CITATION: Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504
COURT FILE NO.: CV-17-577020
DATE: 2020-04-23

RE:

WISEAU STUDIO, LLC and TOMMY WISEAU d.b.a. WISEAU-FILMS,
Plaintiffs/Defendants by Counterclaim
AND:
RICHARD HARPER, FERNANDO FORERO MCGRATH, MARTIN
RACICOT d.b.a. ROCKAHVEN PICTURES, ROOM FULL OF SPOONS INC.,
PARKTOWN STUDIOS INC., RICHARD STEWART TOWNS,
Defendants/Plaintiffs by Counterclaim

BEFORE:

Schabas J.

COUNSEL: Daniel Brinza, for the Plaintiffs
Matthew Diskin, Meredith Bacal and Douglas Murray, for the Defendants
HEARD:

January 6-10, 13, 14 and 17, 2020
REASONS FOR JUDGMENT

Introduction
[1]

In June 2003, the plaintiffs, Tommy Wiseau (“Wiseau”) and Wiseau Studio, LLC,
released a feature film called The Room. It was a box office flop and received terrible
reviews. Entertainment Media described the film as “[a] movie that prompts most of its
viewers to ask for their money back – before even 30 minutes have passed.” A sign on
the ticket booth where the film was playing read “NO REFUNDS” and contained an
excerpt from a review that said, “watching this film is like getting stabbed in the head.”

[2]

Despite these reviews, or perhaps because of them, the film developed a cult-like status.
Tommy Wiseau, who wrote, produced, directed and starred in The Room, has become
somewhat of a celebrity, often attending screenings to promote the film, meet with fans,
engage in question and answer sessions, and sell merchandise related to the film.

[3]

In 2011, Wiseau’s co-star and friend, Greg Sestero (“Sestero”), wrote a non-fiction book
about the making of The Room called The Disaster Artist – My Life Inside The Room, The
Greatest Bad Movie Ever Made. A film adaptation of the book was released in 2017 to
broad critical acclaim. Its star, James Franco, who played Tommy Wiseau, received a
Golden Globe Award for Best Actor in a Musical or Comedy. Wiseau was supportive of
The Disaster Artist. He provided on-the-record interviews to the author as well as access

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SUPERIOR COURT OF JUSTICE - ONTARIO

 2

[4]

Another film was also made about The Room, however, which gives rise to this lawsuit.
In 2010, the defendant, Richard Harper (“Harper”) became a fan of the film after
attending a screening in Ottawa. In 2011, together with his friends and fellow defendants,
Fernando Forero McGrath (“Forero McGrath”) and Martin Racicot (“Racicot”), Harper
sponsored a screening of The Room in Ottawa, which included an appearance by Wiseau.
Harper and his friends hit it off with Wiseau, and after spending time with him in Ottawa
and Toronto, and with Wiseau’s encouragement, they decided to create a documentary
about The Room and its fans. However, not long after, Wiseau said he was no longer
interested in participating in it.

[5]

Over the next few years, Harper, Forero McGrath and Racicot worked on the
documentary, investing their own money and raising money through a crowdfunding
website called Kickstarter. The documentary, entitled Room Full of Spoons, was
completed in January 2016. It tells Richard Harper’s story of his interest in The Room
and in Tommy Wiseau, how the film was made and reactions to it. It includes interviews
with many members of the cast and crew, fans, film professors, critics, and others. The
documentary also addresses questions about how The Room was funded and Wiseau’s
background – including where he was born and how old he is – questions raised in The
Disaster Artist, but about which Wiseau is secretive.

[6]

In 2015, Harper had tried to negotiate a licence agreement with Wiseau, as the
documentary includes many clips from The Room. No agreement was reached, mainly
because Wiseau wanted editorial control over Room Full of Spoons, and the defendants
decided to proceed without an agreement. Wiseau, even before seeing the documentary,
then began a campaign to denounce the documentary, accusing the defendants on social
media of copyright infringement and illegal downloading, and sending letters to potential
exhibitors of Room Full of Spoons threatening litigation. This resulted in many cancelled
screenings, including a planned North American tour to 25 cities and to cities in
Australia, Poland and the United Kingdom.

[7]

Nevertheless, in 2016 and early 2017 the defendants were able to arrange showings of the
documentary at some film festivals in North America and Europe, and it received positive
reviews. The defendants, who had now been joined in their project by the defendant
Richard Towns (“Towns”), entered into negotiations with a California film distributor,
Gravitas Ventures LLC, for a distribution agreement. The defendants also sent a copy of
Roomful of Spoons to Wiseau in February 2016 in the hope that any concerns he had
about the documentary would be put to rest.

[8]

Following further correspondence between Wiseau and the defendants in the spring of
2017, and an agreement by the defendants to delay release of the documentary for two
weeks in early June 2017, Wiseau commenced this action by bringing an urgent motion,

2020 ONSC 2504 (CanLII)

to the original script of The Room, photographs and behind the scenes production
footage. Wiseau entered into licencing agreements with the filmmakers for use of footage
from The Room, and appeared in The Disaster Artist himself.

 3

[9]

In the action, and on the motion for the injunction, Wiseau asserted, and continues to
assert, that Room Full of Spoons breaches the plaintiffs’ copyright in The Room,
including Wiseau’s moral rights, and that the defendants have unlawfully invaded
Wiseau’s privacy, misappropriated his personality and committed the tort of passing off.
Although pleaded and relied on in the injunction proceeding, claims for misrepresentation
and breach of contract were not pressed at trial.

[10]

After a hearing on October 10, 2017, the injunction was dissolved on November 11, 2017
by Koehnen J., who found, among other things, that the plaintiffs failed to make full and
fair disclosure to the court on the ex parte motion, that the court was misled, and that on
the evidence before him, the test for an injunction was not satisfied: Wiseau Studio et al.
v Richard Harper, 2017 ONSC 6535. Following an unsuccessful motion for leave to
appeal by the plaintiffs, and after the defendants indicated an intention to bring an antiSLAPP (Strategic Litigation Against Public Participation) motion pursuant to the
Protection of Public Participation Act, 2015, S.O. 2015, c. 23, the parties agreed to an
early trial date and to filing affidavits which would serve as the direct evidence at trial. I
will deal in more detail with many of these steps later in these Reasons.

[11]

In the meantime, because of the injunction and outstanding action, Room Full of Spoons
has not been released or shown anywhere since the litigation was commenced. No
distribution agreement has been concluded, and the defendants lost the opportunity to
release the film while The Disaster Artist was having its successful run in late 2017,
which would have created interest, or “buzz,” in Room Full of Spoons.

[12]

The case was tried before me over two weeks, commencing January 6, 2020. For the
reasons that follow, I dismiss the plaintiffs’ action in its entirety. Further, I grant
judgment in favour of the defendants on their counterclaim, which arises from the
improper obtaining of the injunction, for which the plaintiffs agreed to indemnify the
defendants as a term of obtaining the injunction, and other wrongful acts taken in this
litigation and to prevent the release of Room Full of Spoons. I award the defendants
$550,000 USD in general damages and an additional $200,000 CDN in punitive
damages.

Background Facts
Tommy Wiseau and the phenomenon of The Room
[13]

The Room is a 99 minute long feature film that was written, produced and directed by
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.

2020 ONSC 2504 (CanLII)

ex parte, for an injunction restraining the release and promotion of Room Full of Spoons.
The injunction was granted by Diamond J. on June 14, 2017, and was continued by
Akbarali J. on June 23, 2017, who adjourned the matter to October 10, 2017, to allow the
defendants time to retain counsel and prepare a response.

 4

[14]

The film is described in promotional material, such as on the back of the DVD package,
as “an electrifying American black comedy about love, passion, betrayal, and lies. It’s
what happens in real life. You could be with your loving woman and all of sudden,
BOOM! She’s in bed with your best friend or family member.”

[15]

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.”

[16]

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.

[17]

At screenings, fans often come dressed as characters in the film, and they laugh, heckle
and throw things at various times during the film. This is because the film is so bad.
Unlike the promotional statement on the DVD that it is a “black comedy,” reviewers have
commented that there are very few jokes in the film, its production quality is poor, the
script and acting are wanting with plot lines that go nowhere, and there are “punishingly
long sex scenes.” As the BBC put it, The Room is “a car crash of incompetence and
catastrophic misjudgment.”

[18]

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 Defendants and the Making of Room Full of Spoons
[19]

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

2020 ONSC 2504 (CanLII)

Wiseau stars in the production in the leading role of “Johnny.” Sestero plays the other
leading role as “Mark.” There is no evidence, and it remains a mystery, how The Room,
which reportedly cost about $6 M to produce, was financed.

 5

[20]

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.

[21]

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.

[22]

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. While it was asserted that the defendants chased Wiseau, there
is no evidence from Wiseau on this point, Harper and Racicot strongly denied it in crossexamination, and Forero McGrath was not even asked about the encounter.

[23]

Harper, Racicot, and Forero McGrath attended the screening of The Room in New York
City. They bought their own tickets, and interviewed fans on camera. Some of this
footage was also used in the documentary.

[24]

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.

2020 ONSC 2504 (CanLII)

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.

 [25]

Harper testified that he was unable to interview Sestero, who said he could not because
he was under contract to Franco (discussed below), and because he was loyal to Wiseau.
However, Sestero did provide Harper with introductions to others he wished to interview.

[26]

Each of the defendants had some experience with filmmaking, but none had ever been
involved in making a full-length documentary before. Harper, who led the project, and
directed and narrated it, had made short films and music videos. Racicot works in
multimedia, where he gained experience with filmmaking, and took on the role of
cameraman and cinematographer. Forero McGrath works as a video editor and performed
that role for the documentary. In 2015, the defendant Richard Towns, who owns
Parktown Studios Inc. (“Parktown”), joined the project and assisted in the completion of
the documentary. Towns had experience in post-production and distribution-related work
on a number of films. Parktown, which also employs Harper, provided post-production
services (editing and sound editing) to support the project.

[27]

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.

[28]

Rockhaven Pictures is the name that Forero McGrath, Racicot and Harper use for
branding purposes for their projects. It is not incorporated. The defendant Room Full of
Spoons Inc. was incorporated on December 11, 2015, and the individual defendants
assigned all the rights in the documentary to it.

[29]

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.

Wiseau’s Initial Complaints
[30]

While making the documentary, the defendants had further interactions with Wiseau. In
March 2014, Harper and Forero McGrath attended an event at a bookstore in Toronto
where Greg Sestero was signing copies of his book, The Disaster Artist. Tommy Wiseau
was there and was friendly towards Harper and Forero McGrath. The four of them met up
later that evening after a showing of The Room and had dinner together. Wiseau asked
about the documentary and said he was not against it and hoped it would succeed.

[31]

However, the following year in March 2015, Wiseau began his attack on the defendants
and the documentary, even though he had not yet seen it. He would not see Room Full of
Spoons for another 11 months, in February 2016.

2020 ONSC 2504 (CanLII)

6

 [32]

Just two days after the defendants’ Kickstarter campaign was launched on February 20,
2015, someone called “Raul,” acting for Wiseau but which may also be an alias for him,
sent emails to Harper demanding that the defendants stop using material from The Room
in the documentary, and that all references to Wiseau be removed from the Kickstarter
campaign.

[33]

On March 3, 2015, Wiseau filed a complaint with Kickstarter alleging that the defendants
had stolen footage and were making false statements about Wiseau and “his business.”
The complaint also asserted that the defendants needed permission to use any footage
filmed at screenings. As a result of the complaint, Kickstarter removed the trailer for the
documentary from the campaign, which reduced the number of pledges received by the
defendants.

[34]

Harper spoke to Wiseau on the phone on March 3, 2015, proposing that they negotiate a
license agreement. The parties exchanged email correspondence and a draft licensing
agreement the next day. However, Wiseau demanded a large sum for each clip of The
Room used in the documentary, and the draft agreement prepared by him provided that he
would have final approval of the documentary, which required that the film be focused on
the fans rather than on The Room or Wiseau. These terms were unacceptable to the
defendants, and Harper advised Wiseau that while they had no difficulty allowing him to
view the film before any public release so that he could raise any concerns with them,
they were not willing to agree to give up “Final-Cut Privileges” to him.

[35]

Wiseau reacted, beginning in April 2015, and continuing until February 2016, by posting
a three-part series called “Shame on You” on YouTube and his website. He also caused
the series to be aired before theatre screenings of The Room. Although somewhat difficult
to follow from the material before me, the “Shame on You” series was an attack on the
defendants and their making of the documentary, and alleged that the defendants were
violating copyright laws and committing other wrongs. Terms used in the campaign
included “stealing,” “illegal downloading,” and “fraud.” However, the campaign did not
appear to name the individual defendants or otherwise identify them other than through
the name of the documentary, Room Full of Spoons.

[36]

During this period, Wiseau, through “Raul,” continued to demand payment for the use of
clips from The Room in the documentary. He also demanded that the defendants not use
his name and that promotional posters be changed, asserting copyright and trademark
infringements. Wiseau complained that Harper and his colleagues were being “very
disrespectful” and that their research was going in the “wrong direction.”

Room Full of Spoons
[37]

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.

2020 ONSC 2504 (CanLII)

7

 [38]

One of the plaintiffs’ witnesses, documentary filmmaker Synthian Sharp (“Sharp”),
testified that the story arc of the documentary has three themes: (1) the experience and
culture surrounding The Room and its fans; (2) the making of The Room, as experienced
by those involved; and (3) information about the mysterious Tommy Wiseau. Harper
summarizes the documentary as “an in-depth commentary about the cult-film
phenomenon of [The Room] and its creator, Tommy Wiseau.” He continued:
The Documentary criticizes and reviews the Film and reports on the social
phenomenon responding to it. The Documentary addresses Mr. Wiseau’s acting
style, the inconsistency in the Film’s scenes, the Film’s poor dialogue, ineffective
character development, and unusual reliance on classically characterized
“American” motifs (such as an excessive use of footballs). The Documentary
reports on the Film’s cult-like following, despite the fact that it is widely
renowned as being terrible.

[39]

Having watched the documentary, and The Room, I find the descriptions of it by Sharp
and Harper, above, to be apt. Further, rather than seeking to replace the experience of The
Room, Room Full of Spoons studies and celebrates the phenomenon and the community
that has grown up around it. The documentary complements the original work, which
would explain why several theatres and film festivals have sought to host double feature
screenings.

Wiseau’s Complaints about Room Full of Spoons
[40]

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. These
included the references to his origins, original name and birthdate (which he did not
dispute as inaccurate), the amount of time devoted to his family in Poland, reference to a
California civil court action against him for fraud, and claims by Sandy Schklair, credited
as script supervisor of The Room, that he actually directed 90% of the film.

[41]

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.” In addition, he noted that there were “over 65 clips
from The Room and Wiseau-Films original material including over 24 pictures.” Wiseau
suggested that if they addressed his objections, he “might approve other clips.”

[42]

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. As to the number of clips, the
defendants reminded “Raul” that they had sought to have a licensing agreement, but in
any event took the position that the clips “are covered under fair use.” They attempted to
persuade Wiseau, apparently without success, that use of the clips in the documentary

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8

 9

[43]

Harper’s evidence at trial was that the defendants had left out many other more private
details about Wiseau’s life, which they had learned in their research. Harper described
some of these personal facts as “highly sensitive” and “potentially devastating” and said
they did not include them “because they did not advance the narrative of the
Documentary.”

Screenings of the Documentary and Reactions to it
[44]

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. It was well received. The Huffington Post, in an article that
provides an good summary of The Room, the phenomenon it has created, and the
documentary, described Room Full of Spoons as follows:
Along with capturing the excitement and joy the movie has brought to those fans
all over the world, Harper’s documentary solves a long list of mysteries fans have
wondered about “The Room” for years. It is a very impressive feat of reporting.

[45]

Ottawa Life Magazine referred to the documentary, as “an encyclopaedic reference guide
to everything a fan of the film would want to know.” The lead actress in The Room,
Juliette Danielle, who plays “Lisa,” described the purpose of the documentary as “a love
letter to The Room,” saying the team had “done their homework and talked to everyone
involved in the project.”

[46]

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. In cross-examination, Harper confirmed much of this
campaign by Wiseau, as he saw many of these emails and was told by several
programmers that if they screened the documentary Wiseau would not let them screen
The Room at their theatres. Indeed, the record contains an excerpt from The Guardian
reporting that Wiseau had threatened legal action in Australia, stating: “'World's worst
filmmaker' forces Sydney Underground film festival to cancel its screening of
documentary about cult film.”

[47]

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

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would “reignite past fans and spark curiosity from the next generation of The Room
fans.”

 10

[48]

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.

Distribution Agreement with Gravitas
[49]

In 2017, the defendants were in discussions with Gravitas Ventures, LLC (“Gravitas”), to
complete a distribution agreement. As witnesses for the plaintiffs agreed, Gravitas is a
respected independent film distributor in California, which had offered the defendants a
distribution agreement for a term of 15 years, covering the United States and Canada.
Gravitas was one of a number of distributors to reach out to the defendants, and
expressed excitement at the prospect of releasing it around the time of The Disaster Artist
in late 2017.

[50]

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, discussed below.
Harper and Forero McGrath were both cross-examined on this issue and confirmed that a
deal with Gravitas would have been signed if Wiseau had not sued them. Although the
plaintiffs’ witness Shari Grewal suggested that the defendants would have needed errors
and omissions insurance, which would have been an obstacle to distribution, Harper,
testified in response that the defendants had been told that Gravitas would obtain the
necessary insurance, or assist the defendants in doing so.

[51]

Grewal also suggested that there might need to be more edits, suggested by the
distributor, but Harper said they had the resources ready to do that quickly. Similarly,
while the draft agreement with Gravitas contained other deliverables that might need to
be provided by the defendants, such as releases, cues, closed captions in various
languages, mixing and final editing, the draft agreement gave them 120 days to address
them, which Harper said was “lots of time.”

Wiseau Obtains an Injunction
[52]

In April and May 2017, the defendants engaged in further discussions with Wiseau’s
lawyers at Bereskin & Parr LLP, a well-known intellectual property law firm in Toronto.
The defendants made a number of additional changes to the film in response to Wiseau’s
demands. Also at Wiseau’s request, the defendants removed images and videos of
Wiseau on social media and advertisements for Room Full of Spoons in an effort to reach
a resolution. Although Wiseau complained that the promotional material suggested that
he endorsed the documentary, in fact the defendants’ materials made it clear that this was

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make additional demands. As subsequent events confirmed, Wiseau did whatever he
could to stop the release of the documentary.

 11

[53]

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.

[54]

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.

The Disaster Artist
[55]

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 (“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.

[56]

The Disaster Artist premiered at the Toronto International Film Festival (“TIFF”) in
September 2017, and was released commercially in theatres on December 8, 2017. It
garnered box office revenue of approximately $30M, and received numerous awards and
nominations in early 2018, including receiving the award for Best Actor in a Musical or
Comedy at the Golden Globes, and an Oscar nomination for Best Adapted Screenplay.

[57]

The Disaster Artist is a dramatized version of the making of The Room. It chronicles the
friendship between Wiseau and Sestero, their unsuccessful efforts to make it as actors in
Hollywood, Wiseau’s decision to make The Room, the making of the film, and its
disastrous premiere. In the film, Wiseau’s character, played by Franco, refuses to divulge
where he is from despite speaking English with a thick accent, his age, or how he was
able to fund the making of the film. Indeed, at the end of The Disaster Artist, a caption is

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not the case. They described the film in the trailer, as “the documentary Mr. Wiseau does
not want you to see.”

 12

[58]

Wiseau himself has cultivated these mysteries, refusing to answer questions on these
topics, simply saying he is a “proud American.”

[59]

However, as Harper testified, by the time The Disaster Artist was released, some of these
questions, and others, had already been answered. Wiseau’s origins and his age were
apparently known to Franco, as one member of Franco’s team, Brandon Trost, had
contacted Harper in 2015 asking about the documentary. Franco’s team wished to use it
as reference material to help with their production. It was suggested that Franco might
participate in the documentary, which was exciting for Harper and the other defendants
who were “junior filmmakers.” Harper sent Franco and Trost an early “rough cut.” It
was a password-protected screener such that Harper is aware that Franco and Trost
viewed it; however, they never heard from Franco or Trost again.

[60]

Wiseau supported the The Disaster Artist film. At TIFF he participated in a question and
answer session with Franco. At that session, which Harper attended, Wiseau stated that
he had made an agreement assigning his “life rights” to Franco. While Wiseau produced
the first half of the first page of a letter agreement dated January 21, 2014, that appears to
relate to an assignment of Wiseau’s life story to S/Z Books, an entity owned by Franco,
Wiseau has provided no other details about the agreement. However, in a Vanity Fair
article reporting on the TIFF premiere, Franco was quoted as saying:
“It cost $6 million to make … and it looks like it cost about $6,” he laughed.
“There was an insane billboard in L.A. for like five years that [Wiseau] must have
paid hundreds of thousands of dollars alone [for], and it is the scariest thing
you’ve ever seen, with his lazy eye, like, staring at you. It looks like an ad for a
cult. I saw that billboard and was like, ‘No thanks; whatever they’re selling, it’s
not for me.’ But [the advertising] paid off, because [The Room] plays in almost
every major city at least once a year. I think we worked it out that he must make
half a million or a million dollars a year, or something like that.”

[61]

Wiseau’s involvement with The Disaster Artist continued. He attended the Golden
Globes with Franco, and came onstage when Franco accepted the Best Actor in a Musical
or Comedy award, during which Wiseau unsuccessfully attempted to grab the
microphone from Franco.

The Impact of the Injunction
[62]

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

2020 ONSC 2504 (CanLII)

displayed before the credits, stating that “[t]o this day no one knows…Where Tommy is
from. Or where he made his money. Or how old he is.”

 13

[63]

Social media platforms promoting the documentary were made substantially bare and the
defendants’ investments in marketing and promoting the film were lost. Several interview
requests could not be accepted, depriving the defendants of free publicity and the
opportunity to spur interest in the documentary. Even once the injunction was lifted,
Wiseau threatened Harper and others with further lawsuits wherever Room Full of Spoons
may be shown, creating a cloud over the film and preventing its release anywhere.

[64]

Due to the timing of the injunction and the continuing lawsuit, Room Full of Spoons lost
the opportunity to be released around the same time as The Disaster Artist. At trial, the
defendants led uncontradicted evidence from an expert in calculating intellectual property
damages, Doug Bania. His view was that, had Room Full of Spoons been released, as
planned, prior to The Disaster Artist, it would have benefitted considerably from the
marketing and media “buzz” from The Disaster Artist. Based on his analysis of other
documentaries linked to feature films, Room Full of Spoons would likely have earned
revenues of approximately US$1.1 million, of which the defendants would have received
about US$660,000.

The Lifting of the Injunction
[65]

On October 10, 2017, the continuance of the injunction was heard before Koehnen J.
Prior to the hearing, Wiseau failed to attend for cross-examination on the affidavit he had
filed in support of the injunction. This prevented the defendants from obtaining any
financial or other disclosure from Wiseau as to his income from The Room and The
Disaster Artist, and how, if at all, that may have been impacted by the release of Room
Full of Spoons. To this day, Wiseau has not provided any financial disclosure or
information about his agreements regarding his “life rights” or about any income he
derives from The Room, The Disaster Artist, or anything else.

[66]

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.”

[67]

Justice Koehnen found that “the plaintiffs fell seriously short of the sort of disclosure
required for an ex parte injunction.” He noted that Wiseau painted “a picture of himself
as a serious filmmaker,” complaining that the documentary “mocks, derides and
disparages The Room,” “casts aspersions on” Wiseau and invades his privacy, and

2020 ONSC 2504 (CanLII)

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.

 14

[68]

Justice Koehnen noted that Wiseau did not disclose to the court that The Room’s fame is
not because it is a serious film, but because its fame “rests on its apparently abysmal
quality as a movie,” and that people attend the film to mock it, not to admire it.

[69]

Wiseau also misled the court, Koehnen J. held, because of his assertion that the
documentary said he was a drug dealer, which is not what was said, just that it was one of
the rumours as to how the film had been financed. Wiseau also did not tell the court that
there is mystery around the financing of The Room – a “mystery that Mr. Wiseau does not
clear up but seems to foster as part of his image.”

[70]

With respect to the invasion of privacy claim, Wiseau had complained that the
documentary alleged he had a sexual relationship with Sestero. Justice Koehnen noted,
“the documentary makes no such allegation.” Rather, it notes that one actress
commented, “a couple of others seemed to think they were a gay couple,” but then adds
that Sestero “seemed to want to follow Mr. Wiseau along like a younger brother.”
Further, Wiseau did not disclose to the court that Sestero’s mother asked him not to have
sex with her son, a conversation described in Sestero’s book published in 2011.

[71]

Also on the invasion of privacy claim, Wiseau complained about the inquiries into his
background in the documentary without disclosing that he has cultivated much mystery
about his origins and that this is something his fans have been speculating about for
years. As Koehnen J. noted, “[p]resumably in an effort to cultivate more mystery, Mr.
Wiseau never answers the question directly but always brings his answer back to the fact
that he is an American. At one point a radio interviewer asks him ‘What part of America
are you from, Poland, Czechoslovakia or France?”

[72]

As to the breach of copyright claim, Koehnen J. noted that Wiseau told the court that the
documentary contains seven minutes of excerpts from The Room, but failed to disclose
the relevant fact that “The Room has been available in its entirety on YouTube for
approximately four years and … Mr. Wiseau had not taken any steps to have it removed
from YouTube before he obtained the ex parte injunction.” Further, as Koehnen J. noted,
Wiseau “did not draw the court’s attention to the fact that he would not lose exclusivity
of copyright if the defendants’ use of excerpts from The Room amounted to “fair dealing”
under the Copyright Act RSC 1985, c. C-42. Mr. Wiseau was well aware that the
defendants were relying on the concept of fair dealing. They had raised it with Mr.
Wiseau’s lawyers as early as April 2016.”

[73]

Justice Koehnen then went on to consider the legal issues raised on the injunction motion,
including the merits of the case relevant to the test for issuing an injunction. While the
low test of raising a serious issue to be tried was met for several of the causes of action
pleaded, Koehnen J. identified significant weaknesses in the plaintiffs’ case, weaknesses
that have been confirmed at this trial.

2020 ONSC 2504 (CanLII)

breaches copyright law. However, Koehnen J. found material non-disclosure on each
point.

 [74]

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.

[75]

Wiseau unsuccessfully sought leave to appeal the setting aside of the injunction. The
Divisional Court dismissed his motion for leave to appeal on June 15, 2018. However,
prior to that motion the parties attempted to reach a settlement, and the defendants
moved, unsuccessfully, to enforce what they believed to be a settlement on March 6,
2018.

Pre-trial Steps
[76]

Justice Koehnen was appointed case management judge on March 13, 2018.

[77]

In early 2019 the defendants proposed to bring a motion to dismiss the action pursuant to
Ontario’s anti-SLAPP law, the Protection of Public Participation Act. However,
following a case conference in February 2019, the defendants agreed not to bring that
motion if the matter could be tried quickly. Justice Koehnen, with the agreement of the
parties, then set a schedule for discoveries and the exchange of affidavit evidence, which
would constitute the parties’ evidence in chief at trial, with a view to having the entire
matter heard in the fall of 2019. The trial date of January 6, 2020 was set on June 3, 2019.

[78]

The plaintiffs have had several counsel act on their behalf, and there were periods leading
up to trial when the plaintiffs appeared to be without counsel. All of this is documented in
several rulings and case management directions issued by Koehnen J. which were
provided to me as the trial judge. However, evidence was exchanged in accordance with
the schedule in the summer and fall of 2019.

[79]

Wiseau sought on several occasions to delay the schedule and adjourn the trial, including
bringing a motion on December 10, 2019, which also included a request by Wiseau to
have all witnesses testify in chief, even though both sides had filed affidavits from their
witnesses. Also, as the endorsement records, Wiseau asked Koehnen J. to direct the
Crown to prosecute the defendants for perjury based on their affidavits, in an attempt to
adjourn the trial.

[80]

On December 10, 2019, Koehnen J. directed that the trial would proceed on January 6,
2020, and set out a schedule for the progress of the trial. On December 30, 2019, Wiseau
brought a last-minute motion to adjourn the trial on the basis that he did not have counsel.
This too was refused by Koehnen J., who noted in an endorsement dated December 31,
2019, that the position the plaintiffs found themselves was “a situation entirely of their
own making and one about which I have warned Mr. Wiseau on many occasions.” Justice
Koehnen noted that since February 2019 he had dealt with 3 different motions by 3 sets
of counsel to be removed from the record. In dismissing the motion to adjourn, Koehnen
J. stated: “To use Mr. Wiseau’s language it would be a ‘major disservice to justice’ to

2020 ONSC 2504 (CanLII)

15

 16

[81]

However, Wiseau was represented at his motion to adjourn on December 31, 2019, by
Daniel Brinza, who appeared on a limited retainer to seek the adjournment. Justice
Koehnen noted that Mr. Brinza was the 6th counsel to be retained by the plaintiffs. Mr.
Brinza stated that he did not have sufficient time to prepare for a trial commencing a
week later.

[82]

Following the release of Koehnen J.’s ruling on December 31, 2019, Wiseau sent counsel
for the defendants, and Koehnen J., a document entitled “Total Withdraw” purporting to
discontinue his claims. On Wednesday, January 1, 2020, Mr. Brinza asked that a motion
to discontinue the claim be heard on Friday, January 3, 2020.

[83]

At the motion on January 3, 2020, Mr. Brinza argued again before Koehnen J. that
Wiseau would be prejudiced by being forced on to trial without counsel. In addition, the
“Total Withdraw” document, in which Mr. Brinza had no involvement, was reviewed. It
attacked the Ontario justice system for, among other things, being “stacked against
foreigners and self-represented litigants.” Justice Koehnen again reviewed the history of
the proceeding in rejecting the plaintiffs’ submissions.

[84]

Of particular note was that in seeking to withdraw this action, the plaintiffs disclosed that
they intended to bring a new action in another jurisdiction, presumably in the United
States, for the same relief. Justice Koehnen noted that the result of this would be that,
after having initially obtained an injunction and then pursuing the action for over two
years, which has prevented the defendants from releasing the film, “the plaintiffs would
deprive the defendants of an adjudication and would force them to wait another
undetermined period of time until the plaintiffs’ new action is resolved.” Although it was
suggested by the plaintiffs that the counterclaim could still proceed, Koehnen J. found
that to be inappropriate, as the issues in the counterclaim are “intricately bound up with
the main action,” and “require the issues in the main action to be determined.”

[85]

Finally, at the motion on January 3, 2020 (the Friday before the trial was to commence
the following Monday), a request was made for Wiseau to testify by videoconference.
While in the ordinary course the court would attempt to accommodate such a request, the
request here was brought on the day before trial, long after the schedule had been set in
which Wiseau’s availability during the week of January 6 was confirmed (as it was again
on December 10, 2019 when Wiseau advised Koehnen J. that he would be attending the
trial in person). In dismissing the request, Koehnen J. also noted that video conferencing
raises logistical challenges when counsel are, not unexpectedly, focussing on other
things. As well, he observed that this is a document-intensive case and
“also a credibility case,” and it would not be in Wiseau’s interest “to expose himself to
circumstances which could lead a trier of fact to draw adverse inferences about his
credibility when the real issue is not credibility but confusion or miscommunication.”
Justice Koehnen refused to allow Wiseau to testify via videoconferencing.

2020 ONSC 2504 (CanLII)

allow him to delay access to justice to the defendants and others in the litigation system
simply because he refuses to deal with lawyers on ordinary commercial terms.”

 17
The Trial Process
Preliminary Issues

[86]

The trial commenced on January 6, 2020. Mr. Brinza appeared on behalf of the plaintiffs
and advised that he was retained for the trial. However, Wiseau, who was expected to be
the first witness, was not present. I was advised that he did not intend to come until the
second week of the trial. Mr. Brinza said that Wiseau had some concerns for his safety,
asserting that he had received threats and that some of the defendants have “an unhealthy
obsession” with Wiseau, which apparently made him feel insecure. No evidence was led
to support these assertions, nor was it explained how this prevented Wiseau from coming
in the first week of trial but not the second week. Wiseau’s unavailability in the first
week, and now apparent availability to attend in the second week, was also inconsistent
with what Wiseau had told Koehnen J. about his availability when the trial date was set in
June 2019.

[87]

In any event, following a number of motions by Mr. Brinza for, among other things, an
adjournment, to have Wiseau’s witnesses who are from the United States (including
Wiseau) testify by video conference, and to have Wiseau’s testimony delayed until the
second week of trial, all of which I dismissed, the trial proceeded. After further efforts to
delay Wiseau’s attendance, Wiseau arrived suddenly and unexpectedly on Wednesday
morning, January 8. He testified on that day and his evidence concluded on Thursday
morning, January 9.

References to The Disaster Artist
[88]

One of the motions 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.” The plaintiffs claimed that
reference to The Disaster Artist would “constitute just a publicity stunt and a transparent
attempt by Defendants at capitalizing on the fame and success of such book/movie.”

[89]

I dismissed that motion. The Disaster Artist is highly relevant to the counterclaim for
damages arising from the obtaining of the injunction. Indeed, the reference to
“capitalizing on the fame and success of it” is precisely what the defendants argue they
missed being able to do due to the impact of the injunction and lawsuit. Further, the
defendants noted that the agreement that assigned Tommy Wiseau’s “life rights” to the
producers of The Disaster Artist was highly relevant to the plaintiffs’ standing to assert
some of the claims raised in the statement of claim. The making of The Disaster Artist,

2020 ONSC 2504 (CanLII)

Wiseau’s Attendance at the Trial

 18
and the questions it raised, are also an important part of the narrative and context in
which this dispute must be assessed.

[90]

During Wiseau’s cross-examination, reference was made to documents in an action
brought against Wiseau in the Superior Court of the State of California by Frederick R.
Lietzke, whose wife, Chloe Lietzke, is identified as an Executive Producer of the The
Room. The claim alleges, among other things, fraud against Wiseau. Wiseau’s counsel
objected to this evidence. Wiseau himself also took issue with references to the court
pleading when testifying, arguing that the case was “closed.” One of the court documents,
a sworn declaration by Wiseau, had been previously produced and was included as an
exhibit to Harper’s affidavit provided to Wiseau months before the trial, without
objection by Wiseau at the time.

[91]

Wiseau’s cross-examination concluded on Wednesday afternoon, January 8. The
following morning, before re-examination commenced, Mr. Brinza presented me with a
motion for a mistrial and an affidavit which Wiseau had prepared himself in his hotel
room overnight, informing me that the website for the California Superior Court had
blocked access to the file and the only search result for the case returned the message
“Case Restricted Pursuant To Court Order.” Wiseau went on to state in his affidavit his
belief that it is “a crime for anyone to publish anywhere [a] document related to that
case.” As well, the two documents from the case marked as exhibits appeared to have
been obtained from a website called “plainsite.org” which, Wiseau’s research showed, is
a privately-operated website that collects and posts documents, including court
documents, that might not otherwise be accessible and seeks money to remove such
documents.

[92]

I deferred a final decision on the use of the court documents until Monday, January 13.
At that time, I received a formal motion to expunge all references to the California action,
and a second affidavit from Wiseau, dated January 12, 2020 prepared after he returned to
California after testifying. That affidavit confirmed that Wiseau had been aware of the
defendants’ access to the California court record since he first saw the documentary in
February 2016, as it contains a shot of one of the court documents; however, Wiseau
asserts that he advised Harper of the order sealing the court file and that any publication
of it would be a “contempt of court.” Nevertheless, Wiseau took no steps to enjoin the
release of the film on that basis or any other steps to enforce any sealing order.

[93]

Wiseau’s January 12, 2020 affidavit also included a copy of a Judge’s Order that the
“entire record in this matter be sealed.” It also stated that Wiseau had been informed by
his “California legal counsel” that it is an offence to publish any content from a sealed
file and that the sealing means “the case contents are legally considered never to have
occurred and are not acknowledged by the state of California.” Wiseau also stated that he
had been advised, “once a Superior Court of California case record is sealed by court

2020 ONSC 2504 (CanLII)

The California Court Documents

 19

[94]

I dismissed the plaintiffs’ motion. I had no evidence that the defendants had improperly
obtained or reproduced the court documents, or copies of them, which may be obtained
from many sources. Nor did I have admissible expert evidence of California law on
which to reach any conclusion that admitting the documents in evidence was contrary to
California law. Further, later in the trial when Harper was cross-examined he denied
knowing that the California case was sealed. As well, as noted, Wiseau had known of
their use in the documentary for several years without taking any steps to object to their
use in the lawsuit. In the end, however, these documents were of little, if any, relevance
or value.

The Evidence at Trial
The Plaintiffs’ Case
[95]

Wiseau filed evidence from 8 people in advance of the trial, including 2 affidavits from
himself. At the outset of the trial I was advised that one of Wiseau’s witnesses, Chloe
Sosa-Sims, did not wish to testify and her affidavit was not admitted as evidence. Two
other affidavits were extremely short and of no real significance, and the defendants did
not seek to cross-examine on them. Much of Wiseau’s written evidence was in an
unusual or unsworn format. This is likely because of the revolving door, or lack, of
counsel in the months leading up to the trial and the fact, as described below, that one of
Wiseau’s witnesses, Jeanne Marie Spicuzza (“Spicuzza”), seemed to play the lead role in
obtaining and preparing the evidence. While there are formal deficiencies in the evidence,
I accepted all of it as one might from a self-represented litigant and treated it all as
properly sworn and filed.

Jeanne Marie Spicuzza
[96]

Wiseau’s first witness was Jeanne Marie Spicuzza, from Los Angeles, who described
herself as a “producer, writer, director, actor, performer, fine artist, market researcher,
product developer, consultant and Chief Executive Officer at Seasons & a Muse, a sevendivision entertainment company and corporate conglomerate established in 1993.” Her
affidavit says that she has worked with Wiseau and has experience in producing “one
documentary short, three narrative shorts and two narrative feature films.” In crossexamination she acknowledged that she met Wiseau in July 2018, and her affidavit
stated, “since November of 2018, I have observed the present litigation and its effects on
Tommy Wiseau.”

[97]

Spicuzza provided a two-page “expert witness statement” which discusses why The
Room is appealing to its audience. It also states her opinions that the defendants have
somehow attempted to “erroneously exploit the gains” of The Room and The Disaster
Artist, that they have wrongly “outed” Tommy Wiseau, that Room Full of Spoons fails to

2020 ONSC 2504 (CanLII)

order, a person listed as Defendant (on such sealed case record) gains the right to deny or
not acknowledge anything to do with the legal proceedings…”

 20

[98]

As became clear in the cross-examination of her, and others, Spicuzza has effectively run
the trial for Wiseau, sourcing the other “expert” witnesses and obtaining their statements.
With respect to her own report, Spicuzza says she “instructed herself” as to its scope and
content. She attended the entire two-week trial, and assisted Mr. Brinza frequently,
eventually taking a seat at the counsel table (with my permission) to avoid having to
come forward to pass Mr. Brinza notes and to provide him with information that might be
helpful in his prosecution of the case. In making this observation I am not being critical
of Mr. Brinza. He took on this challenging case on short notice and I am sure Spicuzza’s
assistance was valuable to him. In my view, Mr. Brinza handled himself very
professionally, competently and with integrity.

[99]

Despite concerns about bias and her interest in the action, the failure to provide a formal
expert report, and the limited relevance of her evidence, over the defendants’ objections I
admitted Spicuzza’s evidence. This was largely due to concerns about trial fairness and I
made clear that what weight, if any, I should give her evidence, could be addressed at the
end of the trial.

[100] Spicuzza’s evidence was not helpful. She was an advocate for Wiseau. After asserting
that clips from The Room were used without commentary, she acknowledged she was
stating this only regarding voiceover commentary. She could not identify a single clip,
which was not accompanied by commentary in some fashion, before, after or during the
clip. She took the view that a documentary is meant to enlighten, to uplift, to procure or
promote a cause, and since in her view Room Full of Spoons was negative towards
Wiseau and was “a tabloid or a hit piece” it did not qualify as a true documentary. While
she agreed that a documentary could have a point of view, it was her view that it should
be balanced and “respectful” of its subject.
Shari Hamrick Grewal
[101] Shari Hamrick Grewal (“Grewal”) has been in the film production and distribution
business in Los Angeles for about 30 years. She is familiar with production issues
involving financing, insurance, completion bonds and clearance issues. Grewal noted
that she deals with “fair use” issues and brings in lawyers to provide advice whenever
that arises. She testified that while she has not produced any documentaries, she has sold
many to distributors and broadcasters. Grewal has worked with Spicuzza on a film.
Grewal signed two affidavits, prepared at Spicuzza’s request, the first addressing her
reaction to and concerns with the documentary, and the second one elaborating on issues
relating to errors and omissions insurance. Although the affidavits do not say so, Grewal
said she was asked what would be required to distribute Room Full of Spoons or, put
another way, could she sell it?

2020 ONSC 2504 (CanLII)

“contain production values that are competitive in the present motion picture industry,”
and that she does not regard Room Full of Spoons as a proper documentary “but rather a
tabloid or ‘hit’ piece, a category that would not qualify it for fair use.”

 21

[103] Grewal’s evidence was confusing. She made assumptions, which were not backed up by
the evidence. In her cross-examination on the insurance issues, when she was unable to
identify facts that suggested the defendants were corrupt, or lied, or made any
misrepresentations or breached any licenses in making the documentary which would
prevent them from obtaining insurance, she stated that she “wrote things that were
possibly facts.”
[104] Grewal’s concerns with the use of material from The Room or other sources in the
documentary were inconsistent. She stated that “[a]ll materials and appearance of
everyone on camera especially the main subjects would have to provide releases,” but in
cross-examination she acknowledged that if you are using other peoples’ material you
need to be sure it is “fair dealing,” or get permission. In her second affidavit she stated
that “[a]ny portion of this project deemed fair use could be included as long as the reason
for the fair use is legal and standard and not be[ing] secured under false or fraudulent
ways of misrepresentations by the filmmakers to those rightsholders.” Of course, these
are legal conclusions, which are for the court to make, as was her statement in her second
affidavit that “common law, statutory and constitutional rights of privacy may have been
violated.” She made many other statements of law in her affidavits, which were
inadmissible, and, in some circumstances, absurd, as came out in the cross-examination.
To give just one example, she was asked about her assertion that the injunction was
“lawful,” but then admitted that she had not read Koehnen J.’s decision overturning it –
she had only read sections of it, or a summary of it.
[105] Much of Grewal’s evidence seemed to simply assert a bias against Room Full of Spoons
and the defendants. She stated that in her view the documentary is too long and that she
found portions of it “very uncomfortable to watch.” She asserted that it is not a
documentary but more like a feature film because, she said, it is a “fan film,” with Harper
“boasting,” and that at certain points she said it seemed to be “acted” and involved “oncamera stalking of a celebrity-type personality.” When confronted on where there was
stalking in the film, as she had asserted, Grewal could only say that was what she “felt,”
claiming that the defendants kept trying to film Wiseau when he did not want to be talked
to or filmed, and that it “looked uncomfortable.” As to her reference to “factual
inaccuracies,” Grewal simply said that there were parts of the film she “couldn’t
support.”
[106] When given a 2-hour adjournment to view the film again and identify passages that
would identify her various criticisms, Grewal referred to the scene in the documentary
where the defendants came across Wiseau by chance in Times Square, when Wiseau
apparently did not want to be filmed. However, there is no chasing or stalking shown
because, as the defendants testified, that did not occur. Like Spicuzza, Grewal stated that
Harper should have been more “respectful,” and she disliked the fact that the

2020 ONSC 2504 (CanLII)

[102] Following a brief cross-examination on her qualifications, in light of my earlier ruling on
the admissibility of Spicuzza’s evidence, counsel for the defendants agreed she could
provide expert opinion evidence on the questions she articulated on the same basis.

 22

[107] It was never explained why a documentary could not have the components and biases that
Grewal described, nor did she define what a documentary is, other than to agree, in crossexamination, that the Academy of Motion Pictures defines a documentary as a nonfiction film, with the emphasis on fact and not fiction.
[108] On the other hand, Grewal agreed that the comments on The Room were interesting and
that portions of the documentary were investigative. When she was asked whether the
documentary criticizes The Room she said, “Doesn’t everybody?” Assuming all the
licensing and copyright issues and “factual inaccuracies” could be cleared up, Grewal
conceded that she could market the film. Curiously, when asked if the documentary
might have benefitted from being released before The Disaster Artist she said she did not
know if that would have been allowed. She stated that the makers of The Disaster Artist
would likely do “anything” to stop the release of Room Full of Spoons in advance of the
release of The Disaster Artist.
[109] Grewal acknowledged that she was familiar with Gravitas, and that while it is “not Sony”
it is a film distribution company that includes documentaries, and that it could cover a
film like Room Full of Spoons on its own errors and omissions insurance. She suggested
that Gravitas might have required a number of revisions as well as other finalizing
touches before it would be ready for distribution in 2017; however, she agreed that such
work could be done relatively quickly.
Ian Berry
[110] Ian Berry (“Berry”) is an American filmmaker who, in 2011 with Tommy Wiseau,
produced a web-series called Tommy Explains It All and a short film entitled Rico The
Destructor. His affidavit describes his dealings with Harper in 2014 when, at Harper’s
request, he granted permission for Harper to use material from Tommy Explains It All.
He said he did this after Harper explained that his documentary would be “a love letter to
The Room and Tommy Wiseau.” Berry sent Harper a USB drive containing both Tommy
Explains It All and Rico The Destructor.
[111] In 2017, Berry said he “became aware that Room Full of Spoons wasn’t the ‘love letter’
Mr. Harper had led me to believe” but instead “seemed to me to be disparaging with
regards to Mr. Wiseau and The Room.” He also became aware that the documentary
included some clips from Rico The Destructor. Although he had not seen Room Full of
Spoons (he saw it for the first time the night before he testified at the trial), Berry
corresponded with Harper about it. Berry requested that his material be removed from
the documentary and he sought to “void” his contract with Harper. He briefly retained a
lawyer in Toronto, Mark Hayes, to pursue this. But he has taken no legal steps against
Harper or the other defendants. It is not clear how many clips from Berry’s work are in
Room Full of Spoons, but Berry said it was somewhere between 4 and 10.

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documentary goes from being about The Room to being about Tommy Wiseau – but she
could not explain why that made it any less of a documentary.

 23

[113] Berry was also questioned on whether Room Full of Spoons was a documentary, and said
that a documentary can be many things as it is a wide category, and can have speculation,
innuendo and even fiction in it.
Tommy Wiseau
[114] Tommy Wiseau filed two affidavits, a Declaration and lengthy statements. Although not
formally sworn, Wiseau asserted that the statements filed were sworn, and I have treated
them that way.
[115] Wiseau’s evidence was difficult to follow. His first “Statement of Facts” includes a
proposed licence agreement with the defendants’ entity, Rockhaven Pictures, some
correspondence with Harper, and many still photos from The Room reflecting clips and
still photos said to be owned by the plaintiffs used in the documentary. He made
assertions of illegal use of copyrighted material, unlawful downloading, malicious
representation of the original materials and the inclusion of “unauthorized biographical
data” against the defendants, among other things. In his second “Statement of Facts”
prepared just a month before the trial, Wiseau asserted, among other things, that the
defendants had violated copyright and “tampered” with the plaintiffs’ property. He
complained that “the information presented in Room Full of Spoons gives a negative
impression of him and The Room,” and asserted that the defendants “pursued” him
“against his will, mocked his ethnic heritage and used expletives to refer to him.”
[116] Wiseau’s first affidavit describes the making of The Room and tells us that it has become
a “global phenomenon with millions of fans worldwide and thousands of screenings
internationally.” Wiseau himself has attended over 250 screenings. In cross-examination
Wiseau said that he thinks he is “famous.”
[117] Wiseau disagreed with the description of Room Full of Spoons as a documentary, despite
the fact that it is pleaded to be one in the statement of claim. He said it is a movie, not a
documentary, though he did not explain why.
[118] Although he pleaded in his statement of claim that there is a written assignment of the
copyright in his works to Wiseau Studio LLC, he agreed he has never produced that
document. He agreed that he had only produced a portion of the first page of the
agreement assigning his life story rights to S/Z Books. He refused to say how much he
was paid for his “life rights” or for The Disaster Artist, stating that this information was
covered by a confidentiality clause.

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[112] In cross-examination, Berry agreed that his permission to use clips from Tommy Explains
It All did not include retaining any editorial rights, nor any right of termination. He also
acknowledged that he found out about these things from Wiseau who called him about it.
He also agreed that he hired Mr. Hayes at Wiseau’s suggestion, as Hayes was, at the time,
representing Wiseau.

 24

[120] Wiseau gave lengthy self-serving answers in re-examination. He claimed, as he did in his
written evidence, that the defendants had “ripped” the clips of The Room from a Blu-ray
disc and tried to tamper with it. He asserted that “ripping” the film from a Blu-ray disc
was hurting his product, that the clips were not presented at the highest quality, and that
what he thought was going to be clips used for one minute and a trailer turned out to be 7
minutes, for which he feels he should have been paid.
[121] When questioned on the personal information about his birthplace, birthdate, and his
original name in Poland, Wiseau’s lawyer objected. However, on confirming that the
plaintiffs’ complaint was not that the information was incorrect but simply that it was
included, I did not require Wiseau to confirm that information.
[122] Wiseau confirmed that he has worked with Spicuzza, that they met socially, and that she
had volunteered to help him with the case.
Synthian Sharp
[123] Synthian Sharp is a self-described documentarian that has made many documentaries,
some of which are feature length, and speaks on the subject at the University of
California – Irvine twice a year. Sharp provided a six and a half page letter presenting his
views on what a constitutes a documentary. He confirmed that he wrote his letter at
Spicuzza’s request. He knew her from working on a film together. Sharp knew nothing
about the proceedings and has not met Wiseau. He said he watched the documentary and
was asked for his reaction, although he agreed that he might have assumed that the
dispute had something to do with the rights of an artist. Counsel for the defendants did
not object to his evidence, on the same basis as was done with Grewal’s evidence.
[124] Sharp’s letter concludes that Room Full of Spoons is “entertainment reporting…an
‘exposé’ with a declared effort toward character assassination.” However, in crossexamination his evidence was more nuanced.
[125] Sharp stated that documentarians might have a bias, unlike journalists who are, in Sharp’s
view, supposed to remain unbiased. Documentarians are trying to compel you to a point
of view, he said. With respect to “fair use,” Sharp stated that in the film industry one’s
presentation must not be “reselling the original product in a slightly altered form” but
rather must “fundamentally change the presentation.”
[126] Sharp’s letter criticized Room Full of Spoons for being about the creator, Harper, and his
journey in exploring the making of The Room and investigating Tommy Wiseau, which
he described as “malicious.” However, in cross-examination Sharp described Room Full
of Spoons as a “compelling documentary” that was “well done.” He said that watching
Room Full of Spoons raised in him deep suspicions about Tommy Wiseau. Although he
still seemed to be critical of Harper for telling the story from his own perspective, Sharp

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[119] Much of Wiseau’s testimony was simply assertions without more. He avoided answering
many questions and complained about the process.

 acknowledged that this has become a documentary technique in which the narrator
becomes the main character. He cited the well-known documentaries by Michael Moore
as examples. Sharp said that watching Room Full of Spoons made him want to watch The
Room, which he had not seen when he testified. Sharp stated that while some people will
not want to see The Room after viewing the documentary, many others will want to see it.
He also agreed that a documentary commenting on another work is unlikely to be as
popular as the original work.
[127] On the other hand, some of Sharp’s evidence contained unhelpful attacks on the
defendants’ conduct, describing some of the script as “invasive commentary” and taking
issue with whether the defendants were “invited” to New York by Wiseau.
[128] In response to questions about the amount of material from The Room used in the
documentary, Sharp said he might have used more than the approximately 7 minutes used
by the defendants if he had been making the documentary.
[129] Overall, Sharp provided information about the industry view of documentary films, of
which he clearly has much experience, and in that regard his opinions on Room Full of
Spoons and its place in that genre were helpful to the court.
The Defendants’ Evidence
Towns, Forero McGrath and Racicot
[130] All of the defendants submitted affidavits and were cross-examined at the trial. Harper
submitted a lengthy affidavit describing, among other things, the making of Room Full of
Spoons, the defendants’ interactions with Wiseau, his lawyers, and others, their
investigation of Wiseau’s background, and the impact of the injunction. Much of this has
not been contested in any way by the plaintiffs and is summarized above.
[131] The defendants Towns, Racicot and Forero McGrath submitted very brief affidavits
essentially agreeing with Harper’s evidence. The cross-examination of these witnesses
focused on their role in producing Room Full of Spoons. Towns, for example, stated that
he became involved in 2015, investing $5,000 initially and bringing his lengthy
background in film production to the project. He confirmed that the defendants did not
seek legal advice on the issue of using clips from The Room, and they went ahead without
an agreement from Wiseau because they believed the use of the clips was covered by fair
dealing.
[132] Forero McGrath was questioned on his role as an editor and on using images of Tommy
Wiseau, including on tickets for a screening of Room Full of Spoons in Ottawa and on the
Kickstarter campaign. The defendants did this without seeking legal advice. They did
their own research on copyright and fair dealing. Forero McGrath confirmed that the only
impediment to signing the distribution agreement was the injunction and the continuing
lawsuit. He stated that the project was complete and ready to hit the theatres by January
2016, although he agreed that a distributor might suggest additional edits.

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25

 [133] Racicot was the cinematographer, or cameraman. He agreed the project evolved from its
original objective of documenting the phenomenon of The Room and its fans to also
include Tommy Wiseau, who he described as being synonymous with The Room and part
of the phenomenon. The expanded scope was the result of a group decision as the project
progressed over several years. Racicot was cross-examined specifically on the encounter
with Wiseau in New York City and the filming of him there – which did not show
Wiseau moving away or being chased. As Racicot said, they were surprised to see
Wiseau there and just said a brief hello to him before they walked away. When Wiseau
was spotted Racicot simply turned the camera on him – for perhaps a total of 15 seconds.
Wiseau may not have even been aware that he had been filmed, Racicot said.
Richard Harper
[134] Harper was cross-examined at length. This included questioning on his discovery of, and
“obsession” with, The Room, and his interactions with Wiseau and Sestero. He said they
were unable to interview Sestero because he said he was under contract with Franco and
because, “as a friend of Tommy’s” he was loyal to him. Harper agreed that he was
disappointed that Wiseau chose not to participate in the documentary when they were in
New York City. He was challenged on whether they had chased Wiseau when he was in
Times Square, which Harper denied.
[135] When questioned on the evolution of the documentary, Harper agreed that the film had to
change because Wiseau did not wish to participate. He denied that the purpose of making
the film was to make money; he said they hoped not to lose money, and that the primary
focus was to make a “fantastic movie.”
[136] Harper confirmed that the defendants were of the view that they did not need Wiseau’s
permission to use clips of The Room. They did some research on fair dealing and fair use,
spoke to some lawyer friends and felt they had a decent understanding of the law. Harper
said they could not afford lawyers. Nevertheless, he agreed that they tried to reach an
agreement with Wiseau because it is “always better” to have an agreement.
[137] Harper stated that in one of his first discussions with Wiseau he had said he would charge
$500 for use of 3 minutes of The Room, but then sent an invoice for $5,000. Later,
Wiseau said he would give the defendants a “student discount,” all of which was
confusing. Harper said he was willing to entertain Wiseau’s ideas, and wanted to respect
his wishes, but that he kept coming up with new demands. For example, Wiseau
demanded that it be edited to have “more positivity by at least 60 percent,” or to make it
shorter, and that he simply wanted it to be an advertisement for The Room. Harper and
the defendants felt Wiseau was deliberately making unreasonable demands to drag things
out, making it impossible to continue to negotiate with him.
[138] Harper agreed that they obtained the clips from The Room from a Blue-ray disc, and that
this would have been done by Forero McGrath. Harper disagreed that they had to break
digital locks and disagreed with Wiseau’s assertion that the clips used were of a “lesser

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26

 quality” that did not reflect Wiseau’s work. Harper did not agree with the suggestion that
“7 minutes is a lot,” nor did he agree that they had used “iconic scenes” as in Harper’s
view “every scene is iconic.” Although Harper agreed that he could have made the film
without using clips, it would have been “a different movie,” and not as good a movie. In
Harper’s view, the use of images from The Room and photos of Wiseau on Kickstarter –
such as a picture of the billboard promoting The Room that Wiseau paid to have up in
Hollywood for years – or on tickets for a screening, simply reflected what the project was
about.
[139] Harper was also cross-examined on the dealings with Gravitas, errors and omissions
insurance and the potential for making additional edits to the film and meeting other
deliverables in the agreement before its release. With respect to what might have been
done after the injunction was lifted, Harper said they still had the pending civil claim and
there were “threats everywhere” which would have made it extremely difficult to release
or even to show it at film festivals. The defendants continue to be in touch with Gravitas,
but Harper said the company is not interested in the film until the legal issues are
resolved. This action by Wiseau, Harper said, has therefore made it impossible to
successfully release Room Full of Spoons while the suit continues.
[140] Harper disagreed that the documentary is disrespectful of Wiseau, noting that it
celebrates his movie, and says a lot of very nice things about him. Harper also said that
he learned things during the course of his research that could be very hurtful and
damaging to Wiseau that he intentionally left out of the documentary. Harper said that he
tried to be very balanced, noting that only about 6 minutes of the film is on Tommy’s
personal life. Harper took offence to the suggestion that he was angry and wanted to hurt
Wiseau, saying that he did not spend 5 years making a film to hurt Wiseau, and that if he
had wanted to do so there is much more that he could have reported.
[141] Harper was an impressive witness. He answered questions forthrightly and directly. He
was cross-examined at length and his evidence was consistent with his affidavit and the
written record. I had the same impression of each of the defendants.
Doug Bania
[142] The defendants called an expert in calculating intellectual property damages, Doug Bania
(“Bania”). Bania is an intellectual property consultant in California. He has been
qualified as an expert witness in 65 cases in the United States dealing with intellectual
property issues including damages. He has a background as an independent film
producer between 2000 and 2003, and has published widely on the topic of valuation,
damages and licensing of intellectual property damages. He was retained to provide an
opinion on the damages claimed by the plaintiffs, and on the revenue the defendants lost
as a result of their inability to exploit Room Full of Spoons as alleged in the counterclaim.
[143] Bania was unable to provide any opinion on the plaintiffs’ alleged damages due to their
failure to produce relevant documents. I accept this conclusion. In addition to the

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27

 plaintiffs’ failure to produce the assignment of copyright in The Room to Wiseau Studio
LLC (which is pleaded in the statement of claim), they have also failed to provide any
information about revenues from The Room or its related merchandise, and they have
failed to provide the full agreement involving Wiseau’s sale of his “life rights” to S/Z
Books relating to Franco’s production of The Disaster Artist. The only mention of any
financial benefits to the plaintiffs in the record is the comment by Franco at TIFF as to
what he thinks the film makes each year, quoted earlier in these Reasons. That is hardly
reliable evidence on which to base a damage claim.
[144] The plaintiffs have, therefore, not produced any financial information whatsoever on
which to conclude that they have suffered, or will suffer, any damages from the release of
Room Full of Spoons. Indeed, it is quite possible, as suggested by the plaintiffs’ expert
Synthian Sharp, that Room Full of Spoons might create more interest in The Room and,
should it be released in the future, the plaintiffs may well benefit from it.
[145] Turning to the defendants’ damages, Bania reviewed Google Trends online data relating
to the interest or “buzz” in The Disaster Artist and The Room from January 2017 to
December 2017, as well as available data for The Room since 2004. (It was released in
June 2003 but Google Trends data only goes back to January 2004). Bania concluded that
The Room benefited considerably from the release of The Disaster Artist, especially
following the release of The Disaster Artist in December 2017. Room Full of Spoons, on
the other hand, attracted no meaningful interest, or “buzz,” on line between January 17,
2017 and March 8, 2018 (when The Disaster Artist ceased being in theatres). But, as
Bania notes, the injunction had forced the defendants to take down their social media
promoting Room Full of Spoons, which explains why it had no “buzz.” In crossexamination Bania commented on the “cloud on title” from this action, and confirmed
that this would explain why the documentary has still not been released.
[146] In order to consider whether, and to what extent, Room Full of Spoons would have
benefitted from The Disaster Artist had it been released in 2017 prior to the release of
The Disaster Artist, Bania considered three comparable situations in which
documentaries had been made about feature films: (1) Best Worst Movie and Troll 2; (2)
Jodorowsky’s Dune and Dune; and (3) American Movie and Coven. American Movie
grossed over $1.165M, and ranks 183rd on a list of all films with the documentary genre
label. Jodorowsky’s Dune grossed over $647,000 and Best Worst Movie grossed almost
$110,000. These figures are all in United States dollars.
[147] Due to the success of The Disaster Artist, including its Golden Globe Award and
nomination for an Academy Award, Bania believes that the range of comparables is a
conservative indication of the revenue Room Full of Spoons might have achieved. In his
view “Room Full of Spoons would likely be at the high end of the range of revenues
achieved by the comparable documentary films, or an amount around US$1.1 million”
(using this conservative estimate).

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28

 29

[149] Bania’s analysis was not seriously challenged on cross-examination. Indeed, some of it
focused on the ongoing success or “buzz” associated with The Room, but this only adds
to the “buzz” that Room Full of Spoons might have experienced since, as Bania also
stated, “watching one makes you want to watch the other.”
Issues
[150] The statement of claim raises many causes of action; however, some have either been
abandoned or not pressed at trial. These include claims by the plaintiffs for breach of
contract, fraudulent misrepresentation and trademark violations. Consequently, the issues
that need to be addressed are as follows:
(a)

Breach of copyright, including whether the fair dealing exception applies;

(b)

Breach of Wiseau’s moral rights under the Copyright Act;

(c)

Misappropriation of personality;

(d)

Passing off;

(e)

Intrusion upon seclusion;

(f)

The defendants’ counterclaim; and

(g)

Damages.

Analysis
Standing: Who owns the Copyright?
[151] The starting point of a copyright case is to determine who owns the copyright. Section
13(1) of the Copyright Act provides that “the author of a work shall be the first owner of
the copyright therein.” Copyright may be assigned to another, but s. 13(4) requires an
assignment, whether wholly or partially, to be in writing.
[152] In this case, the statement of claim states that the plaintiff Wiseau Studio LLC is “the
copyright owner in the plaintiffs’ works at issue.” It also states that Tommy Wiseau
“assigned his rights, title and interest in The Room and in all related works…to Wiseau
Studio LLC.” However, the defendants have denied this assignment to Wiseau Studio

2020 ONSC 2504 (CanLII)

[148] Bania also considered the draft agreement with Gravitas, and its fees totaling
approximately 40% when distribution and marketing expenses are included, and
concludes that Room Full of Spoons Inc. would have achieved earnings of US$660,000
from its production of Room Full of Spoons.

 30

[153] The statement of claim attaches, at Appendix “A”, copyright registration certificates,
which state that the owner of the copyright is “Wiseau-Films.” These certificates have not
been made exhibits or otherwise proven at the trial, but they do not establish that Wiseau
Studio LLC has been assigned the copyright, as that entity is not mentioned. “WiseauFilms,” on the other hand, seems to be a name under which Tommy Wiseau does
business, at least according to the title of proceedings on the front of the statement of
claim.
[154] Accordingly, there is no evidence of an assignment of copyright to the plaintiff Wiseau
Studio LLC, and I agree that the corporation’s claim for copyright infringement should
fail on that basis. Further, given Wiseau’s admission that he assigned copyright to
another entity (Wiseau Studio LLC), his claim, on its face, should also fail on this basis.
This seems an odd result, that the claim should fail because the creator of the work – and
Tommy Wiseau is identified as the author of the work on the registration – has pleaded
he has assigned the copyright to the other plaintiff but has failed to prove it. However, s.
34.1 of the Copyright Act may come to the plaintiffs’ aid. It provides:
In any civil proceedings taken under this Act in which the defendant puts in issue
either the existence of the copyright or the title of the plaintiff to it,
(a) copyright shall be presumed, unless the contrary is proved, to subsist in
the work, performer’s performance, sound recording or communication
signal, as the case may be; and
(b) the author, performer, maker or broadcaster, as the case may be, shall,
unless the contrary is proved, be presumed to be the owner of the
copyright.
[155] In this case, the defendants have put the existence of the copyright, and title to it, in issue.
They argue that the evidence shows that there are multiple authors of the film, as
demonstrated in the documentary in which, for example, Sandy Schklair claims to be the
director, and it is asserted that many scenes were essentially improvised. There is also an
absence of any evidence of assignments from actors, the composer, film editor or the
crew who provided services in creating The Room.
[156] Statements in the documentary are not proof, however, of authorship, and it seems to me
overly technical and to put too high a burden on a plaintiff if he or she must provide the
degree of evidence asserted by the defendants. It would appear that this is what s. 34.1 is
meant to avoid. Indeed, where the defendant has put copyright in issue, and in the
absence of an assignment, subsection 34.1(2)(c) provides that “if, on a cinematographic
work, a name purporting to be that of the maker of the cinematographic work appears in
the usual manner, the person so named shall, unless the contrary is proved, be presumed
to be the maker of the cinematographic work.” This places a burden on the defendants to

2020 ONSC 2504 (CanLII)

LLC in their statement of defence, putting a burden on the plaintiffs to prove the
assignment.

 31

[157] 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 light of my conclusions below,
however, that the plaintiffs’ case fails on other grounds, in the end little turns on this
issue.
[158] It is appropriate here to also address the defendants’ argument that Wiseau lacks standing
to assert any of the causes of action because he appears to have sold his “life rights” to
James Franco, as he stated publicly at TIFF in September 2017 following the screening of
The Disaster Artist. Wiseau has produced a portion of a letter agreement with an entity
called S/Z Books, which appears to deal with such a sale, although he has refused to
produce the entire document. While it would not be unreasonable to infer that production
of the full document would not help Wiseau’s case, the evidence on this issue is very
limited and I am not prepared to find on this basis that Wiseau does not have standing to
assert claims on his own behalf, as he has done in this case.
Has Copyright been Infringed?
Substantial Taking
[159] Section 3 of the Copyright Act grants an owner “the sole right to produce or reproduce
the work or any substantial part thereof.” Not every copying of a portion of a work,
therefore, constitutes an infringement. To make out a claim of copyright infringement,
the plaintiff must first demonstrate that the defendant’s use of copyrighted material
constitutes a “substantial” taking from the copyrighted work. The taking must be
substantial because the purpose of the Copyright Act is to strike a balance between
“promoting the public interest in the encouragement and dissemination of works of the
arts and intellect and obtaining a just reward for the creator:” Galerie d’Art du Petit
Champlain inc. c. Theberge, 2002 SCC 34, [2002] 2 S.C.R. 336 (“Theberge”), at para.
30. In Cinar, the Supreme Court offered this guidance on substantial taking, at paras. 26
and 36:
[26] A substantial part of a work is a flexible notion. It is a matter of fact and
degree. "Whether a part is substantial must be decided by its quality rather than its

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rebut the presumption: Robinson c. Films Cinar inc., 2013 SCC 73, [2013] 3 S.C.R. 1168
(“Cinar”), at para. 21.

 quantity": Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964] 1 All
E.R. 465 (H.L.), at p. 481, per Lord Pearce. What constitutes a substantial part is
determined in relation to the originality of the work that warrants the protection of
the Copyright Act. As a general proposition, a substantial part of a work is a part
of the work that represents a substantial portion of the author's skill and judgment
expressed therein.
….
[36] As a general matter, it is important to not conduct the substantiality analysis
by dealing with the copied features piecemeal: Designers Guild, at p. 705, per
Lord Hoffman. ... Rather, the cumulative effect of the features copied from the
work must be considered, to determine whether those features amount to a
substantial part of Robinson's skill and judgment expressed in his work as a
whole.
[160] The Supreme Court noted that while copyright seeks to ensure that the creator reaps the
benefits of her artistic efforts, it does not protect every “particle” of an original work, or
“any little piece the taking of which cannot affect the value of [the] work as a whole:”
Cinar, at para. 25, quoting D. Vaver, Intellectual Property Law: Copyright, Patents,
Trade-marks, 2nd ed. (Toronto: Irwin Law, 2011) at p. 182. This is consistent with s.
27(2) of the Copyright Act, which provides that it is an infringement to “distribute to
such an extent as to affect prejudicially the owner of the copyright.”
[161] The goal, therefore, of the requirement that there be a “substantial” infringement is to
ensure that a balance is maintained between protecting the skill and judgment exercised
by authors in the expression of their ideas, and “leaving ideas and elements from the
public domain free for all to draw upon:” Cinar, at para. 28. In Maltz v. Witterick, 2016
FC 524, F.C.J. No. 484 (“Maltz”), Boswell J. stated, at para. 38:
In determining whether a substantial part of the Applicants’ work has been taken,
the quality and quantity of material taken should be considered along with the
importance and originality of that material. The extent to which the infringement
has adversely affected the Applicants’ activities and diminished the value of their
copyright should also be considered. Whether the material taken is properly the
subject of copyright, whether the Respondents intentionally took the material to
save time and effort, and whether the material was used in the same or similar
fashion as it was in the copyrighted work, are also questions to address in a
substantiality analysis.
[162] Similarly, in U & R Tax Services Ltd. v. H & R Block Canada Inc., [1995] F.C.J. No. 962
(Fed. Ct.), Richard J. stated, at para. 35 (internal citations omitted):
In order to find copyright infringement, a plaintiff must prove copying of the
work or a substantial part thereof and access to the copyright protected work. In

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32

 this instance, the defendant has admitted to copying a portion of U&R's form and
the enquiry is therefore directed to whether the copying was "substantial" within
the meaning given to that the term by the courts: "[w] hat constitutes a
"substantial part" is a question of fact and, in this respect, the courts have given
more emphasis on the quality of what was taken from the original work rather
than the quantity." Some of the matters that have been considered by Courts in the
past include:
(a) the quality and quantity of the material taken;
(b) the extent to which the defendant's use adversely affects the plaintiff's
activities and diminishes the value of the plaintiff's copyright;
(c) whether the material taken is the proper subject matter of a copyright;
(d) whether the defendant intentionally appropriated the plaintiff's work to
save time and effort; and
(e) whether the material taken is used in the same or a similar fashion as
the plaintiff's.
[163] Cinar and Maltz involved fictional works and the extent to which they may have been, or
were, based on previous works but copied and effectively presented as the work of the
alleged copier. U & R Tax Services dealt with a business competitor copying a form. This
case is quite different. Wiseau’s ideas are not copied and passed off as the defendants’
work. But there is no question that clips from The Room are used in Room Full of Spoons
– in fact, that is what much of the documentary is about. Seven minutes of content from
The Room, which is 99 minutes long, was used in the 109 minute long documentary.
There are 69 separate clips used, and the longest clip is 21 seconds. This is not a trivial
amount of The Room.
[164] 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.
[165] 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, which I address below.

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33

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[166] In his closing submissions, counsel for the plaintiffs made an additional argument for
infringement. He submitted that the defendants, in “ripping” clips from The Room from a
Blu-ray disc, had circumvented a “technological protection measure” contrary to s.
41.1(1) of the Copyright Act and had thereby also infringed the plaintiffs’ copyright as
provided in s. 41.1(2). This was not pleaded in the statement of claim and is, in my view,
a distinct cause of action from copyright infringement. Although s. 41.1(2) provides that
“[t]he owner of the copyright in a work” in respect of which a technological protection
measure has been contravened is “entitled to all remedies…that are or may be conferred
by law for the infringement of copyright,” this is a statutory measure introduced to
address the use of digital locks, and is not simply another form of copyright infringement.
It should have been pleaded so that the defendants could have had an opportunity to
address it in the evidence, including whether a technological protection measure was
circumvented, and to raise any defences to circumvention.
[167] There was, in any event, little evidence on this point. Wiseau simply asserted that the
defendants had “ripped” clips from a Blu-ray, without more. In cross-examination,
Harper confirmed that they obtained the clips from a Blu-ray disc, and that Forero
McGrath would have done that. Forero McGrath was not questioned about this at all, and
it was only put to Harper that a Blu-ray disc has a digital lock, which Harper denied. He
said he did not even know what a digital lock was, that it was quite easy to copy from a
Blu-ray disc, and that even he could to it with his limited editing skills. Accordingly,
there is no evidentiary bases for this claim as there is no evidence of any technological
protection measure existing, or being circumvented, and I dismiss this argument.
Fair Dealing
[168] Fair dealing is often described as a defence to copyright infringement as the onus lies on
the defendant to establish that the use of the material constitutes fair dealing. However,
the Supreme Court has noted that it is better described as an exception to infringement
and a “user’s right” rather than a defence. It is intended to balance the rights of creators
and innovators to disseminate and profit from their work with the public interest in
receiving, debating and benefitting from creativity and innovation: Theberge, at paras.
30-32. It must therefore be given a generous scope. As McLachlin C.J.C. stated in CCH
at para. 48:
Before reviewing the scope of the fair dealing exception under the Copyright Act,
it is important to clarify some general considerations about exceptions to
copyright infringement. Procedurally, a defendant is required to prove that his or
her dealing with a work has been fair; however, the fair dealing exception is
perhaps more properly understood as an integral part of the Copyright Act than
simply a defence. Any act falling within the fair dealing exception will not be an
infringement of copyright. The fair dealing exception, like other exceptions in
the Copyright Act, is a user’s right. In order to maintain the proper balance

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Technological Protection Measures

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[169]

The fair dealing exception is contained in sections 29, 29.1 and 29.2 of the Copyright
Act:
29 Fair dealing for the purpose of research, private study, education, parody or
satire does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does not infringe
copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if
the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

[170] The attribution requirements of s. 29 are clearly met in this case. It is clear throughout,
and at the end, of Room Full of Spoons, what aspects of the documentary are drawn from
The Room. To the extent that still photos are used, these are either clear to the viewer as
Wiseau’s work or, further to Koehnen J.’s decision at paras. 95-99 can be adequately
attributed in the end credits. The plaintiffs did not make an issue of this at trial.
[171] Aside from those attribution obligations, the test for fair dealing requires the defendant to
prove that (a) the dealing was for one of the allowable purposes listed in Copyright Act,

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between the rights of a copyright owner and users’ interests, it must not be
interpreted restrictively. As Professor Vaver, supra, has explained, at p.
171: “User rights are not just loopholes. Both owner rights and user rights should
therefore be given the fair and balanced reading that befits remedial legislation.”

 and (b) the dealing was fair: CCH, at para. 50. In considering the purposes, the court
must give them “a large and liberal interpretation in order to ensure that users’ rights are
not unduly constrained,” and even “research is not limited to non-commercial or private
contexts:” CCH, at para. 51. Whether the dealing is “fair” is a fact-specific inquiry which
may be considered having regard to the following factors, although they may or may not
all apply to a specific case: (1) the purpose of the dealing; (2) the character of the dealing;
(3) the 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: CCH, at para. 53. See also: Society of
Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36,
[2012] 2 S.C.R. 326 (“SOCAN 2012”), at paras. 14, 15 and 27.
Was the Use for an Allowable Purpose under the Copyright Act?
[172] The defendants rely on both s. 29.1 and s. 29.2 of the Copyright Act, submitting that the
purpose of Room Full of Spoons is to critique and review The Room. The defendants also
submit that the documentary constitutes news reporting as it informs viewers of facts
about the film and Wiseau. The dealing is therefore for an allowable purpose under s.
29.1. In SOCAN 2012, at para. 27, the Supreme Court observed, “CCH created a
relatively low threshold for the first step so that the analytical heavy-hitting is done in
determining whether the dealing was fair.” The first step is easily met in this case.
[173] The documentary reports on and discusses the social phenomenon of The Room and its
creator. Room Full of Spoons reviews the making of The Room, including discussing
specific aspects and scenes within the film. It contains interviews with fans, actors and
others involved in the making of the film. It includes comments from critics, professors
and others about their reaction to the film and its attraction to people. It discusses scenes,
dialogue, acting, plot development, direction, improvisation, editing, and motifs used in
the film. Room Full of Spoons also investigates and reports on how The Room became a
cult classic. For example, it interviews the fan who identified the photograph of a spoon
in explaining why people throw spoons at the screen, which is accompanied by shots of
fans doing just that. The documentary is also about Tommy Wiseau, who is inseparable
from The Room, and who acknowledges he is somewhat famous because of it. The
defendants investigate and report on Wiseau’s background in Room Full of Spoons,
which may account, in part, for why the Huffington Post described the documentary as “a
very impressive piece of reporting.”
[174] The plaintiffs take issue with the purpose of Room Full of Spoons, asserting that it not a
“proper” documentary but rather a “tabloid-style exposé” or “hit piece” intended to
“prejudice the honour and reputation of Tommy Wiseau.” Ms. Spicuzza testified that the
purpose of documentaries is to “enlighten, educate, procure or promote a cause” and must
be “balanced” and “respectful” of their subjects. I am not sure where this definition
comes from, and in any event I must reject it. As noted earlier, the Academy of Motion
Pictures defines a documentary as a non-fiction film, with the emphasis on fact and not
fiction. The Academy’s definition does not require a documentary to enlighten and
educate, though it is to be expected that most will do so given their emphasis on facts.

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36

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[175] In discussing the phenomenon of The Room and in reporting on information the
defendants uncovered about Wiseau, including his birthplace, age and birth name, and in
conducting interviews with Wiseau’s relatives in Poland where he was born and spent his
childhood, the film engages in news reporting on matters of interest to fans of The Room,
and to others who may be interested in understanding why “the Citizen Kane of bad
movies,” and Tommy Wiseau himself, have attracted such a following.
[176] Whether or not the plaintiffs regard Room Full of Spoons as a “tabloid-style exposé” or a
“hit piece,” or contains facts Wiseau would prefer not be disseminated, has little to do
with whether the first step of fair dealing has been met. Leaving aside the fact that such a
requirement would raise concerns about limits on freedom of expression protected by s.
2(b) of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”), even if
the documentary is not “respectful” of Wiseau in that it denigrates his skills as an actor
and filmmaker, that constitutes criticism and review. There is nothing new about such
criticism of Wiseau and his movie; as Ms. Grewal testified, everybody criticizes The
Room.
[177] If Wiseau does not like how he is portrayed in Room Full of Spoons, his claim may be for
defamation. As the English Court of Appeal stated in Pro Sieben Media AG v. Carlton
UK Television Ltd, [1998] All E.R. (D) 751, “[i]f the fair dealing is for the purpose of
criticism that criticism may be strongly expressed and unbalanced without forfeiting the
fair dealing defence; an author’s remedy for malicious and unjustified criticism lies (if it
lies anywhere) in the law of defamation, not copyright.” However, Wiseau has not sued
for defamation, perhaps because the documentary is on a matter of “public interest,” as
that term is used in defamation law, and he cannot point to any factual errors in the film,
or identify any comment that is not based on fact, making the success of a defamation
claim rather unlikely: see, e.g., WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2
S.C.R. 420, at paras. 28-34. In my view, like the term “fair comment” in defamation law,
“fair dealing” is a misleading term, as it is not determined by the plaintiff’s, or the
court’s, sense that something is “unfair,” but rather is based on a range of factors that
respects the rights of speakers and users to communicate information and views to the
public without undue restrictions.
[178] The plaintiffs also assert that the scenes depicted are the film’s “best, most popular and
most iconic and most recognizable scenes,” suggesting, it seems, that this was not for
purpose of review and criticism, but for some other, perhaps commercial, purpose. While
scenes from The Room used in Room Full of Spoons may well be popular and
recognizable, and even perhaps “iconic,” when asked about this Harper said that “every
scene” in The Room is iconic. Whether or not the documentary reproduced clips from
what the plaintiffs describe as iconic scenes, some parts of the film seem to cry out for

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Nor does it require that such film “procure or promote a cause,” although many
undoubtedly will – indeed Spicuzza conceded that documentaries might have a point of
view.

 38

[179] The issue of selective use of scenes also arose in the English case of Time Warner
Entertainments Co LP v. Channel Four Television Corporation Plc, [1994] E.M.L.R. 1
(“Time Warner”), in which the English Court of Appeal considered the use of some 12
and a half minutes of the film A Clockwork Orange in a 30 minute programme about the
film which was intended to draw attention to the fact that A Clockwork Orange could not
be shown in the United Kingdom. In addressing the argument that the fair dealing
“defence” (as the Court of Appeal called it) should be defeated because “the infringing
excerpts were not fairly representative,” Henry L.J. stated at p. 14:
In my judgment as a matter of law it would not. As Lord Atkin said in a different
context ‘The path of criticism is a public way: The wrongheaded are permitted to
err therein…’ (Ambard v A.-G. for Trinidad and Tobago [1936] AC 322 at 355).
‘Fair dealing’ in its statutory context refers to the true purpose (that is, the good
faith, the intention and the genuineness) of the critical work – is the programme
incorporating the infringing material a genuine piece of criticism or review, or is
it something else, such as an attempt to dress up the infringement of another’s
copyright in the guise of criticism, and so profit unfairly from another’s work?
[180] Accordingly, the plaintiffs’ complaints about the selection of clips does not assist their
position given my finding that Room Full of Spoons, and the use of the plaintiffs’
material in it, had as its purpose review, criticism and news reporting.
[181] In any event, Room Full of Spoons is not as negative as Wiseau asserts, nor would I call it
“incendiary” as Sharp did in his testimony. Even Wiseau seemed to accept at least 40%
of it, based on his rather unusual request to make it “be framed with more positivity by at
least 60 percent.” Many people in the documentary express admiration and gratitude
towards Wiseau, who managed to make a feature film against all odds. Some expressed
affection for him and have no regrets about participating in it. It is acknowledged that the
film has brought people enjoyment and laughter, and that it has touched many who have
watched it. Harper himself concludes the documentary with a message of gratitude
towards The Room.
[182] Harper, the narrator, tells us of his journey as a fan of The Room – an accepted
documentary technique, as Sharp testified – and that had he wished to impugn Wiseau’s
character, he could have included much more “scathing and damaging” personal
information in the documentary, but that was not his objective. Further, if the
documentary were so negative, it would not likely have caused both Sharp and Bania to
become interested in watching The Room.
[183] 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

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attention, such as Wiseau’s poor acting in the “Oh, Hi Mark” scene on the roof, or when
Wiseau yells “Lisa, you’re tearing me apart,” doing his best imitation of James Dean in
the 1955 film classic, Rebel Without a Cause.

 39
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.

[184] Having found that the use of the plaintiffs’ material falls into one of the allowable
purposes for fair dealing, I consider below the six factors set out in CCH to determine
whether that use was “fair,” following the approach of the Supreme Court at paras. 54-60
of CCH.
(i)

Purpose of the dealing

[185] As discussed above, the purpose of the documentary and its use of the plaintiffs’ material
are to provide review, critique and information about The Room, the phenomenon it has
created, and the maker of the film, Tommy Wiseau. This is a permitted purpose. The
copying was not for a commercial purpose but simply to make a documentary; the
defendants had no expectation when making the documentary that they would profit from
it, nor did they appropriate The Room to their benefit. Further, as Sharp said, a
documentary commenting on another work is unlikely to be as popular as the original
work.
(ii)

Character of the dealing

[186] This factor addresses how the copyrighted material is dealt with by the user. In doing so
it may be relevant to consider the “custom or practice” in the particular trade or industry
to determine whether the character of dealing is fair: CCH, at para. 50. In this case, the
copyrighted material was almost invariably accompanied by commentary illustrating or
supporting points made by the narrator or interviewees. This is a common technique in
documentaries and in providing review and criticism, as confirmed by the defendants’
evidence as well as that of Synthian Sharp. As in Time Warner, use of the clips for the
purpose of commentary is a character of dealing that is appropriate and supports a
conclusion that the dealing was “fair.”
(iii)

Amount of the dealing

[187] In considering this factor the court must look at both “the amount of the dealing and the
importance of the work allegedly infringed:” CCH, at para. 56. As McLachlin C.J.C
explained, also at para. 56, “the quantity of the work taken will not be determinative of
fairness, but it can help in the determination. It may be possible to deal fairly with a
whole work [because] there may be no other way to criticize or review certain types of
works such as photographs.” See e.g., Allen v. Toronto Star Newspapers Ltd. (1997), 36
O.R. (3d) 201 (Div. Ct.).
[188] While the documentary’s use of footage from The Room is not trivial, it is also not
excessive. Room Full of Spoons, which is 109 minutes long, uses 7 minutes of footage in

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Was the Dealing “Fair”?

 40

[189] Further, Room Full of Spoons has a number of components and is not just about The
Room or copyrighted material. Rather it informs viewers about the experience and culture
surrounding The Room and its fans, and the making of the film by those involved. It also
provides information about the mysterious Tommy Wiseau. While use of excerpts from
The Room and some other material belonging to the plaintiffs is important to conveying
the messages in the documentary, such use is limited and linked to the objectives of the
documentary. The purpose of the copying was not to replace The Room. To repeat the
evidence of the plaintiffs’ witness, documentary filmmaker Synthian Sharp said he might
have used more clips if he had been making the film. In my view, therefore, the amount
of the plaintiffs’ work is not excessive and does not support a conclusion that the fair
dealing exception does not apply.
(iv)

Alternatives to the dealing

[190] This factor considers whether there is a non-copyrighted equivalent of the work that
could have been used instead of the copyrighted work to achieve the objectives of the
user. In this case, this factor has little application. Room Full of Spoons is about The
Room and Wiseau. There is no alternative to the copyrighted material to make the points
that are made. As Harper stated, without the clips it would have been a different film.
[191] As to the alternative of obtaining licenses to use the plaintiffs’ material, as the facts
demonstrate it was impossible for the defendants to obtain licenses without giving up
editorial control. This is one of the reasons the fair dealing exception exists, as observed
by the Supreme Court of the United States in Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569 (1994) at page 592, where Souter J. noted that “the unlikelihood that creators of
imaginative works will license critical reviews or lampoons of their own productions
removes such uses from the very notion of a potential licensing market. ‘People ask…for
criticism, but they only want praise:’ S. Maugham, Of Human Bondage 241 (Penguin ed.
1992).”
(v)

The nature of the work

[192] This factor considers the nature of the copyrighted work, and the extent to which it has
already been disseminated. The Supreme Court stated at para. 58 of CCH:
If a work has not been published, the dealing may be more fair in that its
reproduction with acknowledgement could lead to a wider public dissemination of
the work — one of the goals of copyright law. If, however, the work in question

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69 short clips from The Room, which is itself 99 minutes in length. This is less than 7%
of the source work and an even smaller percentage of the documentary. The longest clip
is 21 seconds. In Time Warner the use of over 12 minutes of excerpts from A Clockwork
Orange constituted fair dealing in a 30-minute program, even though the excerpts
constituted over 40% of the new work.

 41

[193] In SOCAN 2012, at para. 47, the Supreme Court elaborated that the fifth factor “examines
whether the work is one which should be widely disseminated.” In this case the material
is not confidential, nor is it unpublished; quite the contrary. The Room has been widely
available for close to two decades, plays frequently in cinemas, is available free online
(and there is no evidence that Wiseau has attempted to stop such access), and has been
viewed online by over one million viewers. In my view, this factor also favours the
defendants.
(vi)

Effect of the dealing on the work

[194] As McLachlin C.J.C. explained at para. 59 of CCH, “[i]f the reproduced work is likely to
compete with the market of the original work, this may suggest that the dealing is not
fair.” However, the Court cautioned, also at para. 59, that while “the effect of the dealing
on the market of the original copyright owner is an important factor, it is neither the only
factor nor the most important factor that a court must consider in deciding if the dealing
is fair.”
[195] The plaintiffs allow that the documentary is a derivative work, but submit that it is
nevertheless competitive with The Room. Both plaintiff expert Synthian Sharp and
defence expert Doug Bania commented that the documentary is a competitive product.
Moreover, the documentary covers many of The Room’s most iconic scenes. This may
lead viewers to conclude that having seen the documentary, there is no need to see the
original.
[196] In my view, Room Full of Spoons is not an alternative to The Room and does not replicate
or replace the unique experience of attending a showing of the original work, where
people dress up as characters in the film, throw footballs around, throw spoons, and shout
at the screen. Watching Room Full of Spoons is more likely to create interest in The
Room, than to compete with it. Although both Sharp and Bania agreed that in some
respects the documentary could be a competitive product to The Room, as watching Room
Full of Spoons may cause some people to conclude they do not need to see The Room,
they also both said that the documentary whet their appetite to see The Room.
[197] Further, the fact that festivals and cinemas have been interested in playing double
features of The Room and Room Full of Spoons together suggests that the films
complement, rather than compete, with one another. There is no evidence that the limited
screenings of the documentary have had any negative impact on the The Room. To the
extent there may be a negative impact, which is entirely speculative, it would more likely
be due to the film’s criticism of The Room and Wiseau, and the reporting of facts about
him, but that does not make the dealing with his work unfair.

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was confidential, this may tip the scales towards finding that the dealing was
unfair.

 42
Conclusion on Fair Dealing

Did the Defendants Breach the Plaintiffs’ Moral Rights?
[199] Section 14.1 of the Copyright Act provides that “the author of a work has…the right to
the integrity of the work,” and s. 28.1 provides that “[a]ny act or omission that is contrary
to any of the moral rights…is, in the absence of the author’s …consent, an infringement
of those rights.” The integrity of a work will be infringed, according to s. 28.2(1), “if the
work …is, to the prejudice of its author’s … honour or reputation, (a) distorted, mutilated
or otherwise modified; or (b) used in association with a product, service, cause or
institution.”
[200] I have concluded earlier in these Reasons that Wiseau is the “author” of The Room. He
therefore can assert moral rights.
[201] 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).”
[202] It is common ground that the burden is on the plaintiff to establish a breach of moral
rights. In my view Wiseau has failed to meet that burden, for several reasons.
[203] Moral rights involve a consideration of both the subjective views of the plaintiff and
objective evidence. Moral rights are not, and cannot be, determined solely on the feelings
or opinions of the creator of a work. As Boswell J. noted in Maltz, at para. 49:
The courts have acknowledged that the concept of moral rights has not only a
highly subjective aspect, which in practice only the author can prove, but an
objective one as well. In Prise de parole Inc. v. Guérin Éditeur ltée (1995), 66
C.P.R. (3d) 257 (Fed. T.D.) (appeal dismissed (1996), 73 C.P.R. (3d) 557 (Fed.
C.A.)), Justice Denault stated (at para. 26) that, in addition to an author's own
subjective evidence as to how his or her honour or reputation has been affected:
"the assessment of whether a distortion, mutilation or other modification is
prejudicial to an author's honour or reputation also requires an objective
evaluation of the prejudice based on public or expert opinion."
[204] Other recent decisions have confirmed this approach to moral rights: Thomson v. Afterlife
Network Inc., 2019 FC 545, F.C.J. No. 483, at paras. 39-47; Collett v. Northland Art
Company Canada Inc., 2018 FC 269, F.C.J. No. 349, at para. 22.

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[198] 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.

 [205] Wiseau complains about the defendants “ripping” the clips from a Blu-ray disc, rather
than obtaining clips from his master recording of The Room, but he presented no
evidence as to how the clips used in the documentary distorted or modified his work in a
way that affected his honour or reputation. Only in re-examination did he assert that the
quality was affected, was not to his “high standard” and that he was “very unhappy.” The
quality of the clips was not addressed by any other witnesses, some of whom may have
had expertise to comment on the issue and address whether the clips had been modified
or distorted in any way. In addition, since Wiseau would not license the use of any clips
without acquiring full editorial control, it was impossible for the defendants to gain
access to the master recording of The Room, and so Wiseau might have only himself to
blame for his view that his work was somehow not presented in the way he would have
liked.
[206] I turn now to the second branch of Wiseau’s argument on moral rights that he was
associated with the documentary, which two of his witnesses, Spicuzza and Grewal,
described as a “hit piece” or a “tabloid-style exposé.” Leaving aside the lack of
independence of Spicuzza and Grewal, I fail to see how a documentary that is negative in
tone, if that is the case, infringes moral rights. Wiseau, Spicuzza and Grewal point to no
distortion or modification of Wiseau’s work; rather, they just don’t like the message they
think the documentary sends about Wiseau.
[207] Similarly, although Synthian Sharp expressed reservations about doing business with
Wiseau after viewing the documentary, there is no evidence that this is due to any
distortion or modification of Wiseau’s work. Indeed, Sharp wanted to watch The Room
after viewing Room Full of Spoons. His reservations would have come from the
reporting of facts or comments about Wiseau that are contained in the documentary. In
any event, as Sharp implicitly concluded, Wiseau had nothing to do with Room Full of
Spoons. The documentary makes clear that he did not cooperate, let alone collaborate,
with the defendants in the making of it. The defendants had been promoting it in a trailer,
as “the documentary Mr. Wiseau does not want you to see.”
[208] The brief use of Wiseau’s images on some of the defendants’ marketing materials did not
suggest any endorsement or association either. For example, the defendants made a poster
in which they juxtaposed a picture of the Hollywood billboard promoting The Room,
which featured a photograph of Wiseau in character as Johnny in The Room, with a
similar photograph of Harper. However, the poster had the name of the defendants’
company and was, as Harper said, “kind of goofy” and a parody. This is an apt
description. In my view this would not confuse consumers into thinking that Wiseau was
promoting or endorsing the documentary. In any event, this image was used briefly, at an
early stage of their project, and there is very little evidence of when or how it was used.
Similarly, the plaintiffs took issue with the use of Wiseau’s image, as Johnny, on tickets
to a screening of Room Full of Spoons in Ottawa. However, these did not distort
Wiseau’s image or deceive anyone as the tickets were only received after they had been
purchased. It is not reasonable to conclude that Wiseau is or was associated with the film
based on these materials.

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43

 [209] Furthermore, 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.
Misappropriation of Personality
[210] Wiseau’s claim for misappropriation of personality arises from the use of his image on
the defendants’ social media and on posters, in trailers, on tickets, and on Kickstarter.
Most of this occurred briefly and was removed when Wiseau complained about it. The
material complained of by Wiseau seems to range from images taken from the film, to
photos of Wiseau, fans, and other promotional material some of which does not have his
image at all.
[211] The tort of misappropriation of personality is now well recognized in Canada, but is
relatively undeveloped given the few cases in which it has been raised. It was first
recognized and applied in three cases in the 1970s and 1980s: Krouse v. Chrysler Canada
Ltd. (1974), 1 O.R. (2d) 225 (C.A.) (“Krouse”); Athans v. Canadian Adventure Camps
Ltd. (1977), 17 O.R. (2d) 425 (H.C.J.); and Joseph v. Daniels (1986), 4 B.C.L.R. (2d) 239
(B.C.S.C.). The most recent and thorough discussion of the tort is found in Gould Estate
v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Gen. Div.) (“Gould Estate”),
involving a claim by the estate of the renowned Canadian pianist, Glenn Gould, arising
from the publication of interviews and photographs of him in the 1950s in a book entitled
Glenn Gould: Some Portraits of the Artist as a Young Man.
[212] Although no firm definition has been adopted by the courts, the tort is established where
one’s personality has been appropriated, “amounting to an invasion of his right to exploit
his personality by the use of his image, voice or otherwise with damage to the plaintiff:”
Krouse, at para. 43. However, in Gould Estate, Lederman J. discussed limits to the tort
arising from concerns for the public interest and freedom of expression. He noted that the
similar tort of the “right of publicity” in the United States has been limited to commercial
activity and the exploitation of personality for commercial benefit, and has not been
extended to activity that is newsworthy or is otherwise in the public interest. As Brotman
D.J. stated in Presley v. Russen, 513 F. Supp. 1339 (U.S. Ct. D.N.J. 1981) (“Presley”), at
page 1356, quoted by Lederman J. at para. 16 of Gould Estate:
Thus, the purpose of the portrayal in question must be examined to determine if it
predominantly serves a social function valued by the protection of free speech. If
the portrayal merely serves the purpose of contributing information, which is not

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[213] I agree that similar concerns should limit the application of the tort of misappropriation of
personality. It is well established that the common law, including common law torts,
should accord with the values in the Charter. As McLachlin C.J.C. stated in Grant v.
Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (“Grant”), at para. 44, a case involving
the tort of defamation:
The constitutional status of freedom of expression under the Charter means that
all Canadian laws must conform to it. The common law, though not directly
subject to Charter scrutiny where disputes between private parties are concerned,
may be modified to bring it into harmony with the Charter. As Cory J. put it
in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2
S.C.R. 1130, at para. 97, “Charter values, framed in general terms, should be
weighed against the principles which underlie the common law.
The Charter values will then provide the guidelines for any modification to the
common law which the court feels is necessary.”
[214]

The Charter, of course, protects freedom of expression in s. 2(b), which includes
democratic discourse and participation in community, the pursuit of truth, individual selffulfilment and human flourishing: Grant, at paras. 47-50. These values accord with those
discussed by Brotman D.C.J. in Presley.

[215] Returning to Gould Estate, Lederman J. considered the fact that Gould was a celebrity
and held, at para. 19, that a work in which the celebrity is the subject, such as a
biography, “would not be within the ambit of the tort.” This is in contrast to an activity
in which the celebrity is used to endorse and promote a product for commercial gain.
[216] While Gould – an acknowledged musical genius – and Wiseau may have little in
common, they both have fame and are persons of interest to their followers. Wiseau
travels the world promoting screenings of The Room. He likes being a man of mystery,
not disclosing his origins or age, for example. He is active on social media, including
attacking the defendants and their documentary. Room Full of Spoons is all about this –
it is all about Tommy Wiseau and his work, The Room. Thus, to the limited extent - and
the evidence is that it was very limited - that Wiseau’s image was used in promoting
interest in the documentary, it was simply to convey a message to those with an interest
in Wiseau and The Room that Room Full of Spoons addresses those topics. In this regard,
like the biography of Gould, the use of Wiseau’s image in connection with the
documentary “falls into the protected category and there cannot be said to be any right of
personality …which has been unlawfully appropriated by the defendants:” Gould Estate,
at para. 20.

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false or defamatory, to the public debate of political or social issues or of
providing the free expression of creative talent, which contributes to society's
cultural enrichment, then the portrayal generally will be immune from liability. If,
however, the portrayal functions primarily as a means of commercial exploitation,
then such immunity will not be granted.

 46
[217] In any event, if damages must be shown to make out the tort, as suggested in Krouse,
Wiseau has not led any evidence of damage to his personality or its value.

[218] The plaintiffs’ claim for passing off fails for many of the reasons outlined above. This
tort exists to protect a plaintiff from harm arising from unfair use of their identity, such as
pretending that a product is that of the plaintiff: Ciba-Geigy Canada Ltd. v. Apotex,
[1992] 3 S.C.R. 120, at para. 30 (“Ciba-Geigy”). It also protects consumers from being
misled, and as a result the passing off does not need to be deliberate or intentional. The
test is objective.
[219] The Supreme Court has stated a 3-part test for passing off: (a) the existence of goodwill;
(b) deception of the public due to a misrepresentation; and (c) actual or potential damage
to the plaintiff: Ciba-Geigy, at para. 33.
[220] In this case, the plaintiffs clearly meet the first branch of the tort. I have no doubt that
there is goodwill associated with Wiseau and The Room. He, and the film, have acquired
a cult status and fans around the world, from which the plaintiffs profit.
[221] However, I cannot conclude that there is any misrepresentation by the defendants that
would mislead the public. It is quite clear that Room Full of Spoons is not the work of the
plaintiffs, or in any way endorsed by them. To the extent some images are used, as noted
earlier, they do not misrepresent or mislead fans of The Room, or anyone else, that
Wiseau has authorized, approved, or is in any way the maker of Room Full of Spoons.
[222] The early poster that juxtaposed the image of Wiseau, as Johnny in The Room, used on a
billboard in Hollywood with a similar picture of Harper was raised again here. As
discussed, Harper aptly described this as “goofy” and a parody, and consumers would not
be confused by this into thinking that Wiseau was promoting or endorsing the
documentary. Similarly, the use of Wiseau’s image, as Johnny, on tickets to a screening
of Room Full of Spoons in Ottawa did not deceive anyone for a commercial purpose as
the tickets were only received after they had been purchased.
[223] Finally, there is no evidence of any actual or potential damage to the plaintiffs arising
from the limited use of images of Wiseau or from The Room.
Intrusion Upon Seclusion
[224] The final cause of action advanced by the plaintiffs is the recently recognized invasion of
privacy tort known as “intrusion upon seclusion.” This was recognized by the Court of
Appeal for Ontario in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241. The elements
of this tort were summarized by Sharpe J.A. at paras. 70-71 as follows:

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Passing Off

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One who intentionally intrudes, physically or otherwise, upon the
seclusion of another or his private affairs or concerns, is subject to liability
to the other for invasion of his privacy, if the invasion would be highly
offensive to a reasonable person.
[71] The key features of this cause of action are, first, that the defendant's conduct
must be intentional, within which I would include reckless; second, that the
defendant must have invaded, without lawful justification, the plaintiff's private
affairs or concerns; and third, that a reasonable person would regard the invasion
as highly offensive causing distress, humiliation or anguish. However, proof of
harm to a recognized economic interest is not an element of the cause of action. I
return below to the question of damages, but state here that I believe it important
to emphasize that given the intangible nature of the interest protected, damages
for intrusion upon seclusion will ordinarily be measured by a modest conventional
sum.
[225] In recognizing this cause of action, however, Sharpe J.A. was careful, at para. 72, to limit
it to “deliberate and significant invasions of personal privacy” such as “intrusions
into…one’s financial or health records, sexual practices and orientation, employment,
diary or private correspondence that, viewed objectively on the reasonable person
standard, can be described as highly offensive.” As well, at para. 73 Sharpe J.A.
recognized that privacy claims “may give rise to competing claims for the protection of
freedom of expression and freedom of the press” and that “many claims for the protection
of privacy will have to be reconciled with, and even yield to, such competing claims.”
He drew an analogy at para. 73 to defamation law, citing Grant at para. 65, that “[w]hen
proper weight is given to the constitutional value of free expression on matters of public
interest, the balance tips in favour of broadening the defences available to those who
communicate facts it is in the public's interest to know.”
[226] 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.”
[227] Wiseau made other assertions of invasion of privacy at trial, all of which are without
merit. These included the complaint that he was stalked or chased in New York, an
assertion that I have rejected earlier in these Reasons. He also complained that the film

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[70] I would essentially adopt as the elements of the action for intrusion upon
seclusion the Restatement (Second) of Torts (2010) formulation, which, for the
sake of convenience, I repeat here:

 should be edited to have “more positivity by at least 60 percent” as otherwise it caused
him distress, but this has no link to the invasion of privacy tort. Wiseau also cited the
disclosure of the sealed California court case in which he was alleged to have acted
fraudulently. Again, I have addressed that issue above, but even if the defendants
obtained the court information in some improper way, on which there is no evidence, it is
still not disclosing intimate personal facts the disclosure of which would be “highly
offensive” to reasonable people.
[228] Finally, there is the public interest. Even if some intimate personal or private facts about
Wiseau had been disclosed in Room Full of Spoons, that disclosure would need to be
weighed against protecting freedom of expression in reporting facts about a well-known
person which are of interest to people interested in, or are fans of, The Room and Tommy
Wiseau.
Counterclaim and Damages
[229] It follows from my findings above that the plaintiffs’ action must be dismissed, and I now
turn to the defendants’ counterclaim.
Damages from the Injunction
[230] The 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.
[231] In order to obtain an injunction in June 2017, in accordance with court requirements, the
plaintiffs provided an undertaking to compensate the defendants for damages arising
from the injunction should it be determined that the injunction should not have been
issued. Justice Koehnen, in lifting the injunction in November 2017, found that it should
not have been issued and that it was wrongly granted as a result of the plaintiffs
misleading the court. It now falls to me to consider the damages, which flow from the
wrongful issuance of the injunction caused by the plaintiffs.
[232] The approach to determining damages in this context was helpfully summarized by
Belobaba J. in United States of America v. Yemec, 2013 ONSC 50, O.J. No. 1473, at
paras. 14 -15:
The undertaking under Rule 40.03 is given to the court—not the defendant—to
cover damage caused by a wrongly granted injunction. It is the court that exacts
the undertaking and conducts the damages inquiry for the defendant’s benefit.
The legal principles that apply to the damages inquiry are well established.
Damages for a wrongly granted injunction are assessed on the same basis as
damages for breach of contract. Causation, foreseeability and mitigation provide
the legal framework for the damages analysis. As the Court of Appeal observed
when they agreed that this inquiry should proceed:

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[233] As Koehnen J. stated, the injunction was issued at a “commercially critical time.” This is
because the injunction prevented the documentary from being released prior to, or around
the same time as, The Disaster Artist. Indeed, given the strong representation of Wiseau
on the injunction motion, in contrast to his later revolving door of lawyers that he was
unwilling to pay, one might reasonably infer that The Disaster Artist was behind the
injunction application. Regardless, the uncontradicted evidence was that there was much
interest at the time among fans of The Room and from cinemas which screen The Room in
Room Full of Spoons, interest Wiseau did his best to frustrate through threats of legal
action and, in June 2017, by obtaining the injunction.
[234] The defendants’ also led uncontradicted evidence that they were on the verge of
finalizing a distribution deal with Gravitas, which was also prevented by the injunction
due to the cloud it placed over the documentary. Although there were assertions by
witnesses for the plaintiff, particularly Spicuzza and Grewal, that Room Full of Spoons
would still need additional editing and may have challenges obtaining insurance, this
evidence was speculative, biased, and effectively challenged on cross-examination. It
was also rebutted by the defendants, who confirmed that any further changes for the
release could have been made quickly and that Gravitas itself would have provided
insurance.
[235] Most documentaries are not commercial successes. Few are expected to make money,
and the defendants worked on the project without such an expectation. They were old
friends who were fans of The Room who worked on the project for several years. None
of them had made a feature documentary before. However, the making of The Disaster
Artist changed those expectations. The defendants led expert evidence from Doug Bania
that had the documentary been released in 2017, around the time of the release of The
Disaster Artist, it had the potential to be one of those rare documentaries that attracts
widespread attention and significant box office revenue.
[236] Bania’s evidence, and his conclusion that the defendant corporation Room Full of Spoons
Inc. would have earned, conservatively, US$660,000 had the documentary been released
in 2017 is reviewed earlier in these Reasons. This evidence is compelling, it is
uncontradicted, and I accept it.
[237] In coming to this conclusion I have considered that the injunction was lifted in November
2017, that The Disaster Artist was released commercially in December 2017, and that the
defendants have not yet released Room Full of Spoons. These facts are highlighted by the
plaintiffs who argue that any losses from not releasing the documentary with The
Disaster Artist are of the defendants’ own making. I disagree. The injunction, which

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It will be up to the damages inquiry judge to determine…whether the
defendants have sustained any compensable damages, taking into account
the principles of causation, remoteness, foreseeability and mitigation, and
the general rule of public policy that precludes a person from benefitting
from his or her own crime. [footnotes deleted]

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[238] Nevertheless, interest in The Room apparently continues, and there will be a market for
Room Full of Spoons when it is finally released. To some limited extent, therefore, I
would reduce Bania’s estimate of losses to take account of the revenue that may still be
earned by the documentary. There is no clear formula for determining this, but I am
willing to assume that, absent “buzz” from The Disaster Artist, but having a ready
audience among fans of The Room and The Disaster Artist, Room Full of Spoons will
likely earn something similar to Best Worst Movie, the documentary at the low end of
Bania’s comparables, or about US$110,000 which reduces the defendants’ damages to
US$550,000.
[239] I acknowledge that this assessment of damages involves some guesswork, but it is at least
guessing within a framework and is what I must do in such circumstances: Walsh v.
Buchanan, 1994 CarswellOnt 5676 (Ont. Sup. Ct.), at paras. 227-228.
[240] I also conclude that the damages should be awarded to the defendants’ corporate entity,
Room Full of Spoons Inc., which owns the documentary and is the appropriate vehicle to
receive the funds.
Defamation
[241] The defendants’ counterclaim also seeks damages for defamation resulting from
Wiseau’s “Shame on You” campaign. However, the defendants did not press defamation
as a separate finding I should make at trial, submitting that Wiseau’s conduct in attacking
them should be considered in support of an award of punitive damages. I agree that
Wiseau’s campaign stated falsehoods about the defendants on social media and in
correspondence to many people in the film industry. Wiseau accused the defendants of
acting illegally, which is clearly defamatory, and the defamatory statements were part of
a broader campaign to prevent the defendants’ project from advancing. This campaign
also included preventing the Kickstarter campaign from continuing and, later, preventing
the release and screenings of the film for which the defendants will be compensated by
the damages I have already concluded should be awarded to them. Further, there is little
evidence as to the scope of publication of Wiseau’s defamatory statements, and none of
the individual defendants were singled out. In my view, Wiseau’s conduct in this regard
is, as the defendants have suggested, best addressed under punitive damages.
Punitive Damages
[242] Punitive damages are exceptional and must be awarded with restraint. They are limited
to cases where a litigant’s conduct is “malicious, oppressive and high-handed” or

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launched this lawsuit, had the effect of blocking the release of the documentary in 2017.
Although lifted in November, the defendants could not complete the distribution deal
while the lawsuit was outstanding and, in any event, it would have been impossible to
finalize, market and distribute Room Full of Spoons widely within just a few weeks in
late 2017, which is when the “buzz” for The Disaster Artist peaked.

 “offends the court’s sense of decency:” Whiten v. Pilot Insurance Co., 2002 SCC 18,
[2002] 1 S.C.R. 595, at para. 36 (“Whiten”). Awards of punitive damages may be made
where the misconduct is “a marked departure from ordinary standards of decent
behavior.” The object of awarding punitive damages is to punish the guilty party rather
than compensate the innocent one: Whiten, at para. 36 and paras. 66-76. The misconduct
giving rise to punitive damages can arise from the causes of action, and/or from a
litigant’s conduct of the litigation itself: McCabe v. Roman Catholic Episcopal
Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213, 146 O.R. (3d) 607,
at paras. 43-48.
[243] At para. 94 of Whiten, Binnie J. summarized the factors to be considered in deciding
whether punitive damages should be awarded:
(1) Punitive damages are very much the exception rather than the rule, (2)
imposed only if there has been high-handed, malicious, arbitrary or highly
reprehensible misconduct that departs to a marked degree from ordinary standards
of decent behaviour. (3) Where they are awarded, punitive damages should be
assessed in an amount reasonably proportionate to such factors as the harm
caused, the degree of the misconduct, the relative vulnerability of the plaintiff and
any advantage or profit gained by the defendant, (4) having regard to any other
fines or penalties suffered by the defendant for the misconduct in question. (5)
Punitive damages are generally given only where the misconduct would otherwise
be unpunished or where other penalties are or are likely to be inadequate to
achieve the objectives of retribution, deterrence and denunciation. (6) Their
purpose is not to compensate the plaintiff, but (7) to give a defendant his or her
just desert (retribution), to deter the defendant and others from similar misconduct
in the future (deterrence), and to mark the community’s collective condemnation
(denunciation) of what has happened. (8) Punitive damages are
awarded only where compensatory damages, which to some extent are punitive,
are insufficient to accomplish these objectives, and (9) they are given in an
amount that is no greater than necessary to rationally accomplish their
purpose. (10) While normally the state would be the recipient of any fine or
penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in
addition to compensatory damages. (11) Judges and juries in our system have
usually found that moderate awards of punitive damages, which inevitably carry a
stigma in the broader community, are generally sufficient.
[244] In my view an award of punitive damages is justified in this case. 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. In doing so, the plaintiffs were concerned with
protecting and maximizing the value of The Disaster Artist, in which the plaintiffs have a
financial interest. This effort even continued at trial when the plaintiffs sought to have
consideration of The Disaster Artist excluded. Most notably, however, in purporting to

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51

 continue negotiations, the plaintiffs requested that the defendants delay the
documentary’s release, which they did so that the plaintiffs could use that delay to
prepare for and obtain an injunction – an injunction obtained ex parte and based on
misleading and incomplete material – which prevented Room Full of Spoons form being
released around the same time as The Disaster Artist. Wiseau then refused to attend for
cross-examination on his affidavit, and has not produced any financial information
relating to The Disaster Artist.
[245] 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. Wiseau’s conduct in attempting to delay the trial has been reviewed above. As
the case management judge Koehnen J. noted in his Direction of December 31, 2019, the
plaintiffs “created roadblocks to scheduling at almost every attendance before [him]”.
Wiseau also forced his lawyers to bring motions to remove themselves as counsel of
record and then attempted to rely on the lack of counsel as a basis for delay, even though
the situation was of Wiseau’s own making. Wiseau’s motivation was made crystal clear
when, on the last business day before trial, he sought to discontinue the proceeding with
the intention of starting a new claim somewhere else.
[246] The plaintiffs also made misrepresentations to third parties about the legality of screening
the documentary, and conducted the “Shame on You” campaign which wrongly accused
the defendants of illegal conduct, including “stealing” material from Wiseau. This
conduct prevented the defendants from raising money on Kickstarter and the injunction
and ongoing litigation effectively destroyed the defendants’ years of work developing a
profile for the Room Full of Spoons project on social media.
[247] Wiseau also accused the defendants of filing “perjurious” affidavits, though he never
identified what was allegedly false. Despite this, he asked the case management judge to
direct the Crown Attorney to prosecute the defendants for perjury less than a month
before trial was to commence. Wiseau also made misrepresentations to the court
regarding his availability for trial.
[248] Further, in considering an award of punitive damages, I am mindful that the defendants
intended in early 2019 to bring an anti-SLAPP motion. Had they done so and been
successful, and had the judge found that the action was brought in bad faith, the
defendants would be entitled to damages: Courts of Justice Act, R.S.O. 1990, c. C. 43, s.
137.1(9). While this is not an anti-SLAPP motion, the ability to obtain damages in such
circumstances is recognition of the wrong caused by actions, which have the effect of
infringing a defendant’s freedom of speech. In my view this action was brought for the
improper purpose of preventing the release of a documentary disliked by Tommy
Wiseau. None of his causes of action had any merit, as I have found above and which, I
note, is not inconsistent with the findings of Koehnen J. when he reviewed the strengths
or, more aptly, the weaknesses in the plaintiffs’ case made on a more limited record when
the injunction was lifted. In my view, the deliberate infringement on the defendants’

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[249] The defendants/plaintiffs by counterclaim seek an award of $500,000 in punitive
damages, citing the recent award of $1,000,000 in Nintendo of America Inc. v. King, 2017
FC 246, 146 C.P.R. (4th) 369, involving the circumvention of technological prevention
measures, and the award of $200,000 in Hilltop Group Ltd. v. Katana, [2002] O.J. No.
4136 (Ont. Sup. Ct.), which arose from misconduct throughout the proceedings, including
false affidavits and fraudulent conduct as well as obfuscation and delay in the
proceedings.
[250] This case lies closer to Hilltop than Nintendo. Indeed, the description of the litigation
conduct in Hilltop is worse than this case. However, the conduct in obtaining the
injunction and continuing to pursue the case had a serious impact on the defendants’ right
to freedom of expression, and was done in order to maximize the plaintiffs’ assets. The
plaintiffs’ conduct should therefore be condemned. Having regard to the factors set out
in Whiten, quoted above, I conclude that an award of CDN$200,000 is appropriate to
punish the plaintiffs for their egregious conduct. As with the compensatory damages, the
punitive damages are awarded to the corporate defendant/plaintiff by counterclaim,
Room Full of Spoons, Inc.
Conclusion
[251] 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. The defendants are
entitled to their costs. The defendants shall provide me with brief written submissions on
costs within 30 days of the release of these Reasons, and the plaintiffs shall provide a
response within 30 days of the receipt of the defendants’ submissions.

Schabas J.
Date: 2020-04-23

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freedom of speech caused by the plaintiffs’ actions also supports an award of punitive
damages.