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

After 30,000 views in only 16 hours, Jeffery's Harrell's poignant commentary on FCPX was removed from Vimeo.

UPDATE: 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.

But why? There are thousands, if not tens of thousands of videos on Vimeo that infringe on copyrights. (Hello, all those wedding superstar filmmakers you follow and their wedding videos with copyrighted music?) I think the answer is simple. It would appear that Apple wanted it down. (Given Google’s somewhat enmity with Apple, and given the fact they’re Google, I think Apple may find it more difficult to strong-arm them from removing it from YouTube. The Scala and Kolacny Brothers on the other hand could request to have it removed and YouTube would have to comply.) Just seems odd that this is the one to be removed.

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 bit.ly/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.

This could be the beginning of the end of Vimeo’s laissez-faire stance on copyright-infringing content. Are you ready for that?

“No Title for This”

As of this writing, Jeffery’s YouTube video is still up. Watch and enjoy.

If you can’t see this video in your RSS reader or email, click here.

Excerpt from Steve Jobs’ 1997 WWDC Keynote

The video below was not the excerpt Jeffery uses, but watch it (especially from the 1 minute mark on). In context of the FCPX debacle, it is eerily ironic.

If you can’t see this video in your RSS reader or email, click here.

17 thoughts on “Vimeo’s Removal of Jeffery Harrell’s FCPX Video and What That Means to You

  1. I feel like everything about the parody video in this article is unnesesary. It’s a parody video about a huge company and it’s new program on a website that has features on that huge company’s new program. Not a big deal

  2. I don’t think Vimeo was wrong to remove it, either, and I don’t think it was a conspiracy on Vimeo’s part to remove it. I’m guessing that other videos do get removed, we just don’t see them because they never hit our radar. This video, however, hit a lot of people’s radar, including the folks at Vimeo who were tracking the FCPX fun last week. But it’s a passive activity at this point, with things getting removed if you get caught or if a Vimeo staffer happens to watch your video and notice that you used a song and likely didn’t have permission. This video just happens to be one where the stars aligned for us and for Vimeo to see it, and it had a pretty clear violation of the terms.

    The test, then, would be for Jeffrey to re-author the video with a legit song, and to see what happens with it, then. I agree that the use of the Apple content is fair use, but ultimately it’s Vimeo’s (and Apple’s) interpretation of fair use that will matter.

    All that said, to your point, not getting caught doesn’t make it legal or right. As professionals creating content that we hope people legally use on the output end, it’s hypocritical of us to not do the same with regard to the content we are bringing in. That’s a basic Golden Rule philosophy that sadly too many people don’t apply in their professional (or personal) lives.

    1. Well said David. But, for the record, there are a number of videos with significantly larger views that are not removed. My buddy David Robin made the famous “Dirty Bit” music video song that has over 760K views ( http://vimeo.com/21826774). Vimeo wasn’t wrong to remove it, but there clearly is not any consistency. Maybe it’s just based on which copyright holders bark, and maybe the Scala and Kolacny Bros. song holders did.

  3. What has happened with Facebook and YouTube is eventually going to happen with Vimeo – it’s not a matter of “if”, but “when”. I think there is some huge denial going on about it within the wedding film industry. And, I will also say that there are many overrated clips out there by the “top pros” in the business which would not have the same flair if they hadn’t used popular music. The music makes the clip, in too many circumstances, and unfortunately it also gives people who do use music without permission a competitive advantage – and that HAS to change, because some of us try to actually obey the law.

    The times, they are a-changin’ – don’t shoot the messenger.

    1. You make a very interesting point about the music Bill. I have seen a number of clips that would not have the same punch w/o the copyrighted song used. Frankly, even this FCPX video would feel and look completely different w/o the inference to the SOCIAL NETWORK trailer. I think particularly the popular concept videos we see a lot of. They’re definitely fun, but it would be quite a challenge for those same wedding filmmakers to make equally engaging concept videos with original scripts and music. That would be something.

      1. Thanks Ron. Also, just to clarify, I’m not talking about David Robin’s video – it is easily considered a parody video and as such is fair use. But it does skate that line – anything short of comical and it’s not going to be as easy to write it off as parody.

        1. I actually don’t think Robin’s video constitutes a legal parody as it relates to Fair Use. The video itself is funny, and it does make some similar allusions to the song’s original music video. But the Robin video in and of itself it’s not really a parody of the song. My understanding is that fair use comes into play if the object of your parody is that thing whose copyrights you would normally be infringing. It’s much easier to show when parodying a person, video or film. Much harder with music. I’m no attorney, so I can’t say for 100% sure I’m correct. That’s just my interpretation.

    1. This was a case where the person who uploaded the video didn’t own it. The recorded off TV or some other way, then uploaded as their own content. That’s why it was pulled. YouTube is filled with videos like that. Sometimes the copyright holders request the removal (as in this case). Sometimes they allow ads on it and make money from it. In any case, I saw that video and thought it was very funny. What I found interesting is that a show like Conan, which is geared towards the average Joe, would make a spoof video about something that really only professional editors would get.

      1. I found that very interesting as well. One thing about youtube & vimeo is that I am not sure how you avoid getting flagged when using licensed music? All of my wedding films that I posted on YT use music from TSM or WithEttiquette, I still get the flag that I have copyrighted music on it. it doesn’t pull it, just adds the link to buy the song.. which I am Ok with because I want to make sure the musicians get supported. i did submit a dispute ticket just to see what happened, i told them I purchased the rights and have the reciept if they want to see it. no response. like i said.. doesn’t bother me just not sure how they will know if something is licensed or now.

        Dan

        1. That sounds like something you definitely should bring up with With Etiquette. You shouldn’t have t have a song you legally licenses flagged like that.

  4. >>> Vimeo’s Removal of Jeffery Harrell’s FCPX Video and What That Means to You <<<

    Anyone who hasn't been living under a rock knows it's risky to post public videos with copyrighted music.

    And if you have a high-profile, potentially viral video, it's like putting a sign on your back that says "Kick me!"

    This is all that Jeffery Harrell’s video means to you, and you should have known it already.

  5. I just had a video removed from Vimeo for copyright infringement. It was my daughter, 3 years old at the time, dancing in her car seat to “Don’t Cha” by the Pussycat Dolls. I want to say the video was 30 seconds or less, but I can’t be sure because I put it up over 3 years ago and I just don’t remember. I mean, seriously? It was a freaking home movie put up for family to view. I wasn’t trying to make money off it. Is that considered Fair Use? I want to appeal just to get the video back. I think the whole thing is a bit ridiculous.

    1. I can understand your frustrations Katrina. In answer to your question, no, what you described does not fall under “fair use.” If you haven’t already done so, check out my blog post about “How to legally use music in your videos.” You can access it at http://bit.ly/musicinfilm.

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