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Fair dealing or infringement of "the worst film ever made"? The Room, Room Full of Spoons and The Disaster Artist in the court

"How does it feel to pour your heart and soul into a film, only for it to be ridiculed as history's most atrocious crime against cinema?" Imagine it: Tommy Wiseau, maker of The Room and actor in it, said, more or less, that he understood, the film is famous for being so bad.1

That didn't prevent Wiseau from taking legal action to stop other filmmakers from using his work in ways that (in his submissions) cast misleading character aspersions, invaded his privacy and damaged his reputation.

Introduction: Court's decision

On Nov. 1st, 2017, the ON Superior Court of Justice released a decision,dissolving an injunction against the makers of Room Full of Spoons, a documentary containing 7 minutes from, The Room. There is another, higher profile movie, The Disaster Artist, about The Room, that's brought Wiseau into the spotlight in a bigger way recently. Featuring James Franco, Sharon Stone and Bryan Cranston, The Disaster Artist is a behind-the-scenes comedy which premiered at TIFF and is scheduled for a wide release on Dec. 8th, 2017.3

Wiseau got an interim injunction on June 14th, 2017 restraining the release of Room Full of Spoons. Markus Koehnen J heard the matter on Oct. 10th, 2017. He decided that the plaintiffs did not meet the three-part test and therefore should not get an interlocutory injunction, preventing the release of the documentary.

The use of 7 minutes of the film is fair dealing, not copyright infringement, according to the court. Moreover, Wiseau and his company had failed to make proper disclosure and failed to prove that:

1) there was a serious issue to be tried,

2) they would suffer irreparable harm if the injunction was not granted, and

3) they would suffer greater harm than the defendants if the decision did not go their way.4

Therefore, this court proceeding will not stand in the way of the documentary being released.

One question: how did the court come to this decision?

The film and the issues that the plaintiff tried to raise for trial

The Room was originally released (by Wiseau Studio, LLC and Tommy Wiseau in 2003) to poor reception, then gained a cult following thereafter. The plaintiff, Wiseau, the actor/writer/director/producer who made The Room, sought an interim injunction pending argument of a full interlocutory injunction.

The plaintiffs submitted that the defendants had breached copyright, misappropriated personality, breached moral rights, breached contract and committed other wrongful conduct including passing off, intrusion upon seclusion and fraudulent misrepresentation. Wiseau noted that his reputation as a serious filmmaker is important to his livelihood and was negatively impacted by Room Full of Spoons.

Was the use of The Room fair dealing? Not according to the court. The injunction was dissolved. Filmmaker plaintiffs failed to meet the test:

1) was there a serious issue for trial,

2) and irreparable harm that the plaintiffs would suffer if the injunction was not granted, and

3) a greater inconvenience to them than the defendants would suffer if the injunction was granted?

Fair dealing: what it is and is not

The decision provides a clear breakdown of what fair dealing is and is not. To gain the protection of fair dealing provisions, the defendants faced with allegations of copyright infringement must establish that the dealing was for a sanctioned purpose and was fair.5 Fair dealing is not a copyright infringement, but it is not a defence either. It's a user's right. As Professor David Vaver wrote, and Koehnen J quoted:

"User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that benefits remedial legislation."6

Therefore, Koehnen J wrote, fair dealing should not be interpreted restrictively but broadly to allow for users to exploit their rights to criticism, review and reporting under the fair dealing exception.7 The court must assess, what was the user's purpose in using the copyrighted work?8 Koehnen J quoted the U.S. Supreme Court in repeating that: If it was to make something new, then the users should get the benefit of the "breathing space" provided by the fair dealing exception.9

Koehnen J found that the copyrighted material was used for the purpose of review, critique and news. It was fair dealing, therefore not an infringement.

Test for an Injunction

1) Serious issue for trial

Koehnen J applied the three-step test for an injunction and found that the plaintiffs had a serious issue for trial (just barely) on the allegation of fraudulent misrepresentation. However, the court found, there was no such issue for trial in the allegations of passing off, infringement of moral rights and invasion of Wiseau's privacy.

2) Irreparable harm

The plaintiffs fell down at the second leg of the test: irreparable harm. The evidence must be capable of supporting the inference that irreparable harm would flow form the alleged wrongful acts if they occurred.10 Even where the court was prepared to accept that the loss of exclusivity of copyright or the breach of copyright would have constituted such harm if the documentary were actually a replacement for The Room, the plaintiffs failed to show evidence of irreparable harm.

3) Balance of convenience

The court must assess who of the parties would suffer greater harm if the interlocutory injunction is refused or granted. Koehnen J wrote, "The harm alleged by Mr. Wiseau is tenuous at best."11 He didn't even claim damages for defamation. On the other hand, the makers of Room Full of Spoons would face real business losses and be unable to fulfill their agreements with third parties if the injunction were granted.12 Lastly, they would face a limiting of their freedom of expression, and the court cannot justify restraining speech that is not defamatory, particularly at the interlocutory stage.13

For these reasons, Koehnen J dissolved the injunction restraining the distribution of Room Full of Spoons and ordered attribution of the images used to the plaintiffs.

Conclusion

Koehnen J dealt with this multi-faceted set of issues in an orderly way that helps readers to understand what issue flows from what alleged infringement, where the plaintiffs failed to prove their case, and what fair dealing really is and is not. It is not a defence, but it is a user's right that should be interpreted widely to promote the free expression of ideas. Koehnen J seized himself of the matter and will address any issues that might arise from the advertising of Room Full of Spoons. With the distribution of the documentary rolling out and the wide release of The Disaster Artist scheduled for Dec. 8th, 2017, it will be interesting to watch for further decisions from Koehnen J.


1 Nicholas Barber, "The Room: Why So Many People Love "The Worst Film Ever Made" online: BBC.com (4 March 2016) http://www.bbc.com/culture/story/20160212-the-room-why-so-many-love-the-worst-film-ever-made.

2Wiseau Studio et al. v Richard Harper, 2017 ONSC 6535 [Wiseau v Harper] https://www.ippractice.ca/blog/wp-content/uploads/2017/11/20171101135951334.pdf

3 More on that from the film's leading actor, Franco, who played Wiseau, here: http://variety.com/video/james-franco-disaster-artist-tommy-wiseau-criticism)

4 Wiseau v Harper, supra note 2 at paras 1-12.

5 Wiseau v Harper, supra note 2 at para 60.

6 David Vaver, Copyright Law (Toronto: Irwin Law, 2000) at 171 [Vaver]; cited in Wiseau v Harper, supra note 2 at para 62.

7 Wiseau v Harper, supra note 2 at para 63.

8 Ibid at para 65.

9 Campbell v Acuff-Rose Music, Inc. 510 US 569 (1994) at 579; cited in Ibid at para 66.

10 Wiseau v Harper, supra note 2 at paras 141-145.

11 Ibid at para 147.

12 Ibid at paras 147-150.

13 Ibid at paras 151-152.

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