In Wiseau Studio, LLC et al v Harper et al, 2020 ONSC 2504, the Ontario Superior Court of Justice dismissed claims for copyright infringement and privacy torts brought against the makers of a movie called Room Full of Spoons – a documentary about Tommy Wiseau, maker of the cult classic film, The Room.

Justice Schabas dismissed the copyright claims under the fair dealing exception, finding that the use of seven minutes of footage from The Room without a licencing agreement was fair as it was for the purpose of commenting, reviewing, and providing information about the film and its creator.

He also dismissed three privacy claims: misappropriation of personality, passing off, and intrusion upon seclusion. He found that the use of Wiseau’s image was not for commercial gain and the inclusion of publically accessible information about him in the film and its promotional materials was not “highly offensive”, particularly because Wiseau is a public figure.

The Court awarded the defendant documentarians $550,000 (USD) in damages resulting from an injunction sought by Wiseau that prevented the release of the documentary to coincide with the release of a Hollywood film on the same topic.

Justice Schabas awarded an additional $200,000 (CAD) in punitive damages for Wiseau’s behaviour throughout negotiations with the defendants and the court proceedings.

The Facts

The Room was released in 2003 and it would be an understatement to say that it was not well received by critics. In his decision, Justice Schabas aptly described the film and its reception as follows:

“In June 2003, the plaintiffs, Tommy Wiseau (‘Wiseau’) and Wiseau Studio, LLC, released a feature film called The Room. It was a box office flop and received terrible reviews. Entertainment Media described the film as ‘[a] movie that prompts most of its viewers to ask for their money back – before even 30 minutes have passed.’ A sign on the ticket booth where the film was playing read ‘NO REFUNDS’ and contained an excerpt from a review that said, ‘watching this film is like getting stabbed in the head.’”

In 2016, the defendants in this case completed a documentary about Wiseau, the making of The Room, and the fandom. The defendants approached Wiseau about participating in the project and attempted to obtain a licence from Wiseau, but Wiseau demanded large sums of money to use clips from The Room and editorial control over the documentary.

Wiseau then attempted to derail the documentary. For instance, he sent emails to exhibitors and potential exhibitors of the film, alleging copyright infringement and illegal downloading of The Room. He demanded that the film not be shown and that his image or references to The Room not be used in promoting Room Full of Spoons. As a result, screenings of the documentary were cancelled across North America, Europe, and Australia.

Despite these hurdles, the defendants were eventually able to secure a distribution agreement for the documentary. They intended to release it at the same time as a Hollywood film about The Room (The Disaster Artist starring James Franco, Zac Efron, and Seth Rogen) would hit the box office in 2017.

The Injunction

 Just as the film was set to be released, Wiseau’s Ontario legal team obtained a temporary injunction without notice to the defendants preventing the defendants from showing the film.

The injunction was lifted in November 2017. The motions judge who lifted the injunction found that the plaintiffs had misled the Court on the initial application about the nature and content of the documentary, making it sound more controversial and harmful than it was, and provided incomplete disclosure.

The Copyright Claims

The plaintiffs raised various issues with the documentary, including that the use of clips from The Room constituted copyright infringement.

The defendant documentary makers had from the outset relied on the concept of “fair dealing” to ground their use of the clips from The Room. They had done their own research and spoken to friends who were lawyers in coming to the conclusion that the use of these clips would not constitute copyright infringement.

Justice Schabas agreed. He considered the purpose, character and amount of the dealing, alternatives to the dealing, the nature of the original work, and the effect of the dealing on the original work.

He found that the use of the clips was for the purpose of criticism, review, and news reporting on “the social phenomenon of The Room and its creator”.

He further found that each clip was accompanied by commentary before, after or during the clip.

He found that the seven minutes-worth of clips amounted to a “substantial part” of The Room, but the use was “limited and linked to the objectives of the documentary”.

As for the effect of the dealing on the work, Justice Schabas found that the documentary was not intended to and did not replace The Room itself.

The plaintiffs also claimed that the defendants’ use of clips from The Room breached Wiseau’s moral rights in the film. Moral rights protect an author’s right to the integrity of the work. Under copyright law, they may be breached if the work is “distorted, mutilated or otherwise modified” or “used in association with a product, service, cause or institution” in a way that prejudices the author’s honour or reputation.

In this case, the plaintiffs argued that Wiseau did not want to be associated with the documentary because he saw it as a “hit piece”. Justice Schabas found that a reasonable viewer of the documentary would not conclude that Wiseau was associated with the film. Furthermore, Justice Schabas found that the documentary did not prejudice Wiseau’s honour or reputation because “[t]o the extent the documentary portrays Wiseau as someone who made a terrible movie, there is nothing new about that.”

The Privacy Claims

 The plaintiffs also advanced claims for misappropriation of personality, passing off, and intrusion upon seclusion.

Justice Schabas noted that these torts must be limited in scope so as not to infringe on freedom of expression where the use of personal information or someone’s image is newsworthy or is otherwise in the public interest.

Wiseau claimed that the use of his image to promote the documentary constituted a “misappropriation of personality”. This tort is established when a person’s image or voice has been used “amounting to an invasion of his right to exploit his personality” and there is corresponding damage.

Justice Schabas dismissed the misappropriation of personality claim on the basis that Wiseau was a public figure who had actively promoted an air of mystery around himself. Following Gould Estate, Justice Schabas held that the limited use of Wiseau’s image to promote the film served the purpose of alerting potential viewers that the film included information about a public figure (Wiseau), in contrast to his personality being used to endorse or promote the documentary for commercial gain.

Justice Schabas dismissed the “passing off” claim for substantially the same reasons. He held that “the tort exists to protect a plaintiff from harm arising from unfair use of their identity, such as pretending that a product is that of the plaintiff” and also “protects consumers from being misled”. However, in this case, a reasonable viewer would not conclude that Wiseau made or endorsed the documentary.

Finally, Justice Schabas dismissed the intrusion upon seclusion claim. The Ontario Court of Appeal defined the elements of this tort in Jones v. Tsige, 2012 ONCA 32, as follows:

“The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”

In this case, Justice Schabas held that the plaintiffs failed to make out the elements of the tort. The details about Wiseau disclosed in the documentary were not so personal as to be “highly offensive”. They included his “birthplace, his birthdate, and the name he was given at birth and had as a child in Poland”. Justice Schabas also noted that the defendants were able to access this information using public resources.

Damages from the Injunction

The documentary makers also advanced a counterclaim for damages arising from the injunction obtained by Wiseau which prevented them from releasing the film at a “commercially critical time”.

In order to obtain the injunction without notice in June 2017, the plaintiffs agreed to compensate the defendants for damages arising from the injunction should it later be determined that the injunction should not have been issued. As it was determined that the injunction had been obtained improperly, Justice Schabas awarded damages in the amount of $550,000 (USD).

Punitive Damages

 Justice Schabas awarded $200,000 (CAD) in punitive damages for Wiseau’s behaviour, including engaging in bad faith negotiations delaying the release of the film, misrepresenting to third parties the legality of screening the documentary, and accusing the defendants of perjury. He further noted that Wiseau’s actions aimed at derailing the documentary infringed on the defendants’ freedom of speech, which also supported an award of punitive damages.

Comment

This decision provides a useful framework for documentary-makers considering using copyrighted materials. In this case, the documentary makers successfully relied on the fair dealing exception and were able to maintain editorial independence as a result.

It also highlights the importance of freedom of expression where it intersects with the developing area of privacy torts such as intrusion upon seclusion and misappropriation of personality.

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Emma Romano is an associate at Bersenas Jacobsen Chouest Thomson Blackburn LLP, with a focus on media and defamation, aviation, commercial and general civil litigation.