April 23, 2020
Wiseau Studio LLC et al v Harper et al 2020 ONSC 2504

As taken from Justice Paul Schabas’s judgment:

“The Room is a 99 minute long feature film that was written, produced and directed by the plaintiff, Tommy Wiseau. It tells the story of Johnny, a banker, and his fiancée, Lisa, who no longer loves Johnny and is sleeping with Johnny’s best friend, Mark. It is a typical love triangle. Wiseau stars in the production in the leading role of “Johnny.”

Following its release in 2003, The Room played for two weeks at a Los Angeles cinema, grossing $1800. Critics panned the film. In addition to the reviews quoted above, the BBC described the film as “not just bad – it’s intoxicatingly awful.” Entertainment Weekly described it as the “Citizen Kane of bad movies.” The Huffington Post called it a “99 minute train wreck.”

Over time, however, The Room has developed a cult-like following and, as the BBC has reported, “so has its mysterious creator,” Tommy Wiseau. There are monthly viewing parties in at least 60 theatres all over the world. Wiseau often attends these screenings and is treated like a celebrity, signing autographs, posing for photographs, and selling The Room and Wiseau-related merchandise, including t-shirts and Tommy Wiseau underwear.

Mystery around Wiseau is also part of the attraction to fans of The Room. Tommy Wiseau, like his character Johnny, has long hair, wears wraparound sunglasses and speaks English with a strong accent. Again quoting the BBC article, “[w]ith the luxuriant, suspiciously black mane of Kiss’s Gene Simmons and the heavily-accented slur of a drunk Count Dracula, Johnny has to be cinema’s least convincing banker.” However, Wiseau describes himself as a “proud American” who claims to have grown up in Louisiana, but refuses to disclose his age or how he paid for the film.

The defendant Harper discovered The Room in 2010, and has attended at least 25 showings of the film. Wiseau has been present at approximately 12 of these screenings. Harper introduced the film to his childhood friends, Forero McGrath and Racicot, and in April 2011, they sponsored a screening of The Room, sharing the cost of Wiseau’s $1,500 appearance fee with the owner of the Mayfair Theatre in Ottawa, Lee Demarbre. They got along well with Wiseau during his time in Ottawa, and Wiseau invited Harper and his friends to come to Toronto to help Wiseau with several screenings at the Royal Cinema, where they assisted in selling Wiseau’s merchandise. They shared meals with Wiseau who paid for their travel and accommodation, and unexpectedly gave each of the three defendants $80 in cash as well.

While in Toronto, on April 23, 2011, Harper raised the idea of making a documentary about The Room and its fans. Wiseau was supportive of the project, and agreed to participate in it. He suggested that they begin filming the documentary at the upcoming screening of The Room at the Ziegfeld Theatre in New York City.

Harper, Racicot, and Forero McGrath, with two hired assistants, rented a van and film equipment and drove to New York in June 2011. However, while on their way to New York, Harper received an email from “John,” on behalf of Wiseau, withdrawing the invitation and advising that Wiseau was no longer interested in participating in the documentary. “John,” who may well be Wiseau using an alias, indicated that Wiseau would not be in New York in any event until the next day.

The defendants, having made the time and financial commitments to go to New York, continued with their trip. Upon arriving in New York City they went to Times Square to obtain “B-roll footage” of the cityscape for use in the documentary. While doing this near the Ziegfeld Theatre, Forero McGrath noticed Wiseau in a sandwich shop, which was surprising given the email that said he would not be in the city until the next day. However, when the defendants approached Wiseau, he quickly left the sandwich shop, stating that he was very busy. Some of this was caught on camera by Racicot, and was used in the documentary.

Over the next 4 and half years, until early 2016, the defendants worked on the documentary, and its scope evolved. They interviewed all the actors who played named characters in the film other than Wiseau and Sestero, who refused to participate, and several members of the crew of The Room, including the camera operators, production assistants, the script supervisor, and the composer. The defendants also interviewed fans, including “patient zero” who discovered The Room and initiated its cult-like following, film critics, and film professors. They also investigated Wiseau’s background, including traveling to Europe and tracking down his origins in Poland, interviewing his family there and determining his age.

The four individual defendants invested approximately $74,000 of their own money in the film, and raised $26,000 through Kickstarter, a crowdfunding website, which funds were primarily used to pay for the defendants’ travel to Europe to investigate facts about Wiseau’s origins.

The name of the documentary, Room Full of Spoons, stems from a flaw in the film. There are framed photographs in the living room set where much of the film occurs; however, one of them has a stock photo of a spoon, as it appears no one put an actual photo in the frame. Fans noticed this, and whenever the photo of the spoon appears, fans throw spoons at the screen. Someone mentioned to the defendants that following a showing of The Room all you are left with is a “room full of spoons,” and hence the name.

The documentary was completed in January 2016. Room Full of Spoons is 109 minutes long. It contains a total of about 7 minutes of clips from The Room, all of which are short and used in conjunction with commentary or are the subject of commentary afterwards, often introduced by an interviewee or the narrator.

On February 23, 2016, Harper provided Wiseau with a “courtesy copy” of Room Full of Spoons. Wiseau, through “Raul,” had numerous objections to the documentary.

Wiseau complained that the documentary was “too negative” and said it “could be framed with more positivity by at least 60 percent.” He asked that at the end it say “something upbeat and positive.”

The defendants rejected Wiseau’s criticisms and objections, noting that he had not identified anything that was inaccurate in the documentary, and that the facts were obtained from interviews and public sources, including the California court files. They were not willing to change the content or tone of the film.

Even before the documentary was completed, theatres in the United Kingdom and Canada asked to screen it. In 2016 and early 2017, Room Full of Spoons was screened at 10 film festivals in Europe and North America. This was intended to promote the film in order to obtain a distributor.

Nevertheless, Wiseau (or “Raul” on his behalf) escalated his attack on the defendants after the festival screenings. Even before obtaining a copy of Room Full of Spoons, Wiseau sent emails to exhibitors and potential exhibitors of the film, alleging copyright infringement and illegal downloading of The Room, demanding that the film not be shown, and demanding that Wiseau’s image or references to The Room not be used in promoting Room Full of Spoons.

Although Harper made further efforts to negotiate a resolution, Wiseau escalated matters, retaining counsel in California and in Ontario, sending cease and desist letters and making additional demands to change the documentary. The defendants accepted many of his demands for changes in an attempt to avoid a dispute, but Wiseau continued to make additional demands. As subsequent events confirmed, Wiseau did whatever he could to stop the release of the documentary.

As a result of Wiseau’s threats to potential exhibitors, a planned tour of twenty-five North American cities and screenings scheduled in Australia, Poland and the United Kingdom in 2016 and 2017 were cancelled. Several cinemas in Canada and the U.K. had proposed doing double features of The Room and Room Full of Spoons, but these did not go ahead either. The defendants incurred significant expenses and effort in arranging these screenings, and accompanying media opportunities, all of which were lost.

In 2017, the defendants were in discussions with Gravitas Ventures, LLC, to complete a distribution agreement…The uncontradicted evidence of the defendants is that the agreement was not concluded with Gravitas due to the legal steps taken by Wiseau in June 2017…

Room Full of Spoons was to be released on June 1, 2017. However, on May 19 Wiseau’s Ontario lawyers threatened to bring an injunction application unless the release was postponed by two weeks, which was agreed to by the defendants as “a gesture of good faith” in order to continue to pursue a settlement of Wiseau’s complaints. The defendants’ social media platforms promoting the documentary, developed at considerable expense on Facebook, Twitter, Instagram and YouTube, confirmed that the release date was pushed back to June 15, 2017.

Rather than negotiating, however, the plaintiffs used the delay to prepare a surprise injunction application. On June 14, 2017, Wiseau’s lawyers brought a motion to this court, without notice, in Toronto, seeking an injunction to prevent the release of Room Full of Spoons. As Koehnen J. explained in his subsequent decision lifting the injunction, at para. 7, although Bereskin & Parr LLP “gave a couple of hours’ notice to a lawyer in Ottawa who had acted as a corporate solicitor for … the defendants in the past,” that lawyer could not accept service and the motion on June 14 “proceeded as an ex parte motion.” Justice Diamond granted the injunction and directed that the matter be addressed in court again on June 23. On that date, some of the defendants appeared, but they had not had the opportunity to retain counsel and sought an adjournment to do so and to file materials. Justice Akbarali therefore set a return date of October 10, 2017, to argue the matter, and the interim injunction continued until then.

While the injunction was in effect, another film about The Room was released, called The Disaster Artist. The film, a $10M Hollywood production produced by and starring, among others, James Franco, Zac Efron and Seth Rogen, was based on Sestero’s successful 2013 book, The Disaster Artist: My Life Inside the Room, the Greatest Bad Movie Ever Made.

As a result of the injunction and litigation by Wiseau, the defendants were unable to complete the distribution agreement with Gravitas, which advised that it was not prepared to move forward with an agreement until the claim was resolved. The defendants have not been able to show the documentary or obtain other offers for distribution. The defendants were also unable to distribute DVDs or otherwise release copies of the documentary while the litigation continued. This created problems for them with people who had provided money supporting the project on Kickstarter, who had expected to receive copies of the documentary in return for their investment. Some contributors asked for their money back.

In detailed Reasons released on November 1, 2017, Koehnen J. dissolved the injunction because, in his view, “the plaintiffs failed to make proper disclosure on the earlier ex parte attendances and because they … failed to persuade [him] that they should be granted an injunction on the traditional three part test which requires them to demonstrate a serious issue to be tried, that they will suffer irreparable harm if an injunction is not granted and that the balance of convenience favours granting an injunction.”

Due to the material non-disclosure by the plaintiffs, Koehnen J. awarded costs to the defendants on a substantial indemnity basis in the amount of $97,034.68, inclusive of disbursements and taxes.

The trial commenced on January 6, 2020…However, Wiseau, who was expected to be the first witness, was not present…Wiseau arrived suddenly and unexpectedly on Wednesday morning, January 8.

One of the motions, (which was dismissed) brought by the plaintiffs at the outset of the trial was to exclude any reference to The Disaster Artist, essentially on the basis that it is irrelevant and that, somehow, mention of Sestero’s book and Franco’s film would have a “prejudicial effect on the fair adjudication of this action, because such mentions simply try to elicit unwarranted conflation and favourable comparisons between the successful Hollywood feature movie and the Defendants’ amateurish project.”

COPYRIGHT:

Although the pleading confuses the issue and raises doubts as to who owns copyright in The Room and related works, The Room is presented as a work by Wiseau-Films and Tommy Wiseau. Wiseau wrote, acted in and produced The Room, and is inseparably linked to it as its creator and “author” – a term used many times in the Copyright Act but not defined in it and which, in my view, must be given a generous interpretation. Tommy Wiseau is the creator of The Room, and it is his interests that the Copyright Act is meant to protect, absent an assignment. Thus, while the plaintiffs themselves have raised doubts about the ownership of the copyright, having regard to the Copyright Act, the way in which this case was presented, and the absence of evidence rebutting the presumption in s. 34.1, it seems to me that the prudent course is to accept that the plaintiffs have standing
and address whether that copyright is infringed.

In my view, Room Full of Spoons does reproduce a “substantial part” of The Room within the meaning and intent of s. 3 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:” CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 (“CCH”), at para. 56.

I reach this conclusion with some reluctance because Room Full of Spoons does not seek to replace or copy The Room, nor does it purport to copy Wiseau’s skill or judgment, or diminish the value of his work, or to pass his work off as the defendants’ product. Rather, the clips are used to talk about Wiseau’s work, with all its flaws. However, the issue of whether the use of the plaintiffs’ material infringes copyright is best addressed in the context of fair dealing…

FAIR DEALING:

…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.

…My discussion of the requirements for fair dealing, and of the factors to consider in determining whether specific use can be considered “fair,” leads me to conclude the fair dealing exception to copyright infringement applies in this case.

BREACH OF PLAINTIFF’S MORAL RIGHTS:

Wiseau claims that Room Full of Spoons violates his moral rights in two ways: (1) by using low-quality video clips of The Room unlawfully “ripped” from a Blu-ray disc or from YouTube; and (2) by being associated, against his will, with Room Full of Spoons, which he finds “reprehensible (both artistically and personally).”

…even if Wiseau is associated with Room Full of Spoons, the documentary does not prejudice his honour and reputation. To the extent the documentary portrays Wiseau as someone who made a terrible movie, there is nothing new about that. The Room may be a somewhat popular cult classic, but that is because it is so bad, and made badly by Wiseau – “intoxicatingly awful,” a “car crash of incompetence,” the “Citizen Kane of bad movies,” an “unmitigated disaster,” as stated in mainstream media. Even The Disaster Artist, a film authorized by Wiseau, calls The Room the “greatest worst movie” in its tagline. In this context, a documentary about The Room, which is critical of it and its maker, is just like every other reaction to it, and cannot be said to have harmed the honour and reputation of Tommy Wiseau.

INTRUSION UPON SECLUSION:

Wiseau has failed to make out the elements of the tort in this case. No personal details of the kind referred to in Jones v. Tsige were disclosed by the defendants. Rather, what was disclosed was Wiseau’s birthplace, his birthdate, and the name he was given at birth and had as a child in Poland. This information was available from public sources, which is how the defendants obtained and confirmed it. Wiseau may be sensitive about this information because he has cultivated an aura of mystery around it, but disclosure of these facts is not, objectively speaking, something which can be described as “highly offensive.”

COUNTERCLAIM:

(A) counterclaim arises from the plaintiffs’ conduct in bringing this action and in seeking and obtaining the ex parte injunction in June 2017. The defendants also plead that the plaintiffs defamed them in the “Shame on You” campaign in 2015 and following.

The plaintiffs’ claim is dismissed. The counterclaim of the defendants is granted and the plaintiffs shall pay to the defendant Room Full of Spoons Inc. US$550,000 in compensatory damages, plus CDN$200,000 in punitive damages.”