Justice Paul Schabas has provided artists in Canada with the most authoritative statement yet on the bounds of fair dealing as it applies to documentary films in releasing his decision in the case of Wiseau Studio, LLC v Harper on April 23, 2020.
The journey to Justice Schabas’ 2020 decision begins back in 2003, when the plaintiff Tommy Wiseau released The Room, widely acknowledged as one of the worst movies of all time. The film’s unwatchability (it has been described as a “car crash of incompetence and catastrophic misjudgment” that is “rife with flimsy sets, terrible acting and wanton misogyny”), along with the mystery surrounding its creator, helped the Room to develop a cult fan base. The film has continued to screen regularly since its 2003 release so that audiences might mock it, and has lent inspiration to James Franco’s 2017 Hollywood release, The Disaster Artist, as well as a lesser-known documentary about The Room created by the Defendants and titled Room Full of Spoons.
In 2011, the defendants began work on their documentary titled Room Full of Spoons, with the project initially welcomed by Wiseau. As his support for the film waned, the defendants, who were already in the production process, proceeded with their plans for filming. What followed for the defendants were years of legal threats and egregious behaviour by the plaintiffs, and an eventual wrongful injunction preventing the release of their film, all of which is outlined in Justice Schabas’ decision and in his discussion of freedom of expression in Canada.
For documentarians in Canada, Wiseau Studio, LLC v Harper has changed the game. Previously relying on interpretations of the Copyright Act and advice such as that contained in The White Paper, Wiseau Studio, LLC v Harper provides Canadian filmmakers with an authoritative statement defining documentaries as an allowable purpose under the Copyright Act’s Fair Dealing provisions. In his reasons, Justice Schabas tells us that “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”.
Further rounding out this proclamation is the statement that many practices standard to documentary filmmaking can in themselves satisfy the second part of the fair dealing test regarding fair use. In looking at the purpose and character of the dealing, Justice Schabas points out that documentaries are rarely produced with the expectation of commercial profit, and that it is a common technique of documentary filmmaking to provide narration over the copyrighted work that is used, finding the use of clips from a copyrighted work for the purpose of commentary to be an example of fair dealing. Regarding alternatives to the dealing, Justice Schabas notes that in a case such as this, when the documentary is about the copyright-protected work itself, there is “no alternative to the copyrighted material to make the points that are made”.
Justice Schabas’ decision drives home the notion that a core purpose of Canadian copyright law is to balance the rights of users with those of owners, and affirms fair dealing as a user’s right as opposed to a defence to copyright infringement. Justice Schabas points out that Fair Dealing exists as an important part of copyright law as it works to ensure that creators of critical works of public interest won’t be silenced by copyright owners whose original work they wish to critique, stating that Fair Dealing “is based on a range of factors that respect the rights of speakers and users to communicate information and views to the public without undue restrictions”.
The decision provides other practical guidance for documentarians in Canada, confirming that providing credit in the end roll will satisfy the attribution requirement for fair dealing, and providing insight into substantial takings (any justified taking must be very insubstantial). The decision also provides guidance on technological protection measures, otherwise known as digital locks (s. 41.1(1) Copyright Act), providing that any claim brought regarding digital locks must have an evidentiary basis.
Beyond its colourful and at times incredibly frustrating facts, Wiseau Studio, LLC v Harper provides members of the Canadian arts community, and documentarians in particular, with a wealth of practical and authoritative guidance on Fair Dealing as a user’s right. Schabas’ decision is a strong statement on the importance of works that report and criticize, and on freedom of expression in Canada.
Written by Meghan Carlin. Meghan is entering her second year of studies at Osgoode Hall Law School. In addition to her work with the IPilogue, Meghan is a Fellow with the Innovation Clinic and is Co-President of the Osgoode Entertainment and Sports Law Association.
 Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504 at para 183.
 Ibid at para 186.
 Ibid at para 190.
 Ibid at para 177.
 Ibid at para 170.
 Ibid at para 164.
 Ibid at 167.