The Marlowsphere (#10)
When a third party videos a performance and puts it on YouTube or Vimeo are there legal issues to deal with? Do poorly chosen camera angles, inadequate lighting, hard to hear audio, and badly framed camera work suffice when it comes to promoting a professional “arts” presentation on YouTube or Vimeo?
A few weeks ago my quintet, The Heritage Ensemble, gave a performance for a community organization. Our host had arranged for an experienced videographer to record the event. Our verbal agreement, struck about an hour before the concert, was that the videographer would abstract short “clips” from the concert and post them on YouTube.
A little over a week later I receive an email from the videographer with a Vimeo link. A recording of the entire event had been posted there! I immediately wrote to the videographer with an insistent request that the entire performance be withdrawn. Ultimately, it was.
The Legal Issues
Right off, there was a misunderstanding between us and the videographer, i.e., “clips” vs. “entire performance.” Second, it didn’t make sense to us to post an entire performance. The quality of the recording notwithstanding (I’ll get to that a little further on), we perceived this was giving it away. Would a Broadway show producer put an entire performance on Vimeo or YouTube as a way of promoting tickets sales? I don’t think so. We had no objection if the videographer had set up a “private” link so that members of the community who did not make the performance could see what they missed. But having the entire performance on Vimeo not only gave the entire performance away, it also made it downloadable to others “free of charge.” Since there was no oral or written distribution agreement or license, this could not be permitted. All The Heritage Ensemble arrangements are copy-written in common law and officially. If anyone downloaded the material and used it in another context, whether for monetary gain or otherwise, it would be a copyright violation. The videographer had put a copyright on the material. Yes, he owned the recording, but not the content. There was no
synchronization license or distribution license. The fee for The Heritage Ensemble was for the live performance, not for use of the content beyond the performance in its entirety, especially since it was our understanding that only “clips” would be used.
Lesson: know your legal rights and put agreements in writing prior to the recording of a performance by a third party.
The Quality Issue
The “production quality” issue on such outlets as YouTube and Vimeo raises questions about what is acceptable visual and sound quality and what is not, content aside, when it comes to promoting an artistic venture in the fine and performing arts.
The quality of the recording, both video-wise and audio-wise, did not represent The Heritage Ensemble well. Others have recorded our performances and the result is usually the same: when a recordist fails to connect the audio input on the camera to a single source audio feed (the most ideal) or the camera microphone is not close enough to all the performers, the audio always comes out sounding distant and uneven. Moreover, the visual angle the videographer chose had our drummer, multi-Grammy nominee Bobby Sanabria, completely blocked from view. The overall shot looked washed out and poorly framed. I should mention I spent over a quarter century in the television/radio production business. I know what it should look and sound like.
So What?
Today, digital video technology is now in the hands of anyone who can afford to buy a mobile device or a small hand-held digital camera, and has access to and knowledge of how to upload a video (edited or non-edited) to the Internet, i.e., YouTube or Vimeo. This is a significant change from the early days of television when only professionals had access to “broadcast quality” recording and editing equipment.
The implication of this is: not everyone is a video professional. Although Apple with its I-movie software has put video editing capability in the hands of everyone with a Mac, it doesn’t make everyone who uses I-movie a professional in the broadcast, cable, or consumer home video markets. Over a period of some years, video material shot by non-professionals is showing up on broadcast and cable network news programs. But “news” is not the same as “artistic product.”
The question then becomes this: do poorly chosen angles, uneven lighting, hard to hear audio, and shaky camera work suffice when it comes to promoting a professional “arts” presentation? My opinion is that it does not. While the broad spread of consumer “digital” video technology has opened many doors to the sharing of information among peoples around the world, the digital video promotion of an “arts” event, artist, or a musical group with production values akin to a “news” event, one that reflects the raw immediacy of the event, lessens the perceived value of the arts event, artist, or musical group.
This does not mean to say all videos on YouTube or Vimeo should have the production values of PBS’s “Live From Lincoln Center.” But if an arts event, artist, or performing group wants to make a good, promotional impression, the production values of the video presentation have to, on some level, reflect the quality of the artistic effort.
Just because YouTube and Vimeo provide the opportunity to post and share a video, doesn’t mean you should post questionable video quality there. If an artistic product has taken time, effort, and money to create, the video promotion of that artistic product on YouTube and Vimeo should be given the same consideration.
Eugene Marlow, Ph.D.
May 14, 2012
© Eugene Marlow 2012