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Escape from Tomorrow: What's Disney's Best Move?

Friday, January 25, 2013

There's been a lot of buzz on the internet about Escape from Tomorrow, a film which premiered at the Sundance Film Festival earlier this week. The film was shot primarily at Walt Disney World and Disneyland, without permission from Disney; cast and crew filmed surreptitiously, mostly with handheld cameras. It tells the story of a man slowly losing his mind during the course of a day at Walt Disney World, after receiving bad news by phone in the early part of the day. It's certainly not anything that a reasonable person would confuse for an actual Disney product. (Of course, like most people who aren't at Sundance, I haven't seen the film.)

From National Public Radio:

"Every distributor I've talked to has said, 'Look, we're interested in this film, it's a provocative film, it's gotten a lot of media attention — but can we release the thing?' " [Steven] Zeitchik [of the Los Angeles Times] says. "Even if there are some clauses that indemnify them [in a distribution deal], they're still going to be bracing for a big legal fight, an expensive legal fight. ... "

Of course, even if a film can't find a distributor to bring it to theaters, it could easily find a large audience online, most likely with minimal distribution costs. For example, How's Your News distributed its own documentatary Election 2012 online, for a $5 fee, and got a good bit of attention in certain media circles. With the buzz Escape from Tomorrow already has coming off of Sundance, I imagine it could find a paying audience. And of course, there are the torrent networks; it's hard to believe that this film won't find a way to a certain dedicated core of its potential audience, regardless of any action by Disney.

Also, there's reason to believe that Escape from Tomorrow would be protected by the "fair use" provision of US copyright law, which protects " use in a parody of some of the content of the work parodied" (among other things). In the Los Angeles Times, that same Steven Zeitchik refers to the landmark case Mattel vs. Walking Mountain Prods., in which Barbie dolls were used in art which Mattel found offensive and infringing upon their brand; the Court found that this was protected under fair use. So if Disney did pursue legal action, there's no guarantee that they would succeed in supressing the film.

I'm also reminded of Todd Haynes' 1987 film, Superstar, which told the life of Karen Carpenter in stop-motion animation using Barbie dolls. This film was pulled from distribution in 1990 after a lawsuit from the Carpenter estate. The Carpenter estate had a very strong case, as Karen Carpenter's copyrighted music was featured in the film (word is that Escape from Tomorrow is careful to avoid similar things, such as the song from "it's a small world."). For years, you pretty much had to know somebody to get to see Superstar; I remember a friend once telling me which art supplies store had copies available for rent if you quietly asked the cashier (they didn't even appear to rent videos). But today, it's no trouble at all to find the full video on YouTube and other streaming sites.

Disney's lawyers certainly have a lot to mull over, to determine how strong their case is for copyright infringement. Disney's security executives have probably been doing a bit of soul-searching lately too; in an era of high-quality handheld cameras, how can Cast Members be expected to know the difference between someone shooting a feature film, and someone taking plain old ordinary home movies?

In my opinion, Disney's best move is to simply ignore the film. It could turn into a big winner on the art house scene, and it'll find its way to a dedicated few no matter what Disney does, but ultimately the film isn't likely to weaken the Disney brand, and any legal action by Disney would only bring it more attention.