Nancy Rubin, QC and Sam Ward

Background

Wiseau Studio, LLC et al. v. Harper et al.¹, a recent decision authored by Justice Schabas of the Ontario Superior Court of Justice, is not just a terrifically interesting decision on copyright, moral rights, and more, it also represents the most recent chapter in the history of the movie that Entertainment Weekly once called “the Citizen Kane of bad movies”: The Room.

The Room has become a cult classic since its release in 2003 – its fame based on how deliriously awful the movie is. It was written, directed, produced, and starred in by Tommy Wiseau. All over the world, monthly screening parties are held and Wiseau often attends, signing autographs and selling merchandise.

At the centre of the litigation in the Harper case is a documentary called Room Full of Spoons that explores the phenomenon of The Room’s popularity, the impact it has had on its fans, and the enigmatic Wiseau himself.

Wiseau sued the creators of the documentary prior to its release, alleging infringement of his copyright and moral rights in The Room. He also claimed that the creators had unlawfully invaded his privacy, misappropriated his personality and committed the tort of passing off. He obtained an injunction against the promotion and release of the documentary; the creators counterclaimed for damages related to their inability to release or promote their film.

Room Full of Spoons

The documentary Room Full of Spoons – created over five years at a partially crowdfunded cost of about $100,000 – was completed in January 2016. In addition to including interviews with the cast and crew of The Room, its fans, film professors, and critics, the documentary explores how The Room was funded and Wiseau’s background, both subjects about which Wiseau has been notoriously secretive. It also includes a total of 7 minutes of short clips from The Room, with commentary.

The name of the documentary, Room Full of Spoons, was inspired by scenes in the film.  Much of The Room occurs in the living room set and no one had thought to replace a framed stock photo of a spoon with an actual photo.  Fans noticed this and so during screenings, threw spoons whenever the photo appeared.  After a show, all you are left with is a “room full of spoons” – hence the name.

While Wiseau was initially supportive, he later became actively opposed to its release. He complained the documentary was “too negative” and began an online “Shame on You” campaign to denounce the documentary, and accused the creators of copyright infringement. He retained lawyers in California and Ontario, sending cease and desist letters and demanding changes to the documentary. He also threatened potential exhibitors, alleging copyright infringement and illegal downloading of The Room and demanded that his image not be shown.

The creators unsuccessfully attempted to negotiate a licensing agreement with Wiseau for their use of clips of The Room but Wiseau wanted to retain editorial control over the film as a condition of any agreement.

Room Full of Spoons was to be released June 1, 2017 but at Wiseau’s request, the creators agreed to delay the release of the film to try to resolve his complaints. Instead, Wiseau strategically used this delay to apply for and obtain an ex parte injunction (without notice) in Toronto preventing them from promoting or releasing the movie.

During the course of the litigation, shortly after the injunction was lifted, a $10 million Hollywood film about the making of The Room was released, called The Disaster Artist, starring actors Zac Efron, Seth Rogen and James Franco as Tommy Wiseau himself. As a result of the injunction and outstanding claims, Room Full of Spoons missed out on the opportunity to time its release with substantial buzz about The Disaster Artist and The Room and the documentary creators were unable to complete a distribution agreement which was in negotiations.

The proceedings

Wiseau’s surprise injunction was dissolved November 1, 2017 by another Ontario Justice, who found that Wiseau had misled the court and failed to make full and fair disclosure on the motion. He imposed costs of about $100,000 on Wiseau (which was eventually paid). But, even after the injunction was lifted, the threat of Wiseau’s lawsuit hung over the heads of the creators and prevented the release of the documentary.

The 10-day trial began January 6, 2020. In keeping with his reputation, Wiseau’s behaviour was erratic during the proceedings. He made numerous attempts to delay the trial. He accused the Defendants of perjury and attempted to have the Crown prosecute them. He attacked the Ontario justice system as stacked against him and on the eve of trial sought to discontinue his claims. The motions Judge refused, finding that the defendants were entitled to have a court determine whether the lawsuit which effectively restricted their freedom of speech and commercial rights have been legally justified. He was supposed to be the first witness but wasn’t present, arriving two days later.

Legal findings

Copyright

After dealing with the preliminary issue of who owned the copyright in The Room and deciding that it was Wiseau himself, Justice Schabas decided that Room Full of Spoons reproduces a “substantial part” of The Room within the meaning and intent of s.3 of the Copyright Act.  While the amount of the clips was not large compared to the length of the film, the court found the documentary would not be same without the clips used and cannot be regarded as “trivial”.

The issue of whether or not copyright infringement had taken place, however, was best decided in the context of fair dealing.

Fair dealing

Fair dealing is a user’s right, and is to be given a generous scope. Wiseau asserted that Room Full of Spoons was not a “proper” documentary but a “hit piece”. Justice Schabas rejected this; it did not matter that Wiseau felt that Room Full of Spoons was a “tabloid-style exposé” or that it contained facts that he did not want disseminated.

“To the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting,” Justice Schabas said, “then such use is for an allowable purpose under the fair dealing provisions of the Copyright Act”.

Justice Schabas then considered the six-factor test from CCH Canadian Ltd. v. Law Society of Upper Canada² for determining whether or not the use of The Room clips was “fair”. The Defendants were successful at each step of the test. No copyright infringement had taken place.

Moral rights

Wiseau had claimed that his moral rights had been violated first, by the use of low quality clips of The Room having been “ripped” from a disc or YouTube, and second, by being associated with Room Full of Spoons against his will which he found “reprehensible, both artistically and personally.” The first of these claims was unsupported by the evidence.

On the second, Justice Schabas observed that to the extent the documentary was critical of The Room as a bad movie and Wiseau as a bad movie-maker, there was nothing new about this; this is why The Room is famous. It achieved its cult status because it is “intoxicatingly awful”, a “car crash of incompetence” and an “unmitigated disaster”, as described in mainstream media. In this context, a documentary that is critical of The Room and its maker cannot be said to have harmed the honour and reputation of Wiseau. Furthermore, the creators of the documentary promoted it as “the documentary Mr. Wiseau does not want you to see”; it was clear that Wiseau was not associated with it.

Intrusion upon seclusion

The documentary disclosed Wiseau’s birthplace, birthdate and the name given to him as a child in Poland. The information was sourced from public records. The court found that while Wiseau may have cultivated an aura of mystery around this information and did not want it known, its disclosure is not, objectively speaking, “highly offensive”. This claim was dismissed as well.

Counterclaim

Justice Schabas accepted the Defendants’ expert evidence that if Room Full of Spoons had been released at the “commercially critical time” that The Disaster Artist was in theatres, it could have earned US $660,000, whereas now its earning potential was closer to US $110,000. This was entirely due to Wiseau’s tactical injunction in June 2017. He awarded the Defendants US $550,000 in compensatory damages for this loss.

For Wiseau’s malicious behaviour, including delaying the proceedings, accusing the Defendants of perjury, and obtaining an injunction ex parte on misleading evidence, Justice Schabas awarded the Defendants CDN$200,000 in punitive damages against Wiseau.

It seems worth mentioning at this point that Richard Harper, who sat at the helm of Room Full of Spoons, was a fan of The Room and Wiseau. He testified that his documentary was meant to celebrate The Room, and not be disrespectful of Wiseau. He did not spend five years making a movie, he testified, to hurt Wiseau, and if he had wanted to do so, there is much more information he learned through his research that he could have reported.

¹ 2020 ONSC 2504 (“Harper”).

² 2004 SCC 13.

This update is intended for general information only. If you have questions about the above, please contact a member of our Litigation & Alternative Dispute Resolution Group.

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