Pissing Off A Movie Critic By Claiming Copyright Over A Video Review... Probably Not Smart

from the just-saying dept

Phillip Vector was the first of a few of you to point us to the current copyright "fight" that is going on between Tommy Wiseau and "The Nostalgia Critic," an online movie critic, whose real name is Doug Walker, who does video reviews of older movies. Unfortunately, the specific details on this are not entirely clear. I've asked "The Nostalgia Critic" to see the details, but haven't heard back, so the following is what I've pieced together from what's out there. First off, there's Tommy Wiseau, a guy whose claim to fame appears to be that he's made what's considered to be one of the worst movies ever made, The Room. It's been referred to as "The Citizen Kane of bad movies." It's one of those movies That is so bad that it's become a sort of cult classic for people to watch and laugh at.

So, apparently after a bunch of people asked, Walker did one of his video reviews of the movie. While it got taken down, others have put it back online. Here's the first part:

As you'll notice, in the review, he uses lots of clips from the movie itself, which he talks over and discusses (warning: it's long, and both the movie and the review get... cringeworthy often). Not surprisingly, he does mock the movie quite a lot. Apparently, Tommy Wiseau then issued a takedown. Here, the details are a bit fuzzy as the only "explanation" is that the Walker then made another video mocking Wiseau for claiming copyright infringement, but without providing details:

In that video (you have to get to about a minute and a half in before it gets to this point), Walker claims that his review was clearly fair use because it's a review, and also covered by the "satire/parody clause." He then goes on to mock the person who emailed him, who apparently was Wiseau himself using an alter ego.

Honestly, looking over the details that are available, I have two thoughts: the first is that this is not a clear cut case of fair use, as Walker suggests (even if it should be). The second, is that even if it's not fair use, Wiseau probably shouldn't have made the copyright claim... though, one could argue that it'll only act as greater publicity for his movie.

On that first one. Just saying it's a "review" doesn't automatically give you fair use rights. And there's no fair use for "satire," only parody -- and it's not clear that the review is actually a parody (or, for that matter, satire). Going through the four factors for fair use... you could make an argument either way as to whether or not it currently is fair use. It would really depend on the judge, and I'd actually guess that the sheer amount of the movie that is used would probably tilt the scales against fair use.

That said, I think this should be fair use, but it's not really clear that it is. Even so, this seems like the kind of thing that movie makers are better off embracing, rather than fighting. All the takedown has done is angered a whole bunch of people. Of course, you could argue that perhaps Wiseau is embracing the "this is such a bad movie, it's good" concept to such an extreme that he thinks the takedown will actually drive more business to the movie -- which might actually be a possibility. Whether by accident or by plan, this kind of takedown, might actually be a strategic use of The Streisand Effect to get his own movie more attention.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Jeff, Jul 22nd, 2010 @ 4:08pm

    Seriously...

    It's fair use. Period.

    By the way, the wikipedia on Tommy Wiseau has been locked due to lots of angry people editing it. They even made it say for him under his own cast:

    Tommy Wiseau as: an asshat.



    /Agree

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    RadialSkid, Jul 22nd, 2010 @ 4:15pm

    Criticism is considered a valid form of Fair Use. That's pretty obviously what this is, although an argument could be made that he "takes too much" to prove his point.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Chris Meadows (profile), Jul 22nd, 2010 @ 4:19pm

    Funny to see the review repost on YouTube, given that the Nostalgia Critic started out on YouTube before having to move to his own site due to YouTube taking his reviews down for copyright violations. Wonder how long that will stay up?

    By the way, nobody can decisively say that it is or isn't fair use. Fair use is a legal defense, and as such has to be decided by a judge using a four-factor test. People can say that they think it is or isn't fair use, but there aren't really any bright lines.

    Which is why the current copyright system is heavily tilted in favor of those who own the media, since even if everyone would agree something is a fair use and the copyright owner challenges it, the arguably fair user still has to pay his own defense costs and argue it out in court to get a declaration.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Zacqary Adam Green (profile), Jul 22nd, 2010 @ 4:19pm

    It's commentary on the original work. Clear-cut case of Fair Use.

    The major problem lies in the fact that the burden of proof is on the fair user, not the rightsholder to the material that was used. In practice, Fair Use doesn't actually protect the vast majority of people. Probably because it's only applied to anyone other than companies in the entertainment industry (who can afford lawyers) all that often in the past ten years.

    The law is so outdated.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Mike Masnick (profile), Jul 22nd, 2010 @ 4:27pm

    Re:

    It's commentary on the original work. Clear-cut case of Fair Use.


    Commentary alone does not make it fair use. You have to weigh all four factors, and I'm not convinced this would clear them enough.

    The major problem lies in the fact that the burden of proof is on the fair user, not the rightsholder to the material that was used. In practice, Fair Use doesn't actually protect the vast majority of people. Probably because it's only applied to anyone other than companies in the entertainment industry (who can afford lawyers) all that often in the past ten years.

    Sure, I agree with that as well.

    The law is so outdated.


    Again, I agree. I think this *should* be fair use. But I'm not convinced it is. And it's certainly not "clear cut."

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Jul 22nd, 2010 @ 5:00pm

    I did not infringe your copyright. I DID NOOOOT.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Jul 22nd, 2010 @ 5:12pm

    There was an earlier review that was also on the site that was done by a different reviewer (Obscurus Lupa) that was also removed by the action. Part of the original complaint against NC was that he "tampered" with the movie.

    This also doesn't seem like the first time the director has had issues with the internet and his works:
    http://worldofwardcrap.com/index.php/2009/09/02/tommy-wiseau-interview-ruled-totally-legal/

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    RD, Jul 22nd, 2010 @ 5:21pm

    Re: Re:

    "Commentary alone does not make it fair use. You have to weigh all four factors, and I'm not convinced this would clear them enough."

    Yes, they all have weight, but they do not have to all weigh equally. Its a judgement call, ultimately, but the four factors dont have to ALL be met (or in favor) in order for fair use to be declared, at least not in any case or instance I have ever heard of.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    RD, Jul 22nd, 2010 @ 5:24pm

    wierdo

    Also, Tommy Wiseau is a seriously creepy looking dude, who apparently made a 90 minute movie of him basically f*cking his (admittedly cute) girlfriend. While she was naked a lot (a plus!), having to deal with weirdo-creepo Tommy pawing her and uttering lines of dialogue that would make Uwe Boll throw a fit over "lack of quality in the product" really makes it difficult to watch (or, conversely, a must see).

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Spectere (profile), Jul 22nd, 2010 @ 5:33pm

    Re:

    "Wiseau Films" has already submitted takedowns for several of the reposts, so...yeah, he's definitely trying to wipe the review off the Interwebs.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Spectere (profile), Jul 22nd, 2010 @ 5:45pm

    I'm a Nostalgia Critic fan myself and have found this whole debacle to be a bit...odd.

    I've always wondered exactly how these Internet reviewers seem to stay afloat as long as they stay far away from YouTube. Indeed, Walker was given the boot from YouTube due to having too many takedown notices for "5 Second Movies" project. Since ThatGuyWithTheGlasses.com went up, however, there were no takedowns issued for any of the content.

    The part that I find most puzzling about that fact in particular is that all of the big studios have left him and his (ever-growing) crew alone. Walker, in particular, does tend to use many clips from the movies that he reviews to the point that they make up the majority of the review, so it's kind of surprising (to me) that an independent studio would put in a takedown notice when a large, multi-billion dollar studio wouldn't. The Nostalgia Critic character has been around for a few years now and has grown dramatically in popularity, so I would find it very hard to believe that the bigwigs in Hollywood don't know about him.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Herr Wozzeck, Jul 22nd, 2010 @ 5:55pm

    If it's a publicity stunt, it backfired greatly on him; I've come straight from the TGWTG forums, and I'm telling you that a lot of us have decided to boycott Wiseau's films. (Myself included.)

    The details are a little more complicated, and it makes it apparently obvious that it was likely more an issue of vanity than anything else. See, the e-mails that we've been sending have been replied to by the "John" of the NC's scathing sketch. So we've gone to the e-mail for the movie's website (theroom@theroommovie.com for anybody that's interested), and we've sent e-mails. The ones that have gotten replies have all gotten e-mails with English that makes My Immortal look like it was written by Charles Dickens. Seriously. As well, there was an article that came out on a magazine that added to this. Long story short, the fans have plenty of reason to believe that "John" and Tommy Wiseau are the same person.

    And that's what has us so pissed off.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    ChurchHatesTucker (profile), Jul 22nd, 2010 @ 6:02pm

    Re:

    "takes too much" is bullshit. You take what you need to make your point.

    That's just my opinion though, YMMV. Also, lawyers suck.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Jose_X, Jul 22nd, 2010 @ 7:16pm

    Suggestion: Give the movie an open license, mock it, and encourage people to create spoofs or else use it and abuse it. Take credit and get publicity. Ask for donations for the next LackLuster (Or literally block buster). partner with other people to create goofy games and related merchandise (try the endorse route).

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Paul`, Jul 22nd, 2010 @ 10:50pm

    Who is to say he didn't want a Streisand effect?

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Drew, Jul 23rd, 2010 @ 4:38am

    The clips are too long and if you compare to the original work the reviewer tempered Wiseau's work. The author's work by law is covered; and many people should be asking question DOES THE REVIEWER REQUEST (make any effort to contact in this case Wiseau Films about any clips from the movie. Now, in the case the reviewer copy clips (from the original work like DVD's) the reviewer may loose in any case dosn't matter if his reviewer is positive to spread the word about the project. The fact is that Wiseau is protected base of the copyright rules. People don't released that if the reviewer encourage his supporter to do any harm in this case to MR.Wiseau; he/ she later on would be responsible for damages. My advice to any reporter is to ask an author or copy right holder for a permission to use any clips from the original work before air it to the public; because any author may claim that the reviewer actually borrow author's work to gain popularity or create directly or interectly monnetery gain for himself by using author's original work without any permission. People should understand that any original work is covered by copyright protection and any abuse by the court will not be a winer. Again the court will probably will say that you can't copy original work from any third format without a permission from the author and that is the main issue in this case. The conclusion is that the reviewer should not argue about it just move on; the more he/she argue the worst would be for this case.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Drew, Jul 23rd, 2010 @ 4:39am

    The clips are too long and if you compare to the original work the reviewer tempered Wiseau's work. The author's work by law is covered; and many people should be asking question DOES THE REVIEWER REQUEST (make any effort to contact in this case Wiseau Films about any clips from the movie. Now, in the case the reviewer copy clips (from the original work like DVD's) the reviewer may loose in any case dosn't matter if his reviewer is positive to spread the word about the project. The fact is that Wiseau is protected base of the copyright rules. People don't released that if the reviewer encourage his supporter to do any harm in this case to MR.Wiseau; he/ she later on would be responsible for damages. My advice to any reporter is to ask an author or copy right holder for a permission to use any clips from the original work before air it to the public; because any author may claim that the reviewer actually borrow author's work to gain popularity or create directly or interectly monnetery gain for himself by using author's original work without any permission. People should understand that any original work is covered by copyright protection and any abuse by the court will not be a winer. Again the court will probably will say that you can't copy original work from any third format without a permission from the author and that is the main issue in this case. The conclusion is that the reviewer should not argue about it just move on; the more he/she argue the worst would be for this case.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Jul 23rd, 2010 @ 6:06am

    Re:

    No.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Bob Monkeyberries, Jul 23rd, 2010 @ 6:47am

    Re:

    Oh, hai Tommy!

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Liiiiiizzzzaaaaa, Jul 23rd, 2010 @ 12:37pm

    Oh, Hai Tommy.

    Nice to see your incoherent ramblings here to lol
    sad but true fact was I was about to buy the DVD to see the whole movie to see just how bad it was Oh hey guess what no $$$ for yoooou.
    also had thought about seeing the monthly viewing they have here in my city Guess what even less money for you

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Jon, Jul 24th, 2010 @ 1:11am

    If only...

    If only there was a website run by lawyers and legal professors dedicated to explaining fair (as it applies to online media) to all the arm chair lawyer n00bs.

    oh wait... centerforsocialmedia.org

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Brizzzy, Jul 24th, 2010 @ 7:20am

    @Drew Hi again, Tommy! You know, you really should stop inventing alter egos to defend yourself with. It's pretty pathetic and you have the most recognizable spelling/grammar/speech patterns (or lack thereof) in what is likely the known universe. Stop trying. Seriously. Good luck holding back the tsunami.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Unregistered Doofus, Jul 24th, 2010 @ 8:43am

    Drew, AKA John, AKA Tommy "You're Tearing Me APART" Wiseau -

    Nobody is going to be fooled by this. Also, you're wrong about almost everything you said. Of course, being someone who compares his crapfest movie to the work of Tennessee Williams, I wouldn't expect you to actually understand that.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Mandy, Jul 24th, 2010 @ 11:47am

    Re:

    Oh, Hai, Drew AKA Tommy AKA John,

    Yeah, you're not fooling anyone. Do you think this review is stopping people from buying your film? Wrong! It was GETTING people interested in buying your film. Now that you mistreated a well loved online celebrity those that WERE going to buy your DVD won't. You shot yourself in the foot.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    All of us, Jul 24th, 2010 @ 11:50am

    Re:

    Tommy, I think you should know there are people who will never forgive you for this and they don't forget.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Josh, Jul 24th, 2010 @ 11:51am

    Re:

    1. Learn to spell. It's painful to read your broken English and poor grammar.

    2. He doesn't NEED to make contact with anyone or make requests to review any movie whatsoever. I seriously doubt Siskel and Ebert did so back in the day.

    3. Parody and Commentary are two of the most protected uses of Fair Use.

    4. If this was brought to a courtroom (which the NC's fans, including myself, are recommending), Wiseau would be laughed out of the courtroom.

    5. Have fun in the courtroom... Tommy.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Herr Wozzeck, Jul 24th, 2010 @ 11:59am

    Re:

    Oh Hai Tommy.

    Who do you think you're fooling? Even a woodchuck can tell that it's you.

    And honestly? You shot yourself in the foot. As a result of all this, I will never, EVER buy any product of Wiseau Films, even if you came up to me with a red hot poker and threatened to burn my eye out if I didn't. And many people have sworn it off in similar manner.

    And too bad for you, because the NC actually has a following. A pretty big one, too; TGWTG gets at least 100,000 hits per day. You know how many people that is that could have watched your movie? But no, you just pissed them off.

    I'll quote "Wicked" on this one:

    I hope you're happy. I hope you're happy now! I hope you're glad that you have lost your cause forever! I hope you think you're clever!

    (Oh, and go learn how to write English.)

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Kathy, Jul 24th, 2010 @ 5:43pm

    Fed up with Wiseau

    Don't know if this is ego or an act or a massive state of denial that he doesn't REALLY know why people come to see this movie....but it's officially gotten old, IMHO.

    But, there has to be something done about the parameters of this "Fair Use" law. Because right now it's not worth the paper it's printed on if Wiseau can claim his rights were somehow violated over this.

    If "Ignorance of the law is no excuse" then "This is allowed under law unless someone complains" doesn't work either.

    In the meantime, there go my plans to ever see "The Room" in the theater.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Kathy, Jul 24th, 2010 @ 6:02pm

    Re: "Drew"

    "The Author" should understand the expression "Don't sh*t where you eat".

    And how is NC's review going to hurt the movie, exactly?

    You really think that the people who have seen it already will suddenly realize, "Wow, this is bad. All those times I saw the whole thing I didn't realize it but now I'll never go back"? Or that people who haven't gone but want to will think, "Well, it's not all the movie - or the audience interaction with it - but it's enough for me"?

    You're - excuse me, "The Author" is - probably sitting around crying that he can't slap Rifftrax with a cease and desist on the commentary track as well as the sample they had on YouTube - never once stopping to think of how many more copies of the DVD were sold because of it.

    All of this is going to cause "The Author" to lose money if not disappear into oblivion...but only because in pissing off people "The Author" has metaphorically slit his own throat.

    Congratulate him for me (the next time you're passing a mirror).

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Jul 25th, 2010 @ 4:51am

    Character of the use: transformative, for commentary and criticism.

    Proportion of the work: the video is 10 minutes long and only a subset of this is clips from the original. So, say 1/12 or less.

    Effect on the market for the work: well, it's a bad review, so maybe there is a negative effect. But fair use analysis is only concerned with one type of negative effect: if the alleged fair use substitutes for the original in the marketplace, or for licensed/merchandised related works. The review is clearly not a substitute for the movie or anything similar. As one judge explained (emphasis mine), "The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original -- any bad review can have that effect --but whether it fulfills the demand for the original." (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).

    Nature of the copyrighted work: fictional (bad for fair use), published (good for fair use).

    Three factors in favor, one half-and-half.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Jul 25th, 2010 @ 7:52am

    I'm still laughing at the last comment, not because of its content, but because this site labels any unregistered user as "Anonymous Coward." How would an online pseudonym that is not linked to my personally identifying information be different? It's not as if you ask for my SSN and scanned birth cert during registration..

    Anyway, a lot of the Fair Use debate has been hashed out already, but what people are forgetting is that it hasn't gone up for judicial review yet. The purpose of a copyright complaint is when it MIGHT violate your rights, and there is certainly enough ambiguity here to make it debatable (why just look at all the debate so far!). The next step, if Doug Walker ever grows some balls and files a counterclaim instead of just whining, will be for Wiseau to apply for a legal restraining order which would mean he would have to fervently believe Doug's video was not Fair Use.

    It hasn't gotten anywhere near this phase yet. Even if it did, it wouldn't be up to which side wins the most internet arguments, it would go before a judge. Before anyone else spends a few dozen hours digging through the legal journals (or copying wikipedia references without reading them), get a little perspective and think about what the process actually involves. So far we have a complaint, a website responding by takedown, and a childish single-sided straw-man rant by Doug.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Jul 27th, 2010 @ 8:16am

    NC fans are the biggest butthurt dorks I've ever seen. Thank goodness they won't be coming to any Room showings!

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Mike, Dec 20th, 2010 @ 5:05pm

    The fact of the matter is that NC is infringing copyright. His "reviews" are not reviews at all, but summaries of the movies that are simultaneously made fun of. NC should look up the definition of review. He's a hack that has a huge following of idiots watching his videos.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Shaun Baker, Aug 15th, 2013 @ 7:59am

    correct answer is...

    Who gives a shit

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This