Why Would Anyone Infringe the “World’s Worst Movie”? (Actually There was no Infringement—Ontario Court Rules it was a Fair Dealing)

The only cult movie I have ever watched is Rocky Horror Picture Show, and that was years ago. However, I still remember the flicking of cigarette lighters (this shows how long ago this was) at certain points in the movie and people shouting out various expletives, as if on cue, as certain actors appeared on the screen. Until recently I had not heard about, much less seen, a more recent cult film, The Room, (2003). Now that I have seen parts of it—but not all, I must confess—I can say it amply lives up to its reviews as possibly the worst film ever made. The Guardian described it thus; 

“a $6m car crash that has been dubbed “the Citizen Kane of bad movies” thanks to its stilted dialogue, flimsy plot, repetitious storyline and tone-deaf, godawful acting.”

This reputation has been the wave on which its director, producer, writer and lead actor Tommy Wiseau has ridden to a form of fortune and “fame”. Although the film grossed under $2000 during its two-week run before it disappeared from screens, it was viewed by a few cinephiles who considered it to be such a truly terrible movie that it would fun to get together with friends to watch it—and laugh.  Wiseau was asked to arrange for a private showing. It was a sell-out and since then watching the film has become a cult experience for its fans. Rituals have developed surrounding showings of the film, and fans often come in costume for the (usually) midnight showings. Wiseau has turned the film’s awful reputation into a promotional vehicle, making cameo appearances and selling merchandise at various showings of the The Room in independent cinema venues across North America. He has also been highly protective of his creation, and the “mystique” surrounding it that has enhanced its appeal to cultists. Amongst the elements of mystique is Wiseau’s personal background. Where is he from? (He claims he is from New Orleans). What is his story? How was he able to finance the making of the film?

Some of this was revealed, or more correctly partially revealed, in the 2017 New Line film, The Disaster Artist, a dramatization directed by and starring James Franco. That film, based on a memoir written by Wiseau’s co-star Greg Sestero, and a book Sestero co-authored with writer Tom Bissell, tells the story of how The Room came to be made, and what happened on the set. It won critical acclaim. Franco won the award for best actor (portraying Wiseau) at the 2017 Golden Globes and the film was nominated for an Oscar for the best adapted screen play. The Disaster Artist was made with Wiseau’s full approval and cooperation. He was paid an undisclosed sum for his authorization, and apparently also had a financial stake. Not so popular with Wiseau was a documentary titled A Room Full of Spoons, a self-described “unauthorized documentary” made by independent Canadian film-maker Richard Harper and his associates. And hereby hangs a copyright tale.

The title of the documentary comes from an episode in the film where a stock photograph of a spoon appears in a framed picture in the main room where the “action” (such as it is) takes place. The props manager had not even bothered to insert a “personal” photo into the frame, revealing once again the poor production values that characterize the movie. At this point in the action, cult fans throw spoons (presumably plastic) at the screen. Harper first came into contact with Wiseau at a performance of The Room at the Mayfair Theatre in Ottawa (Ontario), and was so captivated by the experience that he decided to produce a documentary on the movie and on Wiseau. To help raise funding, Harper launched a Kickstarter campaign in 2015 to produce what his promotional material described as “A love letter to The Room”. By the time the filming of A Room Full of Spoons was completed, the “love letter” had turned into what could better be described as an exposé from a jilted lover.

Wiseau initially cooperated with Harper but that cooperation began to wane once Wiseau had made his deal with the producers of The Disaster Artist. He reneged on agreements to licence clips of The Room to Harper and insisted on final editorial sign-off. Growing increasingly frustrated, Harper and his associates proceeded with the filming without Wiseau’s agreement, including many interviews with members of the cast. Because of the nature of the documentary, which was centred on fan reaction to the film, Harper needed to incorporate some footage from The Room, and the final cut of his 109 minute film includes 69 clips from the original movie totalling approximately 7 minutes in all. Not happy with the documentary and its treatment of him and his film, Wiseau set out to stop the release of A Room Full of Spoons. This is where it gets interesting from a copyright perspective.

A Room Full of Spoons was successfully released and exhibited at a number of film festivals in Europe and North America in an attempt to get publicity and a distributor. Wiseau then counter-attacked, accusing Harper of copyright infringement. He sent a number of cease and desist letters to festival organizers. As a result of Wiseau’s actions, a planned tour of North America and Europe for the documentary had to be cancelled. Further negotiations took place and some changes were made to the film but just the day prior to its official release in June 2017 in Toronto, Wiseau’s legal counsel sought an injunction to prevent its release. Harper and his associates were caught by surprise and did not appear in court to oppose the proceedings. An interim injunction was granted, with a date set in October for a full hearing. During the period of the injunction The Disaster Artist was released but A Room Full of Spoons had to remain on the shelf.

When the injunction petition was re-heard in October it was dismissed on grounds of less than full disclosure by the plaintiff (Wiseau), with costs awarded to Harper. Unsuccessful attempts were made to reach a settlement and the case ended up at trial in Ontario Superior Court, with Wiseau alleging several offences, ranging from breach of his copyright and moral rights, misappropriation of personality, passing off, and intrusion upon seclusion. The defendants counterclaimed with respect to improper obtaining of the injunction and other acts taken to prevent the release of A Room Full of Spoons. Regarding the charge of breach of copyright, Harper argued fair dealing, and that is what we shall look at in this blog posting.

Mr. Justice Schabas examined this issue at length. First, he had to decide whether there was a “substantial taking”, in other words was there sufficient copying of material from The Room to constitute a possible infringement before examining whether such use was covered by fair dealing? The issue of what is “substantial” is not defined by law, is subject to interpretation and is not necessarily related to quantity. A substantial taking could involve just a small part of a work if the material copied formed its essence. The judge decided that the copying was substantial even though the clips of the film constituted just 7 minutes of the documentary;

“In my view, Room Full of Spoons does reproduce a “substantial part” of The Room within the meaning and intent of…the Copyright Act. While the amount is not large compared to the length of the film, the documentary would not be the same without the number of clips used, and this amount of use cannot be regarded as “trivial””.

Having established that there was substantial use of the material, the court then tackled the fair dealing question. This in turn required a determination as to whether the taking fell within the specified fair dealing purposes enumerated in the Copyright Act. In Canada, these are research, private study, education, parody, satire, criticism, review or news reporting. For the latter three, information regarding the source of the material, etc. must be provided. So did Harper’s use fall within any of these allowable purposes? The defendants claimed their use fell under “criticism and review”. The plaintiffs claimed that Harper’s film was not a “proper” documentary but rather a “tabloid-style exposé”. The court heard evidence from various witnesses as to the definition of a documentary but in the end decided that the definition used by the Academy of Motion Picture Arts and Sciences, namely that a documentary is simply a non-fiction film, made the most sense. The court also noted that additional information provided in the film about where Wiseau was originally from (Poland), his birth name (Piotr Wieczorkiewicz) and how old he was (born October 3, 1955) constituted “news reporting”. I will cut to the chase and quote from the court record;

“In short, a documentary can be many things, and can be positive or negative about its subject. To the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting, then such use is for an allowable purpose under the fair dealing provisions of the Copyright Act. Room Full of Spoons meets each of those purposes.”

In addition, the credits in the documentary met the requirements of attribution.

However just because a dealing falls within an allowable purpose does not necessarily make it fair. In earlier cases, the Supreme Court of Canada outlined six factors that need to be assessed in determining whether a use constitutes fair dealing. No one factor is determinant; it is the overall assessment that counts. The factors are (1) the purpose of the dealing; (2) the character of the dealing; (3) amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work and (6) the effect of the dealing on the work.

Let’s see how the court weighed the six factors.

Purpose

Since the purpose was for criticism, review and news reporting, the dealing met this test.

Character of the Dealing

Since the copyrighted material was generally accompanied by commentary illustrating or supporting points made by the narrator or interviewees, a common technique used in review and criticism, the court found the character of dealing was appropriate and supported a conclusion that the dealing was “fair” under this factor.

Amount

The court found that while the documentary’s use of footage from The Room was not trivial, it was also not excessive. The purpose of the copying was not to replace the original film.

Alternatives

Could Harper have used a non-copyrighted work to achieve his objectives? Since the subject of the documentary was The Room, the court determined that without material from the original film, Harper could not have made his documentary. However, instead of using material without permission, he had the alternative of licensing it from Wiseau, but Wiseau had refused access to any of the material unless he had editorial control. The court observed that one of the reasons for a fair dealing exception for criticism was to enable objective criticism, specifically criticism that the object of the criticism may not like or agree with.

Nature of the Work

The original work, The Room, was neither unpublished nor confidential. Indeed, full copies exist on YouTube. The court found that this factor favoured Harper.

Effect on the Dealing on the Work

This factor looks at whether the dealing had a negative impact on the original work, for example, would it compete with it? Wiseau complained that Room Full of Spoons would be in competition with his film, even though it was a derivative work. A test might be whether viewers who had seen the documentary might consider that they now had no need to view the original film. Some experts who testified thought that watching the documentary might whet the appetite of viewers to see the original. The court concluded that there has been no evidence that the limited release of the documentary had any negative impact on screening of The Room, and in fact the two works might complement rather than compete with each other.

Having seen how the court examined each of the factors, you will not be surprised that Judge Schabas concluded, “the fair dealing exception to copyright infringement applies in this case.” 

If that wasn’t good news for Wiseau what came next was worse. After dismissing Wiseau’s various other complaints (infringement of moral rights, passing off, misappropriation of personality, etc.), the court then determined damages from the defendant’s counterclaim. The defendants were awarded $550,000 USD in general damages, to compensate them for loss of earnings given that Wiseau’s litigation had caused them to miss the “window of opportunity” to distribute A Room Full of Spoons at the time of the release of The Disaster Artist, and an addition $200,000 CAD in punitive damages, plus costs.

The punitive damages resulted from the way in which Wiseau had conducted his pursuit of Harper et al. Once the court action had been initiated, Wiseau dragged his feet, failed to appear, failed to appoint counsel and then tried to withdraw the case to have it heard in an alternate jurisdiction (in the US). As the court stated;

The plaintiffs’ conduct has been oppressive and outrageous towards the defendants over many years and in this lawsuit. The plaintiffs engaged in bad faith negotiations with the defendants in order to delay or prevent the release of the documentary when it likely would have received much attention and accolades…The plaintiffs did their best to keep the cloud on title over the documentary caused by the injunction for as long as they could by attempting to delay the litigation whenever possible.”

The defendants posted a triumphal note, “We Won!”  Indeed they did, in what seems like a victory for justice and common sense. I wouldn’t necessarily say that about all fair dealing/fair use litigation since at times the courts have, in my opinion, stretched the application of what is “fair” to the detriment of the rights-holder. Moreover, there is a current risk that fair dealing in Canada will be widened even further, with the possibility that the list of specified purposes will be considered “illustrative” rather than “exhaustive”. This would be bad news for creators and rights-holders. Be that as it may, fair dealing and fair use are also an integral part of the copyright system, as I pointed out in a blog post a couple of years ago, and this case proves the point. It also helped clarify several issues regarding the application of fair dealing in Canadian entertainment law.

It may have been a pyrrhic victory, however. The cloud of uncertainty hanging over the legal status of A Room Full of Spoons has been lifted—in Ontario at least. Presumably Harper and associates are now free to strike an agreement for distribution in Canada, if they can. But the Ontario court ruling has no legal status in the US, (other than as a possible point of reference) and Wiseau could launch action there to try to block a US release of Harper’s documentary. This is exactly what he suggested he would do when seeking to withdraw his Ontario case after it became apparent it was not going well for him. Moreover, Harper still has to collect damages from Wiseau, Wiseau Films, and Wiseau Studio LLP. Wiseau has proven to be a slippery character and recovery of damages from these US-based entities may not be so easy. I am led to understand (don’t quote me) that since neither Ontario nor Canada has an enforcement of money judgement treaty with the US, enforcement of Mr. Justice Schabas’ judgement may be problematic. At the very least, further litigation would likely be required.

It’s been quite a saga. Wiseau continues to generate publicity with his actions, and to pique the curiosity of those who may want to watch the “world’s worst movie”. Copyright infringement was really a side-show in the legal case against Richard Harper as the real intent of Wiseau’s actions was to stop the release of a film about him that he didn’t like. As the judge noted, Wiseau could possibly have sued for defamation, but he instead chose the route of copyright infringement, with a few other alleged offences thrown in for good measure. It didn’t work and was an expensive lesson on the consequences of abusing the process. The full 133 page judgement makes for interesting reading, if you are stuck at home in self-isolation and feel so inclined.

But if you’re really interested in what all the fuss is about, go and see The Room and then take in the “unauthorized documentary”, A Room Full of Spoons. There is no question that you will have fully earned your cult badge at this point.

© Hugh Stephens, 2020. All Rights Reserved.