even economic harm), the constant presence of Disney attractions in the background of the film — and the use of the Disney font and Mickey’s hand on the movie poster — very likely provides a basis for a dilution claim while depriving the filmmakers of their best defense.
With little advertising and the publicity strategy for the film apparently hinging on speculation of future Disney legal action, time will tell whether the film will be successful once the media accepts that Disney isn’t taking the bait.
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