Fairy Tales, Free Use, and the Anti-Streisand Effect

A couple of weeks ago, I had the chance to walk down the street to the IFC Center to see director Randy Moore’s film Escape from Tomorrow. It’s not generally my type of movie. I’m not really a fan of horror movies. The promotional materials describe the film as an idyllic family Disney vacation quickly unraveling into a surrealist nightmare of paranoid visions, bizarre encounters, and an obsessive pursuit of a pair of sexy teenage Parisians.

My own thoughts aside, many reviews of the film say that the process is more interesting than the movie itself. Approximately 80 percent of the footage in the film was actually shot in the Disney parks themselves without authorization from Disney. The movie would have been technologically impossible twenty years ago. It was filmed with digital SLR cameras and pocket dictation recorders (allowing the filmmakers to blend in with the non-guerilla-filmmaking visitors). Between shots, the actors consulted scripts loaded onto their smartphones. At one point, a Disney employee even offered to help. Star Roy Abramsohn recalls, “A security guard said, ‘Are you a celebrity? There are people following you around, taking pictures.’ He told me they have a certain protocol for celebrities, for taking them around the park.”

Despite predictions that the film would never be widely released, it appeared in theaters and is available on video-on-demand platforms. Professor Tim Wu at Columbia explains in The New Yorker that Disney wouldn’t be able to stop the film because it falls squarely into fair use. (The article is available here, but really should have spoiler alert on it.) Even though Professor Jay Dougherty at Loyola Law School questions Disney’s opportunities through trademark infringement or trademark dilution, it seems clear that Disney is going to let this film slide in order to avoid the “Streisand Effect.” That is, action by Disney would bring attention to the film, effectively giving it free press attention, which would reflect on Disney, making it look like a multibillion-dollar bully.

(Additionally, for those who want a sense of what its like to have Escape from Tomorrow as a client, Indiewire’s got you covered with a story of the distributor securing E&O Insurance).

But, it’s now clear that Disney faces an “Anti-Streisand Effect” that brings the same result they wanted to avoid. What happens when lack of action becomes the story? Disney’s non-action hasn’t gone unnoticed. Seth Abramovitch at The Hollywood Reporter believes that The Disney Corporation’s resounding “meh” could deflate the buzz surrounding the movie. Others believe that this is a good move, as Disney is refusing to fall for Moore’s trap to gain free publicity. But Mr. Moore is still positioning himself as the cat who escaped the mouse. The film’s website currently has a counter on it that counts the weeks, days, hours, and minutes since release that the filmmakers haven’t been sued.

The film’s website also has information about a contest for fans to upload videos on Vine or Instagram and Mr. Moore will pick the best “Disney experience.” The grand prize? A $500 Disney gift card.

Is Disney between a rock and a hard place? Will Escape from Tomorrow fall into obscurity, or is this a new wave in guerilla filmmaking? Is there another option? I’ll be taking part in the discussion below, and would love to hear any thoughts.

Here’s a picture.

Michael Mietlicki is a J.D. candidate, ’15, at the NYU School of Law.

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