 |
| Sarina Nezhadian |
In the picture, Trofimova joins a Russian army unit on the frontline of Ukraine. Russians at War was set to be screened four times during the festival. In an unprecedented move by TIFF, only one of the four screenings aired. The festival cancelled the other three due to, it said, significant threats to festival operations and public safety.
BrAt_PiKaChU: ISTOCKPHOTO.COM
But what happens when the debate escalates? If a screening needs to be stopped, who decides? At what point does judicial intervention resolve the escalating tensions? While no legal claim has yet been filed, TIFF is on the front line of this battle.
When drama on screen spills into the courtroom, legal challenges often follow. From the legal frameworks that can block a film’s release to the responsibilities of filmmakers and the courts’ influence on the industry, these issues shape the intersection of entertainment and law. Now, let’s start our feature presentation.
Copyrights and wrongs
One scenario where someone may wish to prevent a screening is when there’s copyright infringement, through an injunction.
Under the Copyright Act, creators hold exclusive rights to control their work’s distribution, performance and reproduction. Unauthorized sharing could constitute copyright infringement. A creator can, in cases of infringement, seek an injunction to stop it.
However, under the “fair dealing” exemption in the Copyright Act, certain uses may be permissible. Use of a work for one of the following eight purposes may not constitute an infringement: (1) research, (2) private study, (3) criticism, (4) review, (5) news reporting, (6) education, (7) satire and (8) parody. The use must also be fair. Canadian courts evaluate fairness by considering factors such as (1) the purpose of the dealing, (2) the character of the dealing, (3) the amount or proportion of the dealing, (4) available alternatives to the dealing, (5) the nature of the work and (6) the effect of the dealing on the work.
How does this all play out in reality? To start, a documentary about a movie considered among the worst ever provides some insight.
Act I: Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504
Director Richard Harper created a documentary based on the movie in question: Tommy Wiseau’s The Room. The documentary, Room Full of Spoons, tells Harper’s story of his interest in The Room and contains interviews with cast members, critics and film scholars. It also includes excerpts from the original movie totaling about seven minutes.
Though Wiseau initially supported the project, he withdrew and later sought and received an ex parte injunction to block the documentary’s release based on copyright infringement and other claims.
As a result of the injunction, the defendants had to halt the film’s release, resulting in lost investments by distributors and loss of promotional marketing and interview opportunities. The injunction deprived the defendants of valuable publicity for its duration. The injunction was eventually dissolved because Wiseau had failed to make proper disclosure initially and failed to meet the three-part test for an injunction (Wiseau Studio et al. v. Richard Harper, 2017 ONSC 6535).
At trial, the court found that Room Full of Spoons infringed on Wiseau’s copyright by reproducing a substantial part of the original film. While the reproduced clips amount to only seven minutes, the court reasoned that “the documentary would not be the same without the number of clips used,” which, in its view, were not “trivial.”
Even so, the defendants successfully invoked the fair dealing exemption by showing that the documentary served to critique and review The Room. To the extent that a documentary uses copyrighted materials, as in Room Full of Spoons, that use is allowable for the purposes of “criticism, review or news reporting” under the fair dealing provisions.
The court also determined the use in question was “fair.” First, the use was not for commercial dealing but was, instead, to make a documentary and provide critique, review and information on The Room and its creator. Second, the character of the use included commentary alongside footage, which is a common method of critique. Third, the quantum of the use was not excessive, because it was seven minutes from a 99-minute film. Fourth, no alternatives existed to effectively convey the documentary’s points. Fifth, the copyrighted material was not confidential or unpublished. On the contrary, The Room has been widely available and free online and had, by then, attained a cult following.
The last and arguably most important factor concerns the effect of the dealing on the work. The court found that Room Full of Spoons did not substitute or replicate the unique experience of The Room but, instead, increased interest in it. Film festivals showed both works as double features, suggesting that the documentary complemented rather than competed with The Room. There was no evidence of negative impacts of The Room, excluding speculative commentary.
In view of all this, the court dismissed Wiseau’s claims. As Wiseau shows, while injunctions can temporarily impede a film’s screening, they only offer limited protection until the court fully assesses the merits of the claim.
Act II: Pourshian v. Walt Disney Company, 2021 ONSC 4840
Many of the largest entertainment and production powerhouses, such as Warner Brothers, The Walt Disney Company and Universal Pictures, are headquartered in the United States. Nevertheless, this does not exempt them from facing allegations of copyright infringement brought by Canadian claimants.
A case relating to the Oscar-winning hit Inside Out shows this. Beneath its heartfelt storyline lurked a copyright infringement claim. In 2019, Damian Pourshian brought an action against multiple defendants, including Walt Disney Pictures Inc. and Pixar Animation Studios, two companies involved in the film’s production and distribution. Pourshian claimed the Disney/Pixar Inside Out was based on a film, also titled Inside Out, that he created in 2000 while attending Sheridan College. Notably, some of his Sheridan College classmates later worked on the 2015 Inside Out production. So, like Wiseau, he sought an injunction.
Pourshian demonstrated his copyright for the 2000 Inside Out in Canada, but to go further, he needed to establish a good arguable case for jurisdiction over each defendant. In particular, because Disney and Pixar are both foreign entities, to establish jurisdiction Pourshian needed to show that they had an actual presence in Canada. While several other defendants successfully rebutted their connection to the production or distribution of the 2015 Inside Out, Disney and Pixar were unable to do so.
This, in Disney’s case, was because it produced Inside Out and was responsible for its distribution — presenting a strong case for the Ontario court to assume jurisdiction based on the presumptive factors of copyright infringement in Ontario. Similarly, Pixar filmed, produced and was the registered owner of the 2015 Inside Out in Canada. This similarly established a clear link to Ontario, as it was part and parcel of the chain and distribution that led to the film’s availability in Ontario.
While the case is still pending, it has, so far, attracted significant attention for cross-border copyright disputes, and rightly so.
Act III: Denny v. Dennis, 2016 BCPC 152
Another key issue in copyright disputes is the contractual relationships between filmmakers. That was the case in a dispute about an amateur low-budget fictionalized comedy-drama called Forgive Me Father. The defendant in that dispute, Dianne Dennis, owned the copyright to the film; the cameraman plaintiff, Martin Denny, wanted to obtain rights to use the footage he shot, as well as being appropriately credited for his contributions.
Part of the agreement between Dennis and Denny included a payment structure based on the profits after the marketing of the film. While the terms of the agreement contained both written and oral elements, the court determined that an implied term was necessary to give the contract the business efficacy intended by both parties. This established an obligation for Dennis, or anyone assigned any copyright in Forgive Me Father, to make their best efforts to market and distribute the film. Both parties understood this as an implicit requirement of their agreement. Without such a commitment, the agreed-upon payment structure would be unfair and meaningless.
Yet Dennis presented no evidence at trial suggesting that she pursued any marketing initiatives, such as selling, distributing, submitting to film festivals or having the film reviewed by any professionals. The lack of financial success was attributed to Dennis’s failure to effectively promote the film.
That aside, the court declined to grant Denny a right to use footage from Forgive Me Father. Although the right to use the footage was not explicitly included in the agreement, Dennis gave evidence that she did not wish for her film to be disseminated in fragments. As the sole copyright owner, the court found Dennis entitled to take this position. To create and use film footage from Forgive Me Father, Denny would need a limited written license or assignment of Dennis’s copyright, which she had not provided.
Denny had greater success with his claim about not being appropriately credited for the film. Because Dennis failed to provide Denny with the agreed-upon credits, as the court found, she had breached the contract. The credits were of significant importance to Denny, given that he had worked in hopes of the film being fairly marketed. As a result, the court ordered specific performance compelling Dennis to fulfil her obligation and provide the proper credits to Denny.
Thus, while the court recognized that implied rights can be inferred based on the parties’ intentions to ensure fairness, the sole copyright owner retains the right to control how their work is used.
That’s a wrap
The legal battles explored in this article demonstrate the complexities faced by filmmakers and their works within the landscape of copyright law and artistic expression. Each case explores the tension between creators’ rights, contractual obligations and the responsibilities of those involved in film production and distribution.
While we have not yet seen any claims brought forward on behalf of Russians at War, it finds itself at the intersection of creative freedom, legal rights and the role of judicial intervention. The next time a screening is cancelled, keep an eye out — it might be more than just public safety at play; it might be the curtain coming down due to an injunction.
Sarina Nezhadian is a civil litigation associate at Henein Hutchison Robitaille LLP where she has a diverse practice area including entertainment law, with additional focus on criminal and regulatory matters. Nezhadian has a keen interest in film and television and enjoys exploring the intersection of creative works and the law. The author would like to extend a special thanks to David Postel for his insightful edits, thoughtful guidance and contributions to this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.