Canadian entertainment lawyers are generally under-fed when it comes to court decisions – we have to scavenge through the (already relatively slim) pickings of general copyright jurisprudence, trying to find applications of principles that, if you kind of squint and look at them in the right lighting, could maybe sort of be germane to film and television production problems. But, hark! In April 2020, the Ontario Superior Court of Justice released its decision in Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504 – and as it is the first detailed consideration of how to apply copyright’s fair dealing mechanism to documentary films, it offers a satisfying meal indeed. Even better, it involves “the greatest bad movie ever made” – The Room. (Full disclosure: Dentons Canada LLP acted for the defendants in the case.)
The backstory to the decision is, much like The Room itself, difficult to do justice to in a summary, but this should suffice for present purposes: Tommy Wiseau made a movie called The Room; it is a legendarily bad movie, spawning, among other things, a cult following, a James Franco-starring scripted feature film, and a documentary about The Room and its critical and public reception entitled Room Full of Spoons, which was produced by the defendants in this case; Wiseau, despite initially being supportive of the documentary, soured on it, and commenced a claim against the defendants, seeking relief for, amongst other things, copyright infringement, passing off, and misappropriation of personality; Wiseau was successful in obtaining an interim ex parte injunction which prevented the producers from exploiting Room Full of Spoons at a commercially critical time; the injunction was eventually lifted in Wiseau Studio et al. v. Richard Harper, 2017 ONSC 6535; the case on the merits was heard earlier this year, and has culminated in this decision, which is a consequential one for Canadian entertainment lawyers.
Wiseau Studio offers eight important lessons:
- Docs Are An Allowable Fair Dealing Purpose! The decision confirms that documentary films qualify as criticism, review and news reporting under the Copyright Act’s allowable fair dealing purposes. (See paras. 172-183 of the decision.) While this conclusion had long been intuited and advocated for (see the Documentary Organization of Canada’s 2006 “white paper” The Copyright Clearance Culture and Canadian Documentaries, the Wiseau Studio decision is the first definitive pronouncement by a Canadian court on the matter.
- Standard Documentary Practices Can Qualify As Fair Dealing! The customary practice in documentaries of including clips (even extensive ones) from a prior work, and providing context about and criticism of those clips, is compatible with fair dealing – though the conclusion with respect to any particular dealing will, of course, be fact-specific and contextual. In paras. 184-198 of the decision, the court briskly assesses whether the use of clips from The Room as found in Room Full of Spoons was “fair” on the six-part multi-factor fair dealing test – and concludes that the analysis on all six factors favours the defendants and a finding that the dealing was “fair”.
- Successful Non-Substantial Part Defences Need to be Pretty Darn Non-Substantial! Be careful about relying on any “not a substantial part” arguments as a defence to a claim of copyright infringement – the court concludes that copying 7 minutes from a 99 minute documentary (or approximately 7% of the original work) constitutes a “substantial part”. As previously noted here on the Signal, figuring out what constitutes a “non-substantial part” of a copyright-protected work is tricky – in paras. 159-165 of the Wiseau Studio decision, the court concludes “with some reluctance”, that the number and aggregate duration of the clips taken from The Room were more than “trivial”, and so the defence that the documentary used less than a substantial part of the original film was not available to the defendants.
- You Can’t Use Moral Rights to Prevent People From Criticizing Your Work! Never the strongest of the plaintiff’s claims, it’s nice to see the court confirm (in paras. 199-209) that criticizing a previous work in a new work does not, in and of itself, violate the moral rights of the author of the previous work.
- It’s Difficult for Public Figures to Rely on Personality-Based Torts to Object to Movies About Themselves That They Don’t Like! Simply making a film about someone (particularly someone who has a public profile), or including that someone in a film, does not constitute any of the torts of misappropriation of personality, passing off, or intrusion upon seclusion. The court is dismissive of the plaintiff’s attempts to use collateral attacks utilizing personality-based rights to foreclose critical commentary on his film (see paras. 210-228). In dismissing the claims, the court made some noteworthy observations, in particular stressing the importance of freedom of expression as a limiting agent on the scope of these personality-based torts, particularly for public figures. With respect to intrusion upon seclusion, in particular, the court noted that, just because the plaintiff was sensitive about certain details of his life (such as his place of birth and the name he was given at birth), that did not transform such publicly-available information into the kind of information that a reasonable person would view the disclosure of as “highly offensive”. While the plaintiff in Wiseau Studio was unsuccessful in raising these personality-based claims noted in this paragraph, it is worth flagging that the plaintiff did not sue for defamation (as the court notes, the failure to raise defamation was “perhaps because the documentary is on a matter of “public interest,” … and he cannot point to any factual errors in the film, or identify any comment that is not based on fact, making the success of a defamation claim rather unlikely”); producers are cautioned to remember that the mere fact that a producer makes a documentary about someone else does not shield the producer from potential liability if the producer makes false defamatory claims about the person (subject, of course, to potential defences, such as responsible communication in the public interest).
- It’s Easy to Provide Proper Attribution in a Documentary! As the court notes in para. 170, providing credits for photographs and film clips in the end credit roll of a film satisfies the “attribution” requirements of the Copyright Act’s fair dealing provisions.
- TPM Circumvention Claims Can’t Be Asserted Solely on the Basis That Copying Occurred! Arguing that a “technological protection measure” has been circumvented requires an evidentiary basis – the plaintiff’s attempt to argue that a TPM had been circumvented solely on the basis that the defendants “ripped” the clips off a Blu-ray disc was dismissed for lack of evidence. See paras. 166-167.
- Registering Your Copyright Provides Good Value! Registering copyright with the Canadian Intellectual Property Office (CIPO) presents a bargain, which can avoid much more costly legal wrangling down the road. The court in Wiseau Studio expressed some confusion about who exactly owned the copyright in the film (see paras. 151-158), before, ultimately, giving the plaintiff the benefit of the doubt and concluding that they had standing to bring the action. This could have been easily avoided by properly registering the copyright with CIPO and benefiting from the presumption in Section 53(2) of the Copyright Act, which provides that “A certificate of registration of copyright is evidence that the copyright subsists and that the person registered is the owner of the copyright”.
Wiseau Studio is an entertaining read, but also a signal development for Canadian entertainment lawyers – providing authority and guidance for some critical issues in film and TV production.