The Nostalgia Critic vs. Tommy Wiseau Debacle

It’s common for reviewers and their subjects to butt heads over copyright issues. Reviewers often use portions of copyrighted works in their reviews and, also at times, say unflattering things about that content. With emotions running high and, in some cases, lots of money at stake, it’s not surprising copyright gets flung around.

Such is the case with the recent spat between Doug Walker, better known as The Nostalgia Critic and Tommy Wiseau the producer, executive producer, director and star of the movie “The Room“.

Walker, as The Nostalgia Critic, specializes in doing comedy/parody reviews of bad films and did such a review of “The Room” for last week’s edition of the series. Unfortunately, unlike most of his other reviews, this one ended up being removed following a takedown notice filed by someone identified as “John” at Wiseau’s studio.

That, in turn, has kicked off a firestorm. The Facebook page for “The Room” has been flooded with angry posts as fans of Walker have been vocalizing their frustration at Wiseau and forum postings at related sites have taken up the issue as well.

Walker, who recommended the movie as a “So bad it’s good” film in his review, has produced a follow-up video parodying both Wiseau and “John”, the person who Walker says filed the takedown (video embedded below).

So what does this mean for Wiseau, Walker and other critics on the Web? The answer isn’t very clear.

What Happened

Walker, using his character The Nostalgia Critic, posted a review of the movie “The Room” last week. The review was an attempt to riff on the bad acting in the movie, plot holes and other issues in the infamous film.

Sometime after its posting, a representative named John from Wiseau Studios filed a takedown notice against the film, ordering its removal from Blip.tv and Walker’s site. Walker, in turn, cited fair use and decided to create a parody video mocking Wiseau and John.

Once fans of Walker learned of the removal, they’ve begun to attack Wiseau, including postings on the movies Facebook page, IMDB page and, in at least some cases, by sending emails to John directly (Walker provided the email address repeatedly in his second video).

At least one commenter who says he received a reply from John said that he responded to the controversy saying that:

Thank you for your E-Mail but the clips of “The Room” has been alter. It is not the issue what someone is saying about it but you can’t just alter someone original work. He or they should ask for a permission to use the clips and we will give them the best quality possible; another issues are that you can’t just put other images other someone work because you feel like it; you have to ask for a permission first.

Wiseau has long insisted that “The Room” is a black comedy, calling it as such on the movie’s Facebook page, and not a poorly-made drama. Several other responses to the firestorm have indicated objections not to the negative review but to “misleading” elements of it.

This, in turn, has kicked off a fair use debate with most of the Web believing that Walker had such protection in making his movie though at least some are less certain.

Looking at Fair Use

The question on most people’s mind is whether or not Walker’s review was a fair use of Wiseau’s film. As I’ve discussed before, relying on fair use is not a cut and dry thing by any stretch and it has to be decided in a court, by a judge and/or jury and after a lawsuit takes place.

As such, I am loathe to make any predictions about fair use outcomes and certainly don’t claim to know the answer.

That being said, there are several strikes against Walker. First, his review was not short by any stretch. It was almost half an hour-long and included 19 minutes of footage from “The Room” (about 20% of the film), though some of that was replaying the same clips repeatedly and much of it with Walker’s voice over.

Also, though attribution is not necessarily a requirement of fair use, the title card on this work did not mention who owns “The Room”, which is out of step for Walker’s usual practice. Also, the review did cover the plot of the film from beginning to end, making it a pretty thorough summary of the film.

This has led at least one commenter to conclude that Wiseau’s camp was within their rights to demand removal of the content. But there are other elements to consider.

For one, Walker’s review was highly transformative (used to create a different artistic expression) as the footage was combined with both voiceovers and jokes as well as original footage from Walker. Generally, the transformative nature of a use is considered single most important element of a fair use defense.

Furthermore, Walker was engaging in both parody and commentary, two of the most protected kinds of speech on fair use issues. Finally, since “The Room” has been published and distributed for 7 years, it receives less protection from potentially fair uses than unpublished ones.

In short, though elements of Walker’s use may hurt his case, there are clearly some very strong fair use elements on his side. His case isn’t necessarily a slam dunk, no fair use case is, but I would say it is solid.

Still, the bigger question may not be whether or not the takedown was proper, but rather, whether it was wise.

My Thoughts

Personally, I have several problems with this takedown, including the following:

  1. Copyright Not Correct Venue: If Wiseau’s camp truly is mostly concerned with the review posting misleading information, that isn’t necessarily a copyright violation. It could be a defamation issue, but using a copyright takedown on a defamation issue is generally very poor form.
  2. Fair Use Issues: I outlined them above but Walker, at the very least, has a strong set of fair use arguments. He may not be guaranteed victory in court, but if there are such issues than a takedown is ill-advised, especially following recent rulings in the Lenz v. Universal case which put the burden on the filer of a takedown to respect fair use.
  3. The Streisand Effect: The takedown has done very little, if anything to actually stop the review from being seen. Fans have already posted copies on YouTube and other sites and more attention has been drawn to it than if it had just stayed up.

If someone had approached me about this takedown, I would not have done it. It is that simple. There was simply too many issues with the takedown for me to have ever felt comfortable doing it.

That being said, I don’t think Walker is completely innocent either, at least in one area. Though I’m glad he was able to laugh at the situation and make a funny parody (though you might not get some of the jokes without seeing the original review), the way he gave out the email address repeatedly seems to be inviting others to engage in legally dubious behavior, such has harassment.

In the end though, I almost suspect that Wiseau’s camp did this on purpose, knowing it would create a controversy and a lot of attention for the film. It is such an obvious misstep that Walker’s other videos haven’t had any issues and even longer-format reviews, such as the recent review of the Star Wars prequels (which run 70 minutes for each movie), remain online.

Hopefully, this matter can be resolved. No matter the reason for the takedown, there is little reason for this to continue.

Bottom Line

Simply put, this takedown was a bad move. Though I can see how reasonable people can and will disagree on the fair use issues, I don’t think there’s much room for debate that it was a bad move in terms of PR and resolving the issue.

There are times where a takedown notice is the flat-out wrong tool for the job and this was one of them. To use it was misguided.

Hopefully this can eventually be resolved peacefully but that doesn’t seem very likely. In the meantime, we’ll probably get some great parodies out of it…

Video

(Note: Some NSFW Language)

28 comments
Yojiro
Yojiro

It's always interesting to read about cases like these but sad that these things never go away since Fair Use is a vague slippery slope.

Wiseau Productions is very overzealous when it comes to things concerning this movie.

Doug Walker was not the only person targeted, several (if not all) music producers were also hit with copyright takedowns for creating parody or spoof songs that had a few popular lines from the movie in them and these songs were not even monetised in any way, them being songs they barely had any movie content in them, the music was entirely self produced and only lasted about 3 minutes as opposed to a long review.

Like in this case these takedown notices came from a certain John and in some cases this John even left comments on aftermath youtube videos about the takedown, he would claim they were illegally making money off of their movie while that was quite obviously not true (his broken English does not help either).

It's always painful to see people or companies destroy their own image in this way.

Aaron
Aaron

Couple of things. First, you're right in that fair use is fairly open to interpretation, but this case seems fairly cut and dry in favor of Walker. Also, you take issue with Walker giving out the e-mail, essentially inviting people to bombard their inbox. I do not take issue with it. If they were going to file a copyright claim they had no business filing, then they should have to live with the consequences of those actions.

Well Wisher
Well Wisher

I just have to say that even 3 years after this was posted, that this is still an incredibly relevant article. I recently became a Nostalgia Critic fan, and never watched the Tommy Wiseau Show episode until today, I just had to do menial research this to find out what exactly happened and this article, luckily cut down the time I had to waste hunting the info down. This answered everything and is well written. Good Work! (And no, I am just a fan of well written articles, not an English teacher.)

Nicole Arthur
Nicole Arthur

i did not hit her! i did not......oh hai mark! lmao

Alexander of Hollywood
Alexander of Hollywood

"There are times where a takedown notice is the flat-out wrong tool for the job and this was one of them. To use it was misguided."

Tommy Wiseau doing something "misguided"? Why, I can't even imagine such a thing!

But I'll take your word for it. It seems like you are the expert, Jonathan.

Jonathan Bailey
Jonathan Bailey

Though I respect your views and deeply regret that you feel I am tearing you apart, I have to clearly and articulately explain my viewpoints and cover this controversy in the most...
Oh Hai Mark!

Jonathan Bailey
Jonathan Bailey

Though I respect your views and deeply regret that you feel I am tearing you apart, I have to clearly and articulately explain my viewpoints and cover this controversy in the most... Oh Hai Mark!

Jonathan Bailey
Jonathan Bailey

Though I respect your views and deeply regret that you feel I am tearing you apart, I have to clearly and articulately explain my viewpoints and cover this controversy in the most...

Oh Hai Mark!

kregg
kregg

You're tearing me apart, Jonathon Bailey!

kregg
kregg

You're tearing me apart, Jonathon Bailey!

Jonathan Bailey
Jonathan Bailey

Just to be clear, the 70-minute reviews were not by Walker but Red Letter Media, a different company.

Jonathan Bailey
Jonathan Bailey

Just to be clear, the 70-minute reviews were not by Walker but Red Letter Media, a different company.

pekka
pekka

The 70-minute review of Phantom Menace is made by Doug Walker? What?

pekka
pekka

The 70-minute review of Phantom Menace is made by Doug Walker? What?

guest
guest

theroom@theroommovie.com I think is the email address. It's on "The Room" website

guest
guest

theroom@theroommovie.com I think is the email address. It's on "The Room" website

Claymaymaniac
Claymaymaniac

What address do I send my concerned email to?

Claymaymaniac
Claymaymaniac

What address do I send my concerned email to?

Guest
Guest

I think Wiseau would get laughed out of the courtroom

Guest
Guest

I think Wiseau would get laughed out of the courtroom

Jonathan Bailey
Jonathan Bailey

Just wanted to say thanks for letting me know the article was useful. It's not often I get such feedback on older works and really appreciate it!

crutch
crutch

Dude you are awesome!

crutch
crutch

Dude you are awesome!

Trackbacks

  1. [...] decent argument can be made that Walker’s review of The Room itself might be questionable in terms of proper copyright [...]

  2. [...] Parody and commentary are highly protected forms of free speech, one reason the satirists at “That Guy With the Glasses“¬†are allowed to post parodies and reviews using substantial amounts of footage (in addition to the transformative nature of the reviews). [...]

  3. [...] The two were related considering that the review shows we enjoy typically follow a long review format that rely on showing clips from the film, describing the whole plot and making fun of the movie the entire time. This has lead to at least one copyright controversy over their reviews. [...]