Last week, the Banksy-organised theme park known as Dismaland opened in the English seaside town of Weston-super-mare, billed specifically as a place ‘unsuitable for children’. The park has already been reported and commented on thoroughly in the media, notably by The Guardian and in Boodle Hatfield’s blog, for its twist on traditional notions of amusement parks and family-friendly enjoyment. Here instead of carousels and Micky Mouse, we have miniature riots and industrial decay. What better way to spend the weekend? (Not so fast though, official tickets have sold out and the original £3 price has been inflated on the black market to £600.) There is also a reference in the online fine print that entry is restricted for all ‘representatives of the Walt Disney Corporation’.
But why? Is there anything (legally) wrong about what Banksy and the 58 other artist-creators are doing?
Not necessarily. From a trade mark perspective, there doesn’t seem to be anything strictly confusing about the park’s play on the original Disneyland name and logo. One would be hard pressed to find a consumer stumbling into this ‘dismal universe’ under the impression that it was somehow linked to the Disney Corporation. No likelihood of confusion and so (one would assume) no trade mark claim.
But what about copyright? Of course Disney’s original logo would be protected as an artistic work, as would presumably a number of other facets of the Disneyland empire (songs, costumes, characters, maybe some dramatic performances too). And, to the extent that these have been copied (remember copying involves taking the whole or ‘a substantial part’ of any one of these works), they would constitute infringement under UK law. Right?
Well, no. The reason being that since October 2014, UK copyright legislation now includes a ‘fair use’ exception for the purposes of parody (‘caricature, parody or pastiche’, to be exact). And isn’t this what Banksy and the others are doing? Parodying Disneyland, parodying theme parks, parodying modern society at large? This seems to be the kind of activity that the legislation is meant to protect (if indeed it does constitute copying, which of course it arguably does not). Parody is a permissible use of copyright protected material. The law allows us to all (finally) have a good laugh – and to rethink popular culture while we’re at it.
One can only wonder whether the organisers were aware of this new UK copyright defence. Perhaps it was one of their enablers? Had the park opened a year ago, parody would have been no excuse. Disney may have had a copyright claim and (just maybe) could have shut the whole thing down. But not in 2015. Now such mockery seems to be accepted, even embraced, by the law. And we may start seeing a good deal more of it.