Disney has long recognized the key role photographs play in attracting guests to the Walt Disney World Resort. For years, Kodak was a key sponsor and Disney guide maps designated “photo spots” which, according to my 1989 guide map, indicate “prime photo-taking locations.” Some “photo spots” include representations of Disney’s copyrighted and trademarked characters. So what rights do you actually have when you take a photograph in Walt Disney World?
To understand the rights and limitations on the use, I’ll have to get a little wonkish. It’s pretty safe to assume that Disney Enterprises (the entity that merchandises and licenses Disney’s characters) has tied up the copyright and trademark in the characters you see (or hear about) in the theme parks (it licenses some others but we’ll ignore the distinction). To this day, businesses (including day cares) that try to use photos or depictions of these characters without permission can expect to receive letters from Disney demanding the use immediately cease. Disney Enterprises routinely files lawsuits against infringers. One, against an Orlando ticket reseller, is pending with Disney seeking damages and an injunction prohibiting future infringing sales of theme park tickets because the reseller used (without permission) Disney copyrighted and trademarked characters.
Photos of the buildings in Walt Disney World are a somewhat different story. While the U.S. copyright laws have protected architectural drawings, it wasn’t until 1990 that Congress added protection for the building itself. Architectural designs embodied in buildings constructed prior to December 1, 1990, are not eligible for copyright protection. In other words, Cinderella’s Castle isn’t itself eligible for copyright protection (this wouldn’t necessarily prevent pictures or sculptures incorporated into the design from being eligible).
Even for buildings (architectural works) finished after 1990, the Copyright Act provides that the copyright holder cannot “prevent the making, distributing or public display of . . . photographs . . . if the building in which the work is embodied is located or ordinarily visible from a public place.” The phrase “public place” isn’t defined but in passing the 1990 Act, Congress explained the “public place” exemption exists to protect people on vacation who take photos of buildings while on vacation “as a memory of their trip.” In addition, Congress likely knew courts used the phrase “public place” in other copyright contexts (the Act provides that a public performance for which royalties can be assessed occurs at “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered”).
So while I didn’t find any clear definition of “public place,” the fact that Walt Disney World is on private property probably won’t alone preclude it from being a “public place.” And if you look at the wording closely, the building itself need not be in a “public place” just so long as it is “ordinarily visible from a public place.” So even if the Magic Kingdom were not a “public place”, the roads though the Walt Disney World Resort, most of which are accessible by the general public, present a much more compelling case for being public.
“Buildings,” according to the Copyright Office, are houses and office buildings as well as churches, museums, gazebos, and garden pavilions (the list isn’t exclusive). Other structures, including automobiles, bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats, are considered “useful articles” and are not eligible for copyright protection (again though, the drawings used to create these structures might be copyrighted). Disney can’t, it seems, copyright its monorail but if it puts a graphic on the monorail that graphic is copyright eligible. (Disney probably also claims protection for the phrase “Walt Disney World Monorail System” under the Trademark laws.)
Photos of copyrighted property may still avoid infringement if the photo qualifies as a “fair use.” Fair use involves evaluating four factors, one of which is the commercial nature of the otherwise infringing work. There’s little point in delving into the factors here; it is enough to repeat the Supreme Court’s assessment that “the fair use enquiry often requires close questions of judgment” and that, in the same decision, the Supreme Court held the commercial character of a work does not bar it from being a fair use. To give one example, a federal court of appeals found “The Wind Done Gone,” a parody of “Gone with the Wind,” to be a fair use even though the court found “The Wind Done Gone” was “undoubtedly a commercial product.” This isn’t to say that non-commercial products are automatically deemed fair use, as many schools and churches have found after making unauthorized photocopies of copyrighted choral music. Rather than focus on the commercial aspect alone, courts evaluate whether the fair use will harm the markets (including any potential derivative market) for the original work.
In the Walt Disney World context, fair use might permit you to show your photos of Disney’s copyrighted characters outside of your friends and family but the doctrine probably won’t go so far as to permit a guest to publish and sell a book containing photographs of all of Disney’s copyrighted characters. It is hard to speculate what is permissible or not – fair use depends upon the context.
None of this means that Disney is lurking behind every camera waiting to nail a writ to the lens (at least not yet). On the contrary, Disney knows well the value of “word of mouth” marketing, having pointed out in two earnings calls that it relies on guests who recount positive experiences to other guests. As noted, Disney doesn’t just permit guests to photograph copyrighted characters, Disney implicitly encourages it, knowing the value behind memories stimulated by photos of a happy time at Walt Disney World.
Disney is far from powerless to prevent commercial photography activities within the theme parks. While copyright laws are probably not the most efficient route, as the property owner, Disney can (within limits) establish conditions for guests entering its property. To my knowledge, it hasn’t done so, not in a public writing at least. I checked the Walt Disney World website and past tickets I’ve purchased. None imposed any limit on photographs being taken within the theme parks. Disney could impose these terms, including on the spot, it just hasn’t, rendering the fair use debate rather esoteric.
None, for that matter said Disney could take and use photographs of me (but, in contrast, the Adventures by Disney forms did). Florida’s right of publicity statute prevents the use of a person’s name or likeness to directly promote a product or service because of the way that the use associates the person’s name or personality with something else. So, to use one case as an example, if you sign a release to appear in a video, the producer doesn’t violate your right of publicity by using your image to promote that video. (I suspect California law to be quite different but I haven’t looked.)
There is some irony to this debate for many Disney “landmarks” are copies of preexisting architectural works. (I’m not sure I could list all of the incidences.) Consider this photo (which is itself in the public domain):
Many Walt Disney World fans might assume this is a shockingly unkempt early photo of the entrance to Disney’s MGM (now Hollywood) Studios.
In fact, the black and white photo depicts the (now demolished) Pan Pacific Auditorium in Los Angeles, which Disney copied (so far as I know, without permission) for the entrances to two of its theme parks. This isn’t the only architectural copy. Cinderella’s Castle reportedly relies heavily upon the Neuschwanstein Castle in Bavaria, and according to one other source (minor spoiler alert), the Castle’s spires were inspired by the ones atop the Blue Mosque in Istanbul.
In sum, while Disney may have a legal basis to prohibit photographs of some objects or characters within a theme park from being published, the real question is why would Disney want to? No doubt, there will be times when it might, but photographs by guests being guests are rarely if ever going to attract attention and they provide Disney with free publicity for their theme parks.
I should caution that I’ve necessarily been very general in this post. No one should take anything said here (or on the podcast) as legal advice (the subject is far too complex) but as a very short explanation of some of the principles and issues that arise in taking photographs or videos within the theme parks. In other words, if you are going to try to sell your photo album of Walt Disney World photos (including photos of buildings, boats and monorails), first hire a good copyright lawyer to advise you.