Theme Park Insider

Can Walt Disney World really make a Guardians of the Galaxy theme park ride?

August 20, 2016, 11:10 AM · Is a Guardians of the Galaxy roller coaster about to replace Ellen's Energy Adventure at Walt Disney World's Epcot? Will the Guardians of the Galaxy characters appear in the upcoming Avengers: Infinity War movie?

These might seem like somewhat unrelated questions. Sure, they both involve Marvel's Guardians of the Galaxy franchise. But one is about a theme park ride and the other a movie. Yet the two questions are intimately related, and could have profound legal consequences for the Walt Disney Company and its parks.

Let's catch up. Actor Vin Diesel, who voices Groot in the Guardians of the Galaxy, spilled on Facebook this week that the Guardians characters would be appearing in the upcoming Avengers film, which opens in 2018. Disney-owned Marvel takes an aggressive approach toward connecting its characters in the Marvel Cinematic Universe, so the slip didn't blow anyone away with shock.

So what does this have to do with theme parks? As any long-time Theme Park Insider reader knows, Universal Studios back in the 1990s secured the theme park rights to Marvel characters for Universal Orlando. For a while, it even had the global rights to use Marvel in its theme parks. Those rights have elapsed, but they remain in the Japan market for the next several years, and in perpetuity in Orlando. That deal, which you can read on the U.S. Securities and Exchange Commission website, effectively prohibits Disney from using most Marvel characters, or even the word "Marvel," inside the theme parks of the Walt Disney World Resort.

Notice that I wrote "most." The contract, which Marvel signed long before Disney acquired it, prohibits other theme parks from using the characters that Universal does, along with any other members of those characters families and their associated villains. If you speak legalese, here is the relevant subsection of the contract, IV.B.1.a.1.i. (Note that MCA was Universal's parent company at the time, which is why it's mentioned as a party in the deal.)

East of The Mississippi - any other theme park is limited to using characters not currently being used by MCA at the time such other license is granted. [For purpose of this subsection and subsection iv, a character is “being used by MCA” if (x) it or another character of the same “family” (e.g., any member of THE FANTASTIC FOUR, THE AVENGERS or villains associated with a hero being used) is more than an incidental element of an attraction, is presented as a costumed character, or is more than an incidental element of the theming of a retail store or food facility; and, (y) in addition, if such character or another character from the same “family” is an element in any MCA marketing during the previous year. Any character who is only used as a costume character will not be considered to be “being used by MCA” unless it appears as more than an incidental element in MCA’s marketing.]

The question of what constitutes membership in a character "family" is key here. The contract explicitly references the Avengers, which are represented at Islands of Adventure in the Incredible Hulk Coaster. That provision prohibits Walt Disney World, or any other theme park east of the Mississippi, from using any of the characters in the Avengers family, or the villains fighting them, in their theme parks.

But does an appearance in an Avengers film constitute making the Guardians of the Galaxy members of the Avengers "family"? That is literally a multi-million dollar question for the Walt Disney Company. One could make a common-sense argument that a visiting a family isn't the same as being adopted by it. But this is contract law, where what's written on the page rules over whatever logical argument one might try to make. If Disney were to go ahead and develop a Guardians-themed attraction at Disney World, then put those characters in an Avengers film, Universal owner Comcast could sue Marvel for breach of contract, arguing that by appearing the Avengers film, the Guardians have effectively become members of that family.

If a judge or jury buys that argument, Disney World would have to close that attraction, remove all Guardians branding from the Disney World parks and all of its promotional material (every guidemap, billboard, and ad... anywhere) and potentially have to pay Comcast many millions of dollars in damages.

I cannot imagine any lawyer allowing Disney to take that risk.

So either Disney needs to

  1. cut a deal with Comcast in which Comcast would acknowledge that the Guardians are not members of the Avengers family and agrees not to take action against Disney for developing a Guardians attraction in Florida, or
  2. keep the Guardians completely segregated from Universal Orlando's Marvel characters on the screen and in the books, or
  3. forget about using the Guardians at Disney World after Infinity War comes out.

I also can't imagine that Comcast would agree to the option 1 deal with Disney as nothing more than a corporate favor. Comcast and NBCUniversal would need to get something from Disney in return (a la the Oswald the Lucky Rabbit/Al Michaels deal). That's why we take any Guardians-related rumor for Disney World with a Gibraltar-sized grain of salt.

Whatever the outcome, though, we know this — some lawyers are keeping busy.

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Replies (36)

August 20, 2016 at 1:00 PM · A rollercoaster? Give me a break .... sick of them, and we have far too many. They're the lowest form of theme park entertainment. Dinsey and Universal are so much more, because they offer more than rollercoasters.
August 20, 2016 at 1:02 PM · I believe the loophole is Marvel itself not described as the other theme park for it can use the non-Universal exclusive Marvel characters. That's why Disney is doing everything it can to remove the Marvel name and also Guardians of the Galaxy and just using the characters in the same way Splash Mountain uses the Song of the South characters without mentioning the movie or original story. The rumor for the Epcot replacement for Universe of Energy presumes a ride with GotG characters.
August 20, 2016 at 3:10 PM · The characters of GotG weren't part of the Avengers family when the deal was sign, and they can't be retroactively added later. Take this for example (Sidenote this is very stupid and would never happen, but to prove a point): if Disney combined the Marvel and Star Wars universes, Universal wouldn't suddenly get the rights to the Star Wars characters. The contract was signed in 1995, any changes that occur to the Marvel Universe after that has no impact, hence why Universal can't use MCU.
August 20, 2016 at 3:14 PM · I believe that Guardians of the Galaxy already made an appearance in a Disney park, as a promotion or something. If they did this without Universal commenting, that may make some sort of precedent for them using the characters again.
August 20, 2016 at 4:15 PM · @80.229.228.32 Couldn't disagree more. Roller coasters, when expertly executed, are almost always the headliner attractions at any park - even Disney and Universal recently spent millions adding the 7 Dwarves Mine train coaster, the Gringotts family coaster, and rebuilding the thrilling Hulk coaster from the ground up. Obviously, coasters are very important even to the big dogs. Now, whether or not Epcot should have a coaster is a different matter - however, I'll take just about anything over that tired, dilapidated, outdated Ellen ride. Ugh.
August 20, 2016 at 4:10 PM · Guardians of the Galaxy have already appeared in Avengers comics, and Disney already used them inside the Park in Florida for the preview of the first movie (only without the Marvel name). So I don't think appearing in an Avengers movie will be a problem.
August 20, 2016 at 5:20 PM · If Energy Adventure stays, it should be hosted by Mike and Sully. Monsters Inc's plot revolved around electricity, so having them be the hosts would make perfect sense. With Disney expanding Animal Kingdom and DHS, Epcot is becomming Disney World's most boring park when it comes to rides. If Disney is able to add a GotG ride and decides to do it at Epcot, it should be a brand new ride. Epcot shouldn't be losing any more rides until it gets some new ones. There's just not enough.
August 20, 2016 at 5:25 PM · If anything I welcome a new roller coaster or dark ride. I'm over the use of a 3D screen on every new attraction parks open. Couldn't agree with James more.
August 20, 2016 at 6:17 PM · When I made toys under licence from Marvel many years ago the "families" were pretty well defined: Spider-Man, Fantastic Four, X-Men, Daredevil, Hulk, Avengers (these were separate and the latter was basically Iron Man, Cap, Thor and Ms Marvel). Some characters were in multiple families (hence the 2 cinematic Quicksilvers) but other characters like Guardians of the Galaxy just weren't considered at all. They simply didn't enter into the discussion.

So if Universal has the same definitions of 'families' as we did there's not much they can do about Guardians appearing in theme parks, regardless of whether the characters appear in the Avengers movie. I mean, Spider-Man will be in that movie too but in terms of licensing will still be in his own family.

August 20, 2016 at 6:53 PM · Disney will probably go with option 2 if they really want to get GoG into WDW. Sorry Groot, I mean Vin Diesel.
August 20, 2016 at 7:36 PM · The Guardians of the Galaxy have already appeared in recent Avengers animated series Earth's Mightiest Heroes, Assemble, and Disk Wars. Surely by this point they've appeared in Avengers comics in some form right? I get that the movie is more high-profile but Marvel crossover stuff happens all the time. I just don't see how Disney would even bother getting into planning an attraction that would be hampered by legal issues.
August 20, 2016 at 9:25 PM · I'm not a lawyer, but I would suspect that, since Universal has ignored GotG in their parks all these years, Disney can use them at their discretion. Rumor has it that Fox was going to lose movie rights to Fantastic 4 if they didn't use the IP, so they through together that recent crappy reboot. Seems to me that, in the absence of GotG's use, Disney should get the rights to use those characters.
August 20, 2016 at 10:52 PM · The anonymous first responder should check out Verbolten and try to argue to me how that's the lowest form of theme park entertainment
August 20, 2016 at 11:53 PM · I'm fine with Guardians replacing Ellen. But if it's going to be a roller coaster, wouldn't it make more sense to replace Rock n Roller Coaster?
August 20, 2016 at 11:56 PM · Just one problem, the contract was not prospective and what they do today does not give it retroactive rights to anything Disney/Marvel can or may forevermore.

If Disney were to add Luke and Rey to the next version of Infinity Wars using some Iger Synergy/Comic Book logic, would Disney no longer be allowed to use Star Wars characters in their parks? Would Rey and BB8 be free to appear in their Spiderman ride?

The obvious answer is no, that's ridiculous. Which is exactly why no, the GoTG appearing in a MCU movie today has no bearing on what the contract gave Universal the rights to 20 years ago.

And is finally why no, Universal does not have the rights to the MCU specifically appearing in their parks. They have the rights to Iron Man, but not Paramount/Disney's Robert Downey Jr. portrayal.

August 21, 2016 at 4:46 AM · That´s how lawyers make millions - anybody with half a brain could see that terms like "family" will, sooner ot later, lead to more work and more millions for the lawyers who wrote the contract, or other members of the family of lawyers. But in this case, I am even grateful - as the vague provision may keep those insipid "characters" out of Epcot, at least for a while...
August 21, 2016 at 7:49 AM · I think Universal would make a stink if Marvel crept into the parks. If you remember, they would not allow the monorail with the Avengers skin to take guests to Epcot since the Monorail goes into Epcot and considered a "ride".

The meet and greet was a very exclusive one time exception while the movie was out.

I think Disney can use Marvel as soon as Marvel Superhero Island is changed into something else (probably never)

August 21, 2016 at 8:26 AM · The word "family" is the strange thing here. Best these characters are assembled and in the comics they cross over into each other all the time. If that definition of family holds up then Disney is not able to make a ride in WDW unless they buy the rights from Universal.
The Iron Man Experience that would be build for Hong Kong using the tired old Star Tours ride tech is not surfacing. Is it due to Robert Downey Jr. saying he is done with the role and Disney decides not to use Iron man anymore?
August 21, 2016 at 9:58 AM · There is always the other option. Give Universal a big box of money. Doubt Universal will ever do anything with the Avengers characters other than hold them hostage.
August 21, 2016 at 11:02 AM · Well Disney did give permission for the updates to hulk I believe so cooperation isn't off the cards
August 21, 2016 at 11:14 AM · The argument that a big screen team up in Infinity War would retroactively add the Guardians to the Universal theme park licensing agreement is like arguing that Marvel can gain live action rights to X-Men and FF characters by handing out Avengers ID cards to team members in the comic books. If Universal wanted Guardians or Big Hero Six (another Marvel property in Disney Parks), the company should have paid for them.
August 21, 2016 at 11:38 AM · Anthony, Marvel has crept into Disney. Remember that Big Hero 6 is a Marvel IP, and there has been a Hiro and Baymax character meet and greet in the WDW parks. Again, Big Hero 6 was not used by Universal just as GotG has been ignored, and that is where I think Disney has found the loophole.
August 21, 2016 at 3:17 PM · Universal has done way more with Marvel then Disney will probably ever do. Like it or hate it Spider-Man is one of the best rides ever made and won multiple Thea awards. Hulk is probably the most beloved coaster in Florida.

Disney will just take the mojo and power of these characters and reduce them to character meet and greets or shirts of them riding Dumbo eating Mickey ice cream.

I wish the someone would bring a lawsuit against Disney for ruining Darth Vader by reducing him to a Dumbo riding ice cream eating weenie that gets defeated by kids every half hour. Did Darth loose Space Jam?

August 21, 2016 at 3:37 PM · O T - the comics can do what they like, but Marvel's licensing is a different issue altogether - that's where the 'families' come in. Just like there's a Winnie The Pooh 'family' or a Mickey Mouse 'famiily' the licenses for Spider-Man and X-Men are kept separate. As for Robert Downey, Jr - he's playing Iron Man in next year's Spider-Man film and the following year's Avengers 3 so he's not done yet.
August 21, 2016 at 3:48 PM · I cry at the thought of those beautiful animatronics being left to to backstage or only bought out for special events.
August 22, 2016 at 6:40 AM · As universal continues to expand and eventually become a 3 or 4 gate development, the entire contract comes into question. The legality of Universal owning indefinitely the right to Marvel while at the same time lowering their percentage use and importance brings into question the rights of Marvel to escape the contract. All contract must follow the reasonable person test. The original contract clearly states that the contract was for inclusion in one of a two gate park. If Universal becomes a three or 4 park development then the entire contract could be taken to an arbitrator for determination of what rights Marvel has if it is only in 1 gate of a 3 or 4 gate development.

Universal has clearly shown that they no longer need Marvel and in fact have decided their future lies with Harry Potter and the HP additions, look at the new contract they just signed with WB. Therefore, it would not be shocking if Marvel took this to arbitration to regain their rights or demand for additional money inclusion in the enlarged Universal parks in Orlando. Universal can not have it both ways. Marvel has to be an extremely important part of the development or give up the rights. No single company can ever hold another company hostage over the development of their IP and if Universal continues down the path of minimizing Marvel's importance at Universal Florida then Disney has a legal responsibility to it's stockholders to fight Comcast over this.

August 22, 2016 at 7:18 AM · I read this differently than you. The "family" section is referring to elements that were marketed within the last year, excluding walk-around characters.

Here is the statement.
"in addition, if such character or another character from the same “family” is an element in any MCA marketing during the previous year.

GotG currently has no home at Universal and if it did it would not be allowed to use the Disney version of the characters. Just like the can't make the Hulk look like Mark Ruffalo.

My question what if Universal build an Avenger attraction that includes the Guardian. What would happen then?

Brian

August 22, 2016 at 7:24 AM · Personally I trust marvel more with Universal. Marvel mostly appeals to a teen audience, and Universals rides are more thrilling. It'd be nice to see them add to their marvel land with that theatre by toon lagoon just taking up space, but I wouldn't be surprised if they don't want to do anything to further a Disney brand, but they also don't want to give it up either. Weird spot for everyone to be in.
August 22, 2016 at 8:06 AM · Agree with Ian 100%. Appearing in an Avengers movie does not make them a part of that family. The characters have crossed over dozens of times in the source material (the comics) and that has no effect on the theme park rights or the “families”.
August 22, 2016 at 9:27 AM · Firstly, I agree with most other comments here. It seems to be fairly well-established by now that GotG qualify as a separate "family." Secondly (and, perhaps, going slightly off-topic), this situation reminds us yet again of the odd limbo the Marvel characters are in down in Orlando. Disney can't use most of them, but if I recall correctly, Universal can't build new Marvel attractions without Marvel's consent, which explains why they didn't do so to capitalize on the success of the "Avengers" films. That's a shame since I know I'm not the only one who would love to see more Marvel/Avengers attractions in Florida. I bring all of this up because Universal's Hulk Coaster rebuild and 2012 Spider-Man revamp seem to indicate that they have no intention of letting those characters go anytime soon. So, the limbo continues. With those rides remaining as impressive, famous, and marketable as they are, it's tough to imagine how much money Disney would have to pay to get that license back. At the same time, it's also hard to see a scenario where Comcast would care enough to even attempt to build new Marvel rides. It would be nice, sure, but it's not like Universal doesn't have other popular franchises to work with in Orlando. Still, it sure would be cool to see an Iron Man or SHIELD attraction pop up in the area before the Marvel Cinematic Universe ends its run (if it ever does).
August 22, 2016 at 9:27 AM · I guess this is why they won't be messing with the theming of Orlando's Tower of Terror.
August 22, 2016 at 2:37 PM · Gimme a break.
Isn't there any original thinking in this country anymore?
Why do all the rides these days have to be 'branded' by a stinking movie or comic strip?
Aren't all of the best rides at Disney original and maybe even have movies made of them?

By the time most 'movie' based rides come out, the movie is 3-5 years old already and irrelevant.

Imagineers my ass, more like copy cats these days!

Did innovation die at Disney with Walt?????

August 22, 2016 at 7:39 PM · How about replace Ellen with GotG at EPCOT. So it's a fair trade, replace GotG with Ellen in the Infinity Wars movies.
August 22, 2016 at 8:54 PM · Here's an idea. No more anything regarding comic book super hero crap? The movie theaters are chocked with them, none of them are original or entertaining anymore. Go to Comic cons if you want to meet your favorite one off character from a movie or magazine 9/10 of the rest of the earth cares about.

Designing a ride, let alone a world, over one Guardians of the Galaxy movie that came out four years ago? Oh wait, Avatar world will change the amusement park landscape! You know, that movie from a decade ago that nobody cares about anymore?

ENOUGH is ENOUGH. What happened to imagination and originality?

August 23, 2016 at 4:57 AM · And Gabriel wins the thread.
August 23, 2016 at 6:25 PM · I don't know what Disney should do with EPCOT but one of the things that I think would be really cool is if Disney would look at EPCOT as the world's best science museum attraction. Big cities have science museums that have different exhibits that are cool and educational, but those museums all have small budgets and no rides. What if EPCOT was like a science museum (the learning part) but also had all those cool rides? Guardians of the Galaxy could be the "astronomy" exhibit. Have the queue be informative, about our solar system and other planets. Have little interactive displays. Then have the ride. Have an area at the end of the ride (before exiting the gift shop) where families could learn more about space travel, velocity, wormholes, light speed, or other concepts that they experienced on the ride. Do the same thing with other stuff in EPCOT...like an Inside/Out ride, where guests also learn about neurons and memory and the brain and other things. So the families learn things while also being really entertained and thrilled. That's how EPCOT should be approached today: as the world's best science museum instead of approaching it like a permanent world's fair showcases corporate products.

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