Fair dealing debates often focus on education-related issues, but its role as a user’s right extends far beyond the classroom. As part of fair dealing week, I’ll be posting on several cases that highlight the importance of fair dealing for many other purposes. For example, last year an Ontario case highlighted how fair dealing is an essential legal right for creators. The Room is a well-known film (sometimes referred to as the Citizen Kane of bad movies) that was the subject of The Disaster Artist, a film released late last year starring James Franco. In 2016, a group of documentary film makers released Room Full of Spoons, which examined the popularity of The Room.
Tommy Wiseau, the man behind The Room, was originally involved the documentary, but later dropped out and used the courts to try to stop any further distribution. Those legal actions included an Ontario court case in which fair dealing played a prominent role. The documentary features 69 clips for a total of seven minutes of excerpts from the original film, which Wiseau argued would result in the loss of his copyright. The court engaged in a detailed analysis of the fair dealing issue, noting:
At the request of both parties I have viewed the entirety of Room Full of Spoons and am satisfied that its use of any copyrighted materials is for the purpose of criticism, review or news. While the defendants no doubt have a commercial purpose behind the creation and marketing of their documentary, that does not detract from its character as criticism, review or news.
The court continues by reviewing each aspect of the fair dealing test, concluding:
I do not accept the plaintiffs’ characterization that Room Full of Spoons duplicates The Room. The Room is a 99 minute movie. Seven minutes of isolated clips of a few seconds each do not reproduce the original movie. Particularly not here, where the movie’s cult status comes not from people simply wanting to know “Who did it” as might be the he case with a mystery where knowing the ending might ruin the movie. Its cult status derives from the social experience of seeing a movie where viewers dress as characters, mock the dialogue and throw objects at the screen. That type of social engagement presupposes familiarity with the movie. Moreover, the documentary is no substitute for the social experience of seeing the movie. If anything, the documentary may whet the appetite of the uninitiated to see The Room and share the social experience.
The court proceeded to dissolve an earlier injunction and permit the film to be viewed and distributed. The Canadian case provides an important reminder that creators often rely on fair dealing in support of their own creativity. The frequent attempts to frame fair dealing or user’s rights as anti-copyright not only misleads on the Supreme Court of Canada’s emphasis on the need for balance between creator rights and user’s rights, but also overlooks creators’ reliance on fair dealing in the creative process.