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.