Vimeo’s Removal of Jeffery Harrell’s FCPX Video and What That Means to You

My original blog post I assumed Apple legal made Vimeo take the video down. According to this tweet, it was a music clearance issue. I originally thought Apple had Vimeo remove the video. Mainly because I’ve never, ever seen Vimeo take down a video due to music clearance. Not saying they haven’t, I just never saw it. So, why all of a sudden now? Maybe the music holders of this particular song didn’t like how Jeffery used it and asked for it to be removed. I guess it’s just a “fishy” coincidence that of all music copyright-infringing videos on Vimeo to be taken down, why this one? Anyway, read the rest of original post with that in mind.

Yesterday was quite a day for Jeffery Harrell. An outspoken, funny, profane and pissed off Final Cut Pro editor who made a little video. A whimsical, simple, yet poignant commentary on the frustrations he (and many thousands of others) have had with Apple’s release of Final Cut Pro X (aka FCPX). Set to the Scala and Kolacny Brothers cover of Radio Head’s “Creep”, the video was a parody on “The Social Network” trailer using Apple and FCPX as the subject matter. It’s a simple video really. Just a screen recording of a user trying to use FCPX and running into road blocks. At the end he gives up and trashes the program. Periodically in the background we hear excerpts from Steve Jobs’ 1997 WWDC conference closing keynote address. It was quite a brilliant video. Simple in execution. Funny. Poignant. Filled with little nuances (e.g. when a “Help” search in FCPX for “OMF” turns up “No results” he replaces the “F” with a G. Classic. Or the sound of the Trash emptying over black at he end. Perfect.) Yep. The video was terrific. So terrific in fact that in just 16 hours it racked up over 30,000 views on Vimeo. The first and only video Jeffery had on Vimeo went viral. And then… it was gone.

That fact that it was removed is something you all should pay very, very close attention to. Here’s why.

Technically, the video does violate Vimeo’s upload guidelines. It contains content that Jeffery does not own (both the song as well as the audio and video clips from the Apple WWDC). Vimeo’s policies aside, whereas I don’t think the use of the song falls under Fair Use, the use of the WWDC clips as well as the soundbites clearly does.

Fair Use is kind of a gray area in copyright law, but one of the purposes of it is to allow creators to use other people’s copyrighted works in parody, education, criticism, or news reporting. This clearly falls under that category. (I don’t think the song does because Jeffery isn’t making a statement about the song, he’s making a statement about FCPX. If he’d used a legally licensed song, I think this video would fall 100% within the fair use doctrine). Now, Vimeo’s guidelines do say, ”You must own or hold all necessary rights (copyrights, etc.) to the videos.” So the question is, does fair use count as “holding necessary rights.” We as content creators in essence DO hold those rights, so one could make that argument. However, I think the loophole here is the song. Because of that, Vimeo has a case to remove it. So it did.

Here’s why this is important for you filmmakers, photographers and other content creators. Many of you have dozens, if not hundreds of videos on Vimeo. Videos that may in some way infringe on other copyright holders’ content. I have never seen a video taken down from Vimeo for copyright reasons. I’m not saying they never have, I’ve just never seen it. Could the pressure from copyright holders finally be breaking them down? (Facebook for a while has already implemented algorithms to prevent copyright infringement. And YouTube frequently does remove copyright infringing videos if the copyright holders request it.) This removal could be the beginning of a precedent. What would you do if your portfolio of work was completely erased tomorrow?

So, if I were you, I’d start to re-think you video strategy if it includes excessive use of copyrighted material (heck, even if it doesn’t):

If you’re a wedding filmmaker, create your highlight videos with legally licensed music. (Check out my “Music in Film” blog post for a list of some popular sources at /musicinfilm). Start uploading those to Vimeo and leave the copyright-infringing clips to the clients’ personal DVDs. To be frank, we all really should be striving to be on the up-and-up when it comes to the use of any other artists’ copyrighted work, music, images, or otherwise.
Make sure all the videos you currently have on Vimeo live online someplace else.
Get a better understanding of copyright law and how it applies to content.
Consider using self-hosted web space for your videos (vs. video sharing sites). This will cost you more money, but consider it insurance from the possibility of having hundreds of videos removed. (Of course, if you keep your videos legal, you don’t have to worry about that anyway).
The Digital Landscape Changes Everything

The digital landscape has changed the way content is delivered and consumed. It is becoming increasingly common for digital delivery to be the main or ONLY form of delivery (Apple is leading the way by doing away with installation CDs. Movie sites like Netflix and Hulu are also growing in popularity, not to mention iTunes). We’ve already seen what happened in the music industry. Because of this, those content creators will be more protective of their rights since digital delivery will grow to be their main revenue source.