This article reviews material developments in Canadian legislation, case law, and practice in the area of copyright in 2020. All references in this article to the “Act” refer to the Copyright Act, R.S.C. 1985, c. C-42, as amended. This article was originally published by The Continuing Legal Education Society of British Columbia in their “Annual Review of Law & Practice – 2021”.
B. Law and Policy
To say 2020 has been an unusual year would be an understatement. As a global pandemic raged and impacted every facet of our lives, the law was no different. Developments continued, of course, but not in the manner or pace of years past. It would be fair to say that it has been a quieter twelve months for Canadian copyright as a result. Nevertheless, there were still some interesting decisions from the courts and some legislative developments flowing from topics discussed in this article over the last few years. Most notably, the new (or revised) free-trade agreement with the United States and Mexico was implemented, and a new regulation was made under the Act in relation to the Copyright Board of Canada (the “Board”).
As always, some of the more interesting cases from years past continue to make their way through the appeal process and we’ll undoubtedly return to some of them in future years, when further judicial pronouncements are made. For now, let’s start our review of 2020 with a look at developments on the legislative side.
1. NAFTA 2.0 is CUSMA 1.1 Redux: Implementation
As discussed in this article over the last few years (e.g., see last year’s article), in late 2018, Canada reached a new free-trade agreement with the United States and Mexico (usually abbreviated and referred to as “CUSMA” (in English) or “ACEUM” (in French) in Canada, “USMCA” in the United States, and “T-MEC” in Mexico) which was intended to replace the North American Free Trade Agreement.
After further (re)negotiation due to domestic imperatives, on December 10, 2019 revisions to CUSMA were agreed upon. As part of CUSMA’s implementation in Canada, Bill C-4 (An Act to implement the Agreement between Canada, the United States of America and the United Mexican States) was introduced for first reading in the House of Commons on January 29, 2020 and ultimately received royal assent on March 13, 2020. The key provisions then came into force on July 1, 2020.
Most significantly for copyright, CUSMA was meant to generally extend the term of copyright protection under the Act from 50 to 70 years following the author’s death. Notably, the aforementioned Bill C-4 did not implement this change and, indeed, Canada has two-and-a-half years in which to do so—thus, stay tuned. Instead, at this stage, other term changes to the Act were implemented to meet CUSMA requirements where the term was not tied to the author’s life, in relation to anonymous works, cinematographic works, performer’s performances and sound recordings. These are now generally either 75 years (anonymous works) or 70 years (cinematographic works, performer’s performances and sound recordings) following creation, unless the work is published before copyright expires, in which case it shall continue until the earlier of 75 years from publication or 100 years from creation. The term extensions do not revive any copyright that already expired as of July, 1, 2020 and only apply on a going-forward basis.
2. Time Limits for the Copyright Board
The one other development we did see at the tail end of 2020 was the registration of a new regulation under the Act: Time Limits in Respect of Matters Before the Copyright Board Regulations, SOR/2020-264 on December 4, 2020. As a general rule and with certain exceptions, this regulation requires the Board to issue decisions within 12 months after submissions. The regulation was a direct response to the historical delays that have been a long-standing concern with how the Board fits into the broader Canadian copyright framework.
C. Case Law
The discussion below encompasses a selection of interesting copyright cases from 2020. For the most part, the discussion excludes ‘copyright’ cases that are only notable for reasons other than copyright—i.e., for developments in law relating to civil procedure, administrative review, or otherwise.
1. Infringement and Fair Dealing
Going back to school, the Federal Court of Appeal in York University v. Copyright Licensing Agency, 2020 FCA 77 decided an appeal to a 2017 decision of the Federal Court (covered in that year’s article). The appeal dealt with two main issues: whether the Canadian Copyright Licensing Agency’s (operating as Access Copyright; herein referred to as “Access”) interim tariff was mandatory and whether any copying of materials pursuant to York University’s (“York”) fair dealing guidelines qualified as fair dealing.
The origins of the dispute between Access and York date back to 2010. Access, a copyright collective, was re-negotiating its licence agreement with, among others, York, though the parties did not reach an agreement before the previous licence agreement expired. As a result, Access applied to the Board for an interim tariff. The Board granted the tariff, but York (among other parties) indicated it was ‘opting out’ of the tariff. York then developed its own “Fair Dealing Guidelines for York Faculty and Staff (11/13/12)” (the “Guidelines”) for its faculty and staffs’ copying purposes. Access then started a claim in the Federal Court to enforce its interim tariff against York, and York counterclaimed, arguing that any copying of materials done in compliance with the Guidelines would constitute fair dealing, allowable under section 29 of the Act. At trial, the Federal Court found the interim tariff to be mandatory and denied York’s application for a declaration that copying pursuant to the Guidelines constituted fair dealing. York appealed.
The Federal Court of Appeal first considered whether Access’s interim tariff was mandatory. To determine the issue, the court engaged in an extensive historical analysis of copyright law in Canada. It considered that in the late 1920s and early 1930s, the legislature had to respond to the issue of a collective performing rights society achieving a “quasi-monopoly” by “acquiring performing rights from the original owners of the copyright” (at para. 58). The Act was thus amended in 1931 and the legislature imposed a scheme on collective societies that has largely survived to the present day. This scheme included obliging a performing rights society to disclose its repertoire and file a statement of proposed fees. These amendments regulated “the licensing practices of performing rights societies”; but they did not “replace them by a non-consensual scheme” (at para. 77). The pre-existing rights of copyright holders remained in force except where they were expressly modified. As of 1985, then, the court found there was no non-consensual licensing scheme for performing rights societies. The court then considered whether subsequent amendments “changed the nature of the statutory scheme” (at para. 85).
The Act underwent significant amendments in 1988. These amendments “provided a first legal framework for the collective administration of copyrights other than performing rights” (at para. 88) and “recognized ‘licensing bodies’, the precursors of collective societies, as a vehicle by means of which the collective administration of copyrights could be carried out” (at para. 90). As a result of these amendments, and contrary to Access’s argument, the court found that performing right societies could not impose mandatory fees and royalties schemes. Regarding the performing rights scheme, the scheme for the new licensing bodies was also not a mandatory scheme. That is, users “retained the ability to decide whether or not to become licensees” of a licensing body (at para. 114).
In 1997, the Act was amended and introduced a new term—collective societies—which was defined to include both performing rights societies and licensing bodies. The 1997 amendments retained the performing rights scheme and introduced a new, general scheme for “dealing with the collective administration of the copyrights set out in sections 3, 15, 18, and 21” (at para. 118).
The court reviewed the performing rights provisions and, after a lengthy analysis, concluded that the 1997 amendments did not alter the fundamental structure that was put in place in the 1930s. While the performing rights provisions were not an issue on appeal, the court felt it needed to review them because of how the provisions for collective societies, generally, incorporates the performing rights provisions. The court then turned to the general scheme that “deals with collective societies that operate a licensing scheme” (at para. 175) and to the jurisprudence on the enforceability of tariffs. Again, the court could find no indication from the legislative provisions that tariffs would be mandatory, contrary to Access’s argument. The court explained (at para. 190):
The difficulty with [Access’s] argument is that it misapprehends the effect of a tariff. Collective societies operate a licensing scheme; a collective society’s approved tariff sets out the royalties to be collected for issuing licences. The instrument which makes the tariff enforceable against a user is the licence which the user accepts from the collective society. …
In concluding that Access’s tariff was not mandatory, the court considered that a collective society and tariff regime is “a means of regulating licensing schemes which, by definition, are consensual” (at para. 202). While the statutory language had been modified over the years, “the continuous references to licensing schemes and the retention of the key elements of the 1936 Act leave little doubt that tariffs are not mandatory which is to say that collective societies are not entitled to enforce the terms of their approved tariff against non-licensees” (ibid.). While the core analysis here was in relation to a final tariff, and not the interim tariff at issue per se, this did not make a difference for the court, which noted that if “a final tariff would not be binding, the conclusion can hardly be different for an interim tariff” (at para. 204).
Having concluded that Access’s tariff was not mandatory, Access could not maintain an action for enforcement of its tariff and York’s argument that its Guidelines defended against Access’s action no longer arose. This was not a free-for-all, though. The court explained: “Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties. Infringers are subject to an action for infringement and liability for damages but only at the instance of the copyright owner, its assignee or exclusive licensee” (at para. 205). That is, if York’s actions were infringing (and not covered by fair dealing), they could still be actionable, but just not by Access.
York’s second ground for appeal concerned the lower court’s refusal to grant a declaration that copying made pursuant to the Guidelines constituted fair dealing. The court considered CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (“CCH”) on this point, and the six fair dealing factors enumerated therein. First, regarding the purpose of the dealing, the court discussed from whose perspective that purpose should be considered. In this case, it was as between York and its students. The court wrote that what mattered was the institution’s perspective as this was an institutional claim of fair dealing (i.e. not being made by a given student), particularly as the current factual matrix dealt with guidelines (i.e. the Guidelines). Second, regarding the character of the dealing, the appeal court found that the lower court did not err in its conclusion “that the Guidelines tended towards unfairness either in the aggregate or from the point of view of an individual student receiving 360 copies, an amount which York did not justify beyond invoking education as an allowable purpose” (at para. 258). Third and turning to the amount of the dealing, the court did note that the lower court erred by digressing into a quantitative analysis, veering away from the correct proportionality analysis. However, the appeal court viewed this digression “as [the lower court’s] attempt to show that the copying in this case was anything but trivial or insignificant” (at para. 279). This was a palpable error, but it was not overriding. Fourth, the appeal court agreed with the lower court that the alternatives to the dealing factor militated in favour of York but that “its effect is mitigated” (at para. 292). Fifth and sixth, the appeal court found no error in the lower court’s analysis of the effect of the dealing or the nature of the work.
The appeal court concluded that it “was incumbent on [York] to justify the Guidelines themselves so as [to] allow the Court to declare that reproductions that fall within the Guidelines are fair dealing. It has not done so” (at para. 310). The Federal Court of Appeal dismissed York’s appeal from the Federal Court’s dismissal of its counterclaim.
Not unexpectedly, the results did not satisfy either party entirely and each sought leave to further appeal. Leave to appeal was granted by the Supreme Court of Canada on October 15, 2020, so stay tuned for more updates when classes resume!
In the case of Stross v. Trend Hunter Inc., 2020 FC 201, “Friendly Housing Rows” turned into a not-so-friendly row! The plaintiff photographer in this Federal Court matter, Alexander Stross (“Stross”), had taken a series of photographs of a housing project in Llano River in Texas, in and around 2011. Stross had been engaged to do so by an architect. The defendant Trend Hunter Inc. (“Trend Hunter”) was a market research company that operates trendhunter.com. On January 11, 2017, Trend Hunter reproduced six of Stross’s photographs in a piece entitled “Friendly Housing Rows”. The “Friendly Housing Rows” piece was available on trendhunter.com until October 27, 2017. Stross claimed that Trend Hunter’s reproduction of the photographs constituted copyright infringement.
First, the court considered whether Stross owned the copyright in the photographs such that he could bring an infringement claim. Stross had entered into a Recovery Service Agreement with ImageRights, an American company that provides image search and copyright enforcement services to copyright owners. Trend Hunter argued that pursuant to the agreement, it was ImageRights, not Stross, who could bring a claim for copyright infringement since Stross appointed ImageRights as his “exclusive agent”. The court disagreed, saying that there was no express language in the agreement by which Stross assigned his rights under subsection 3(1) of the Act to ImageRights.
The court next considered whether Trend Hunter infringed Stross’s copyright in the photographs or whether Trend Hunter’s use of the photographs constituted fair dealing. The court followed the framework for fair dealing set out in CCH. As a preliminary matter, the court considered whether Trend Hunter’s use of the photographs was for an allowable purpose. The court concluded it did, noting that the first part of the fair dealing framework has a low bar. The court agreed with Trend Hunter that its activities were “akin to a computerized version of a market research study group that measures consumer interaction and response to market trends” (at para. 24).
The court then needed to determine whether Trend Hunter’s use was “fair”. The court noted that determining whether a dealing was “fair” was a fact-specific exercise that was guided by the six factors from CCH. First, regarding the purpose of the dealing, Trend Hunter’s goal was ultimately “commercial in nature”; there was no benefit to Stross or any broader public interest (at para. 41). Second, the court characterized the character of the dealing as “more extensive than a single use in print advertising, although not sufficient … to be considered to be in wide circulation from an internet-based perspective based on the number of views made” (at para. 44). Third, the court rejected Trend Hunter’s argument that the amount of dealing depended on the fact that the photographs were of a reduced quality. Fourth, the court noted that Trend Hunter did not follow its own copyright policy when it reproduced the photographs and that the piece containing the photographs was not reviewed by research editors prior to being published. The court concluded that there were alternatives to Trend Hunter’s dealing that should have been used. Fifth, the nature of the work was seen as a neutral factor, as the photographs in question had previously already been widely distributed online, before Trend Hunter’s use. Sixth, regarding the effect of the dealing, the court noted that Stross and Trend Hunter were not in direct competition and found that the dealing did not affect Stross’s ability to licence the photographs. On balance of these six factors, the court nevertheless concluded that Trend Hunter’s reproduction of the photographs did not constitute fair dealing, and seems to have been motivated in large part by the fact of Trend Hunter failing to follow its own copyright policies.
Turning to damages, the court awarded a total of $3,983.40, finding there to be no evidence to justify punitive damages and basing the award on the low end of the licensing fees found in Stross’s agreement with the architect who originally commissioned the photographs.
Parenthetically, Stross had also brought the action for copyright infringement personally against Jeremy Gutsche, CEO and founder of Trend Hunter. The court dismissed the claim against Mr. Gutsche personally, finding that there was no evidence to support the argument that he was personally involved in the copyright infringement.
2. Substantial Similarity
Staying in the realm of real estate, the Ontario Superior Court in 1422986 Ontario Limited v. 1833326 Ontario Limited, 2020 ONSC 1041 showed that trying to make a cookie-cutter home from an original design is a half-baked idea. The plaintiff, 1422986 Ontario Limited operating as Northern Homes Designs (“Northern Homes”) had been engaged in 2010 by the defendant 1833326 Ontario Limited operating as Syncor Contracting Limited (“Syncor”) to design a townhome project, including architectural designs and drawings, in Thunder Bay, Ontario (the “Thunder Bay Project”).
Subsequently, in 2015, Syncor retained the defendant Jeremiah Gammond operating as Gammond Architectural Technology (“Gammond”) to design a new townhome project in Fort Frances, Ontario (the “Fort Frances Project”). The principal of Northern Homes, Alan Cooke (“Cooke”), saw an article about the Fort Frances Project and believed it to be based substantially on the drawings he had produced for the Thunder Bay Project—the article he saw included a photograph of a billboard for the project and the plaintiff’s principal felt the depictions were “strikingly similar” (at para. 23) to the prior illustrations for the Thunder Bay Project, and that they were “the same in everything from unit arrangement, to window location, to roof design, to the door location, to the siding and even the landscape and sky graphics” (ibid.), though the plaintiff conceded the Fort Frances Project was “not an exact replica” (at para. 53).
The defendants accepted at trial that copyright in the drawings for the Thunder Bay Project rested with the plaintiff but asserted that the Fort Frances Project was sufficiently different and that there was therefore no infringement. Further, Gammond had testified that while Syncor had provided him with drawings from the Thunder Bay Project, he used these merely as a “reference point” (at para. 68).
Thus, the main issue for the court was to determine whether there was substantial similarity and substantial unauthorized reproduction made of the drawings pertaining to the Thunder Bay Project. The court engaged with the designs and drawings of Cooke and Gammond and weighed the evidence of the parties’ expert witnesses as to similarities and differences. The court concluded that the two designs were substantially similar, in part because the differences noted by Gammond and Gammond’s expert witness were not significant, and that “the most important parts of Cooke’s work have been reproduced” (at para. 80). The court found that while there are a number of design features that are common across townhomes, it was how these features were arranged that was substantially similar between the two designs, finding that “the two designs remain observably strikingly similar with respect to the overall concept design and layout as reflected in the style of home, the outside appearance, the relationship of one room to another and the flow of the building” (ibid.).
The court concluded that Gammond’s design for the Fort Frances Project was a substantial (though not identical) copy of design for the Thunder Bay Project, as Syncor wanted to “repeat” the response it had received to those earlier townhomes (at para. 85), and rejected that mere independent (and coincidental) creation had taken place (at para. 81).
For remedies, the court granted declaratory relief that copyright had been infringed and granted the plaintiff $6,500 in statutory damages. The court denied punitive damages on the basis that there was no evidence that the defendants’ conduct was “malicious, oppressive or highhanded” (at para. 108). The court further granted the plaintiff a permanent injunction preventing Syncor and Gammond from using the designs for either the Fort Frances Project or Thunder Bay Project without the plaintiff’s express permission.
In Derek Mailhiot (dba The Junk Guy) v. 1095148 B.C. Ltd., 2020 BCCRT 945, a decision of the British Columbia Civil Resolution Tribunal, we were reminded that obtaining a custom-made logo without a copyright assignment is pure junk when it comes to ownership. The plaintiff Derek Mailhiot (dba The Junk Guy) (“Junk Guy”) sued the respondent 1095148 B.C. Ltd., operating as Anything Junk (“Anything Junk”) for copyright infringement. Junk Guy alleged that Anything Junk had used his business logo without licence or permission. Anything Junk denied that Junk Guy owned the copyright in the logo at issue.
The evidence adduced indicated that Junk Guy had contracted with a graphic designer to design the logo for $100, but not that copyright had ever been transferred to him under the Act as part of the arrangement. The tribunal found that the graphic designer was the first (and by implication current) owner of the copyright. As Junk Guy failed to establish he owned the copyright or otherwise had standing, there was no need to for the tribunal to proceed further and the claim for copyright infringement was dismissed.
Following a summary judgment decision rendered in 2019 (see Rallysport Direct LLC v. 2424508 Ontario Ltd., 2019 FC 1524), the Federal Court returned in 2020 to the question of damages in Rallysport Direct LLC v. 2424508 Ontario Ltd., 2020 FC 794. The plaintiff rallied and the court took issue with the bad driving of the defendants. Here, the parties operated in the world of aftermarket specialized automotive components and accessories, and in its 2019 summary judgment decision, the court had found the plaintiff held copyright in 1,433 works (primarily photographs). As described in the 2020 damages decision, the defendants had infringed those copyrights by “unlawfully electronically reproducing and displaying” the copyrighted works on a website (at para. 1). As the matter had been bifurcated, damages and costs had not been assessed at that stage.
The court began by considering statutory damages. The plaintiff claimed $500 per work, being the statutory minimum in cases of infringement for commercial purposes. The court reviewed the jurisprudence and noted that the statutory minimum of $500 per work could be reduced “‘where there is more than one work in a single medium and where awarding the minimum per work would yield a total award that is grossly out of proportion to the infringement’”, quoting Telewizja Polsat S.A. v. Radiopol Inc., 2006 FC 584 (at para. 7; emphasis by the court).
The court disagreed with the defendants’ argument that they had not acted in bad faith and noted that the defendants displayed at least 42 infringing works for over two years after receiving a cease-and-desist letter. The director and officer of the corporate defendants indicated that after receiving the cease-and-desist letter, he directed the corporate defendants’ third-party to contractors to remove the infringing images. However, he “indicated falsely that he had removed all infringing images on multiple occasions” after receiving the letter (at para. 35). The court further disagreed that this was merely a “technical breach” (at para. 42). Furthermore, the court took issue with defendants’ actions to try and “judgment-proof them[selves]” (at para. 52), which the court found was “high-handed and tantamount to “stonewall[ing] while they continued to exploit the Plaintiffs’ rights”” (ibid.).
Taking these facts together, including “the need for deterrence” (at para. 53), the court awarded $250 per work for 1,430 works (noting that the damages for the three “production design” works would be adequately addressed in the overall award for statutory damages) on statutory damages, or $357,500. The court found that while aggravated damages were not appropriate because there was no significant injury such as distress or humiliation that needed to be remedied, punitive damages, on the other hand, were appropriate here. The court awarded a further $50,000 in punitive damages. Costs were subsequently awarded (Rallysport Direct LLC v. 2424508 Ontario Ltd., 2020 FC 1115) to the plaintiff to the tune of $139,023.26, inclusive of taxes and disbursements.
The Ontario Superior Court in Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504, suggested that while a picture is worth a thousand words, an unsubstantiated claim of copyright infringement is worth hundreds of thousands of dollars in damages.
This case concerned a 2003 film, The Room, which had apparently received terrible reviews and yet, over the years, developed a following as a cult classic. In 2011, the defendants Richard Harper (“Harper”), Fernando Forero McGrath, and Martin Racicot decided to produce a documentary about The Room, entitled Room Full of Spoons. They did so, initially, with the encouragement of Tommy Wiseau (“Wiseau”), the writer, producer, director, and star of the 2003 film. Wiseau’s interest in the documentary eventually waned. Harper attempted to negotiate a licensing agreement with Wiseau for the documentary’s use of clips of The Room, but no agreement was reached. When the documentary was finished, Wiseau launched a campaign denouncing it, which resulted in a number of cancelled showings. The documentary was, however, screened at some film festivals in 2016 and 2017.
In June 2017, Wiseau sought and obtained an ex parte injunction restraining the release and promotion of the documentary, asserting that the documentary breached copyright in The Room. In November 2017, the injunction was dissolved owing to the plaintiffs’ failure to make full and fair disclosure on the ex parte motion, as the court had been misled and as the test for an injunction had not been satisfied on the evidence. The timely (or untimely depending on your perspective) injunction did, however, prevent the defendants from concluding a distribution agreement with a California-based independent film distributor. The injunction and the resulting legal process also prevented the documentary from being released in conjunction with the Hollywood production The Disaster Artist, a critically acclaimed film that adapted a non-fiction book about the making of The Room by one of Wiseau’s friends and co-stars.
After a lengthy review of the litigation history and summary of the witnesses’ evidence and testimony, the court found, inter alia, that while the documentary reproduced a substantial portion of The Room (by implication, what would likely amount to infringement of copyright), this fell within the allowable ambit of fair dealing after a consideration of CCH, and the multi-part test and factors enumerated therein.
The court also considered Wiseau’s claim that the defendants had breached his moral rights by allegedly using low-quality clips of The Room and by associating him with the documentary, which he said was artistically and personally reprehensible. Regarding the quality of the clips, Wiseau “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” (at para. 205). Regarding associating Wiseau with the documentary, the court noted that not liking how one’s self is portrayed in a documentary does not constitute a breach of moral rights; there was never any confusion that Wiseau was promoting or endorsing the documentary and the documentary does not prejudice Wiseau’s honour or reputation. As the court noted, “[t]o the extent the documentary portrays Wiseau as someone who made a terrible movie, there is nothing new about that” (at para. 209). Indeed, the court went on to bitingly say in that same paragraph 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.
The court also had no trouble in dismissing claims by Wiseau for misappropriation of personality, passing off and intrusion upon seclusion.
Having dismissed the plaintiffs’ action, in an ending worthy of a movie (though perhaps not a bad movie), the court considered the defendants’ counterclaim for damages owing to the since-dissolved injunction. At that time, the defendants had been close to finalizing a distribution agreement with a film distributor. Had the documentary been released in 2017, in particular in close connection to The Disaster Artist, the defendants’ documentary had the potential of garnering significant (for a documentary) box office revenue. The court accepted the evidence of the defendants’ expert witness of a conservative estimate of USD $660,000 as the earnings for the documentary had it been released in 2017. The court discounted this estimate slightly to account for the fact that there remained interest in the documentary so it would likely earn some revenue regardless. The court awarded USD $550,000 in damages to the defendants for the inappropriate injunction.
In a final victory for the defendants’, the court further concluded that an award of punitive damages was merited. The plaintiffs’ conduct “has been oppressive and outrageous towards the defendants over many years and in this lawsuit” (at para. 244). The plaintiffs “did their best” to prevent the documentary from being released by delaying litigation (at para. 245) and “made misrepresentations to third parties about the legality of screening the documentary” (at para. 246). The court thus awarded a further CAD $200,000 in punitive damages. This final scene may have elicited a reaction from Wiseau similar to the famous reaction of his character Johnny in The Room: “You’re tearing me apart, Lisa!”.
The author would like to acknowledge the helpful assistance of Alison Colpitts, an Associate with Clark Wilson LLP, in the preparation of this article.