Vimeo Sued Over Lip Dubs

66 Comments

Lip Dub – Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

A few years ago, video-sharing site Vimeo hit the big time with a viral video of its employees lip-syncing along to Harvey Danger’s Flagpole Sitta after work one day. Now Vimeo and parent corp IAC are coming under legal attack for promoting the creation and distribution of these so-called lip dub videos in the form of a suit filed by Capital Records, which is seeking retribution for what it alleges is copyright infringement.

The complaint states that Vimeo “induces and encourages its users to upload…audiovisual works,” which it then disseminates virally throughout the Internet. According to Capitol Records, the company’s staff actively participates in “making, selecting, commenting on, and at times choosing to delete” audiovisual works, including those featuring its own copyrighted recordings.

Earlier this year, Universal Music Group lost a copyright infringement suit against another video-sharing site, Veoh. It claimed that Vimeo Veoh didn’t do enough to protect copyright owners from users uploading their material. Veoh argued that it was protected under the DMCA “safe harbor” provision, which says video sites are not liable for content that users upload, so long as they take that content down after copyright holders alert them to the material.

The difference, according to Capitol, is that not only has Vimeo not tried very hard to protect copyright owners, but it actively encourages infringement. Capitol alleges that Vimeo’s use of copyrighted material is “not an accident,” claiming that the web site contains “a massive amount of content that features, and draws most (if not all) of its appeal from, the use of copyrighted works.” As a result, according to the complaint, Vimeo is not only aware of copyright infringement happening on its system, but “actively promotes and induces that infringement.”

It’ll be interesting to see whether using copyrighted music for lip-synced videos will be considered fair use on video-sharing sites, especially as recording companies increasingly separate their own professionally produced videos on sites like Vevo from user-generated mashups and lip dubs on YouTube (s GOOG).

Complaint Capitol v Vimeo

66 Comments

Montoya

This comments thread is full of terrible analogies, and more importantly, I don’t even think you need an analogy in this situation. The problem with this video is not copyright (or not just copyright), but licensing. This video clearly promotes the Connected Ventures family of companies and that makes it commercial, even if they don’t make any money directly from it. Companies pay licensing fees to use copyrighted content in promotional materials… that includes online videos. I don’t think there’s anything wrong with individuals making lip dubs and uploading them to sites like Vimeo just for fun, but with this specific video, I think the folks at CV made a huge mistake.

And I want to mention that there are a lot of indie artists that would gladly have given their song to be used this way, no licensing fee required, but then I doubt this video would have been so successful.

arcwylder

I haven’t heard the name Harvey Danger in years.. I would never have recalled them if I hadn’t stumbled upon this article. Same with countless others. If they like what they heard they aren’t going to rip the video from Vimeo to get their newfound need for a ‘Harvey Danger fix’, they are going to go hunt it down elsewhere on the internet or on CD used or new. If they bought the CD used, mind you..the label won’t see a dime. If they find somewhere else on the net to get the whole CD for free, they won’t see a dime. Perhaps they will go to itunes/emusic and actually give their whole catalog a chance and buy some songs. It can be any number of these things from this exposure…(which IS free marketing and you know it).

The problem is, the controversial topic of their being lawsuits involved is inadvertantly free viral marketing as well… it’s just an unnecessary evil that might turn some off from the band and label (even though it’s not the band’s stance). Just let it be and mabe some of these bargain bin CDs that people forgot all about will start making some sales and new fans without even having to invest a dime to make it happen (i.e. no laughable mega smash hits of the early 0’s infomercials to sell the band’s one biggest song)

Earnest

I think a more apt analogy would be that you had a business renting your car out and your neighbor borrowed the car when you didn’t have it rented out. You didn’t lose any actual money, but you lost the amount that person might have paid you had they rented it like everyone else. However, while they were out and about, people saw the car, liked it, and inquired about the ownership and came and rented the car. It doesn’t matter that you gained a new renter– it’s still annoying that someone came and borrowed your car without your permission and without paying the same rate as everyone else.

What you might do is figure out a neighborly way to resolve the situation, but you shouldn’t feel obligated to do so.

uglywomansguide

If we don’t protect artistic creation, what’s going to happen to new creative endeavors? What is there to keep artists creating new work if they have no financial benefit to do so?

What if you spent 10 years restoring a vintage car to perfect condition and then your neighbor took the car out for a joy ride. And when they returned the car, you approached them and said, “Don’t do that again. That’s MY car.”

And the neighbor responds by saying, “Hey, I’ll let you have that car six days a week. I just want to use it for a couple hours on Sunday afternoons. I’m not hurting you any. I’m not costing you any money. You don’t even use it then.”

This arrangement would NOT be acceptable to most folks but this is a GOOD analogy for explaining the practice of “borrowing” creative with no recompense to the work’s original owner.

We have to protect copyrights in this country. Trust me, the artistic types and the writers (like myself) are the original starving artists.

Rose Thornton
http://www.uglywomansguide.com

Bill Cunningham

Rose –

That’s a completely inappropriate analogy here. A better one would be that the neighbor took a picture of the car and that picture sold to a magazine featuring hot cars.

Then the magazine offered you (the one who restored the car) an interview along with more pictures of what makes you different and special in the world of car restoration.

Then – people seeing your work – paid you to restore their cars, or invited you to speak at car rallys.

You see where I’m going with this, right?

This is the analogy of what is happening…actually has already happened with new media and social networking.

Lo

This is so stupid. They were singing along to and dancing with a song they all apparently enjoyed. If anything, Capitol should be thanking them for reminding the world that the song was still out there. Kind of nostalgic hearing an old song like that… it almost makes me want to go download it…

But, since Capitol has pissed me off, I’m not going to.

Aladdin

As someone who’s got a lib dub at stake on Vimeo, I would like to make my voice heard on this matter:

Capitol records is a terrible branch of a dying industry. Hopefully when all of the labels consume themselves, they will shit out a much smaller, more refined way of giving music to us.

After reading this article I went to their website, and checked out the “Free Stuff” section. Of the 9 artists listed, I got a 404 page for the Decemberists, a “reported attack site” (thanks Mozilla!) from Lily Allen, and HTML banners for everyone else… except Depeche Mode, whose “Free Stuff” page links you to their $4.99 iPhone app (plus banners).

All I’m saying is, Capitol records clearly doesn’t care about the people who buy the records. Or they’re just lazy about using their website; maybe they don’t realize that it’s face of their company now. Either way, it spells doom for Capitol.

Kevin

I’m still waiting for someone to explain to me why exactly anyone would want to sue someone else for giving them free advertising. Between the thing last year when they yanked music videos off of YouTube and now this, I’m just baffled: where exactly are the labels losing money here, again?

Rob

The most telling part of all of this is that it took three years for Capital Records to find this video. 2.2 million views later, they finally discovered it. Is there any wonder these record companies fail at Internets so often?

a.f.mayo

agree completely. if they had figured it out just when it came out it would just be stupid. 2 years later… 2.2 million views… stupid and embarrassing. don’t they have anything better to do with their time? like promote their artists?

hmmm

What I see is they need to be sued for age discrimination and sexism.

All their employees are 20 year olds?

And I’m sure hired those cute girls becuase they were the best coders.

LK

yeah, people mentioned that three years ago but they have since hired old folks

Bill Cunningham

I would think this would be easy to track any spike in sales of the MP3 of that song based on the timeframe of when the video came out.

Part of what Capital needs to do to win its suit is to show damages – that they actually lost revenue due to the infringing video. If they can’t show that, well the judge is going to have a much tougher time making a decision and it could get appealed to a higher court either way.

relaxing

Mikee – internet radio still sends money to the labels.

Support indie artists!

Mikee

Shit like this is exactly why I stopped buying CD’s year ago. Internet radio ftw.

How many more customers will you chase away, Capitol?

relaxing

Mikee – internet radio still sends money to the labels.

Support indie artists!

Daffy Duck

Well, I guess I’m never buying capitol’s music again.
Jackasses.
Leave Vimeo alone!

blank

I think the record labels should sue people who sing in their cars when others can hear their music.

They should sue fans who sing at concerts with the band.

fucktards.

SPhibbs

This is a great example of the continuing power shift towards artists and away from record labels. Instead of innovating from the bottom up, they are forced to penalize (sue) from the top down, showing how obsolete they and their businesses models truly are.

The money for artists has never been in their studio efforts and record sales, it has been in the touring and merchandise and Lip Dubs only help build their brand awareness. The bigger their influence, the larger pool they can draw from to make an honest living without selling their soul to the devil.

You can find an active lists of Capitol Record artists to boycott here – http://www.capitolrecords.com/home/artists.html

milowent

of course videos like this are in a legal grey area. the copyright holder can get them taken down if they WANT, but they look incredibly stupid in cases like this one. as the comment above me notes, these types of videos actually help sell songs.

i like how youtube has allowed copyright holders to leverage these kinds of video by having a pop-up allowing watchers to link to itunes and buy the songs used (like in JK Wedding Dance, which was a real boon to woman-beater Chris Brown)

i would like capitol to prove that they lost any revenue from this video or any lip sync video uploaded to vimeo or any other site. the only people profiting here are the attorneys.

famous case in point, the “hey clip” on youtube uploaded in the summer of 2005 ( http://www.youtube.com/watch?v=-_CSo1gOd48 )
a very early youtube hit (now at over 28 million views) — more kids now know and love the pixies then ever did when this album was released in 1989.

conclusion: Capitol Records – Obsolete Idiots.

insider

the digital revolution is a good many years old now. there is absolutely no data whatsoever to support this oft-repeated claim (that piracy or whatever you call it is actually good for the music business)

in fact, just the opposite is true — there are reams and reams of data showing that the business of being a recording artists is basically being destroyed. dollar and unit volumes sales are plummeting. maybe that’s inevitable. but can’t we PLEASE stop repeating the patently false silicon valley ideological nonsense that if only artists and record companies would open their eyes their businesses would prosper from all the piracy

Bill Cunningham

http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf

@Insider – here’s the Harvard study. From back in 2004.

From the abstract:

A longstanding economic question is the appropriate level of protection for intellectual
property. The Internet has drastically lowered the cost of copying information goods and
provides a natural crucible to assess the implications of reduced protection. We consider
the specific case of file sharing and its effect on the legal sales of music. A dataset
containing 0.01% of the world’s downloads is matched to U.S. sales data for a large
number of albums. To establish causality, downloads are instrumented using technical
features related to file sharing, such as network congestion or song length, as well as
international school holidays. Downloads have an effect on sales which is statistically
indistinguishable from zero, despite rather precise estimates. Moreover, these estimates
are of moderate economic significance and are inconsistent with claims that file sharing
is the primary reason for the recent decline in music sales.

Martin Kliehm

Oh, when will Capitol (or @Content_Producer) ever understand that lip-sync videos and sampling actually promote their bands and help selling the tunes, especially since the artist’s name and song title are explicitly mentioned here? I (and 2.2 million other people) would have never heard of a band called “Harvey Danger” without this video that made my day uncountable times BTW! Embrace this free promotion, do not sue the creators!

insider

the digital revolution is a good many years old now. there is absolutely no data whatsoever to support this oft-repeated claim (that piracy or whatever you call it is actually good for the music business)

in fact, just the opposite is true — there are reams and reams of data showing that the business of being a recording artists is basically being destroyed. dollar and unit volumes sales are plummeting. maybe that’s inevitable. but can’t we PLEASE stop repeating the patently false silicon valley ideological nonsense that if only artists and record companies would open their eyes their businesses would prosper from all the piracy

toyotaboy

There are two sides to this. On one hand, there ought to be creative commons for stuff like this. On the other hand, this is a video that got a lot of views, and the song was part of that (plus it’s not like the song is distorted playing in the background, it’s very clear and high quality). Honestly, if it were up to the individual artists, things would be much more laxed, but record companies just won’t give up over this.

insider

is it up to the artists — had the artists consent been sought, it may very well have been given. but it wasn’t. and that’s dishonest and illegal.

Monkey F-er

You said: “plus it’s not like the song is distorted playing in the background, it’s very clear and high quality”

Please listen to this again. It is quite obviously nowhere near cd quality. Not only that, it isn’t even the same quality you’d here on fm radio. There are a lot of artifacts especially in the high end. It has low audio bit rate “pots and pans clanging” throughout most of the song.

fun

I think you’d have to do something pretty wild — like steal a band’s master tapes or something.

stevegarfield

In this paragraph I think you mean Veoh:

“Earlier this year, Universal Music Group lost a copyright infringement suit against another video-sharing site, Veoh. It claimed that Vimeo didn’t do enough to protect copyright owners from users uploading their material. Veoh argued that it was protected under the DMCA “safe harbor” provision, which says video sites are not liable for content that users upload, so long as they take that content down after copyright holders alert them to the material.”

CJ

Content Producer, I don’t think those analogies come close to adding up.

To really be on the same level as stealing paintings from a studio and snatching manuscripts from a poet, I think you’d have to do something pretty wild — like steal a band’s master tapes or something.

While unauthorized and quite possibly illegal, artistically, Vimeo’s lip-dub added something new and interesting to Harvey Danger’s work. And I guarantee you that Harvey Danger gained increased exposure and at least some CD sales from the millions of views on Vimeo’s vid.

Whether those ends justify the means, I don’t know, but I can sure think of plenty of better people to send to state prison.

Content Producer

Do you go into an artist’s studio and steal paintings from the walls? Do you knock down poets and snatch their manuscripts? Then why is OK to steal songs from musicians. This is not some girl with a ukulele playing for her 100 YouTube friends, it’s a business using a hardworking rock group’s song to promote itself. They all belong in state prison.

Brianna

The difference being, you can’t ‘take’ a song, unless you are actually suggesting these people are destroying every CD, score and recording save for their own.

This is obviously a different situation. I’m not saying it’s right, but it seems like the most logical punishment is some sort of financial compensation, not state prison.

anonymous

Before you go mouthing off about people “needing to be in state prison” for “stealing from musicians”, you should do your research.

Sean Nelson, the frontman of Harvey Danger, sent Zach Klein of Vimeo an email about the use of their song in the Flagpole Sitta lipdub.

“That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you’s.”

If anything, the use of the songs in lipdubs is free viral marketing. Stop complaining.

Tyler

You do not make a single valid argument or point. How many pieces of artwork have you seen? I can come up with countless analogies and counter-arguments, but you’re dumb, and you don’t get it.

ryanve

LOL This video is better than any music video the band could have made. It promotes the band as much as it does Vimeo. It’s a win-win. It’s not stealing. For something to be stolen than it would have to be missing. Harvey Danger should be happy to get the free promotion, as should Capitol Records <- douchebags. They should spend their time promoting their artists instead of trying to fight the Internet.

Seth

Hi,

First of all you need to understand something. The artist makes little to no money from music sales. The record companies aren’t protecting their artists or their artists music, what they are trying to do is control who can listen and play music that they “own” the rights to.

Lip Dubing if anything is a show of how much you really love a song. If I were a record label I would encourage this and promote it…not sue someone for doing it. They are fighting the people who buy the music and who enjoy the music…why? Because at this point you have already paid them.

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