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)