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Fandom Law Discussed Here
in our COFFEE SHOP AU where everyone's interested in copyright & trademark law, fandom law, privacy and social media issues. Basically Snopes for IP and fan-creativity issues. Created and maintained by fandom lawyer/Board Certified Specialist in Intellectual Property Law Heidi Tandy aka travelingheidi/heidi8 with Hannah aka hllangel and other guestbloggers. Nothing we post here is legal advice. Ask us anything (but we won't give legal advice)

September 30, 2014

Two of these photos were taken last winter at Disney World; I shared them on Facebook and Twitter and am now sharing them here on tumblr (the third is used pursuant to fair use (commentary)). Even if I took similar photos today, I would share them on Facebook, Twitter and tumblr, and via Instagram and flickr and Snapchat. I’d even do a live vlog from the line to meet Elsa and Anna, or during dinner at Be Our Guest. I would use them in reviews on Yelp or TripAdvisor.

However, I might not be able to put ads on my YouTube vid or sell the pics to Getty Images, or use them in a travel info app.

That’s because Disney has changed its policies regarding “prohibited activities”; "photography, videotaping or recording of any kind except for personal use" is now prohibited by the Walt Disney World Resort and Disneyland Park Rules - although we’re not sure the rules are the same for Disneyland Paris or the Asian Disney parks.

Some Disney travel/info sites are concerned about what this means for them, and for regular visitors - can a Disney Guest still #showyourDisneyside, or would that fall under a use that is not “personal”?

It’s complicated - though hopefully not as horrible as Ursula’s contract with Ariel.

Disney’s own websites are definitely commercial, as a matter of law, so a very strict reading puts the Park Rules and Disney’s Terms of Use out of alignment - but you can’t read the Rules strictly as they also prohibit feeding animals in the Parks even though there are food-purchase stations in Animal Kingdom’s Affection Station.

With that in mind, we’re going to try for a less-than-strict reading of the new Rules, but it’s a challenge. Neither the Park Rules nor Disney.com’s Terms of Use define “personal use”, although the US courts have addressed the question of personal vs commercial in copyright cases over the years. One concern is whether posting/sharing images via a commercial service like tumblr or Facebook is an Activity that’s Prohibited by Disney.

Cases and legislation discuss what is commercial use, and what is personal use, but those definitions keep changing. The standard at the moment seems to be that use is personal if the individual who owns the content is not personally deriving income from its distribution - but if your noncommercial site links to your ad-supported YouTube channel, or if you use the same Twitter account to promote your own business and share family photos, does that make everything commercial? It shouldn’t, but weird arguments can be made that it would.

Disney could banish confusion and concern by adding under 140 characters to their Park Rules page. After “The following activities are not allowed” they could add “without permission”. After the line about pics/vids/recordings and personal use, they could add “; if hosted/shared online for personal use, the site/host can be ad-supported, donor/investor-supported or noncommercial.” That really covers all the current types of sites where people share content, and makes it clear that people can share their pics publicly anywhere online. It would still allow Disney to restrict people from including their photos in calendars for sale on CafePress or making indie films in the parks with paid actors. If Disney wanted to be very particular, it could say that Guests could upload and share photos, videos and other recordings on any of the Disney Services, which is defined in the Terms of Use. The ToU says that if terms are created for a specific service (like the Parks) those terms, and not the ToU itself, control if there is a conflict; there seems to be a conflict between the Park Rules and the Terms of Use in that the latter allows Disney to grant permissions for certain activities, and the former does not. That makes it even more important that Disney be more specific in its Park rules, as it’s hard to imagine that they want to restrict themselves from granting permission. Disney could write a license into their ToU and incorporate it by reference into the Park Rules, if they wanted to control what they allow others to use but not set up an entire department to review permission requests.

If the permission-granting is added in, but done by a staff and not a license that applies to everyone who meets the criteria, there’s an issue with bloggers, podcasters, travel agents, news sites and others who want to use their own images and video on their commercial sites or in connection with businesses. That wouldn’t qualify as “personal use” because the person using the photos/videos is (or hopes they will be) getting some sort of renumeration from the photos/videos. Disney could choose who gets permission, and who doesn’t - metaphorically putting some voices into a seashell.

If you use images or video shot in a Disney parkfor commercial purposes, could you be penalized? The Rules do say that Disney can kick people out and take away their park pass, but if they tried to sue for infringement of their copyright in the architecture the guest may be able to use the Fair Use defense, and where there’s Fair Use, infringement has not occurred. So it’s unclear what - other than the risk of being banned from Disney parks - the penalties could be.

The thing is, most event, website and park rules don’t define “personal use” in their Terms or Rules. Everyone knows what explicitly commercial uses are - a site that sells prints of photos taken at Disney is making commercial use of the pics. But what about a vlogger who has ads on her YouTube channel and films while at Disney World for Dapper Days? What about a site that focuses on Disney news? Is that commercial or personal? When even the Kickstarter Terms of Use says it’s for “personal, non-commercial” use, do the words “personal” and “commercial” mean anything anymore?

Nobody wants to be a poor unfortunate soul, unable to Snapchat from Space Mountain or restricted from sharing photos with characters on Facebook. If you’re an ordinary Guest in their parks, you should be able to share anything you photograph, film or record on all your social media accounts, as long as you’re not making any money (or trying to make money) from that account. Under current law, that should be seen as a personal use, and therefore it’s fine by Disney.

But if you have a commercial site, program, app or product that’s all about - or even just a little bit about - Disney’s parks, you should wish upon a star for Disney to clarify its Rules, so they can give you permission to use your work and provide some guidelines as to what they see as ‘commercial’. Perhaps looking to caselaw involving cars in the 1920s would help, because in our lives, commercial use and noncommercial use have long been blurring.

Oh, and when they update the Rules, they might want to add a ban on Guest usage of drones in the Parks, because if it hasn’t happened yet, it will eventually.

2:12pm | URL: https://tmblr.co/ZlK2rs1S28rOD

(Notes: 37)