It looks like thisCinderella Castle at the Magic Kingdom, Walt D... year’s most talked about film at Sundance may not be able to find a distributor. Filmmaker Randy Moore spent less than one million dollars filming “Escape from Tomorrow” on location at Disneyland in Anaheim, California and Disney World in Orlando, Florida. The problem is that he shot it guerrilla style, completely underground, without permission from the notoriously litigious Disney Corporation. Disney is not likely to be swayed by the film’s dark content which chronicles a man’s nervous breakdown at the “Happiest Place on Earth.”

How did Moore do it? The filming was done on small cameras and with only small groups taken into the parks. Some of the shots were also filmed at a distance to allay suspicions. Nonetheless, Moore was a little bit surprised that Disney never caught on, especially instances like the one in which cast and crew went on the “It’s A Small World Ride” twelve times. Even if Disney did surmise that something was going on, they have been patient with people making short films in its parks and posting them on YouTube. Moore’s crew spent about 10 days on location at Disney World and two weeks at Disneyland.

Moore was also careful to stay away from using readily identifiable and discrete bits of intellectual property. Like the “It’s a Small World” tune. Still, “Escape from Tomorrow” does stretch the limits of the concept of “fair use.” The “fair use” exception is intended to give content producers the ability to use small snippets of proprietary or copyrighted material as long as the context of the original use is materially changed. That’s how film clips can be shown in movie reviews or on the evening news. Even in these contexts, however, content producers need to be wary. I once produced a documentary on North Korea in which I initially used three short clips from James Bond movies. I was illustrating a point about evil villains. Ultimately, the legal department determined that I could use two. The third was deemed gratuitous. The lawyers felt that I had veered from making my point to using the clips for entertainment value.

Fair use, ultimately, is a judgment call. As an attorney, I thought I was justified in using all three clips. However, the film distributor disagreed. It doesn’t seem like quite so close a call here. Moore is actually using Disney’s intellectual property to make a film. Even if the film is dark (and Disney strives not to be), it is filmed entertainment. The film’s theme (i.e. a man suffering a nervous breakdown at Disney) is not likely to evoke much sympathy.

Disney is notoriously protective of its intellectual property. That after all is their most valuable asset. The company hasn’t said anything yet, but that uncertainty is likely to discourage the distributors who make the annual pilgrimage to Sundance. And, a waiver of liability offered by the filmmakers is unlikely to quell the discomfort. It may not be worth much more than the paper it’s printed on.

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