Have you seen the video from Vimeo where the hipster kids lip-sync to Harvey Danger’s “Flagpole Sitta”? It’s an internet classic, so if you’ve seen it, you still haven’t seen it enough.
Now, Vimeo didn’t ask Harvey Danger if they could use the song. As far as I can tell, they never paid the band for it. And they got two million views and attracted new users, so they indirectly profited from it. Is it fair use? Probably not, because this was a public performance used as publicity for a company.
Harvey Danger frontman Sean Nelson enjoyed the publicity, but he didn’t make a big deal about it. After all, he’s got other shit going on (other bands and some screenwriting). Nor did his label, Arena Rock.
But when Vimeo users started making their own lip-dubs, they borrowed music from more litigious record companies. And eventually they pissed one of them off. Now NewTeeVee reports that Capitol Records is suing Vimeo. The suit accuses Vimeo of encouraging people to upload copyrighted content without permission. And in that respect, Capitol’s right. They’re also pricks making a bad decision.
Vimeo was definitely profiting from having its users do lip-dubs, if only by bringing in traffic and new users. The fad was great PR for the company. And it’s hard to argue that this was fair use: Usually, the entirety of a song played over the clip, and the whole point of each video was that someone was enjoying the song. Each video sent the message, “This is a fun song!”
Of course, this is also helpful for the creators and sellers of the song. It encourages sales. That’s not a legal defense, and vociferous anti-copyright activists need to calm the fuck down and stop trying to justify all use of copyrighted material this way. It’s too easy to counter: What good is more publicity if the kids are all stealing the music anyway? I have to admit, when I saw the Vimeo lip-dub, I didn’t buy the original song. I pirated it. Harvey Danger and Arena Rock got nothing from me.
But between these extremes are reasonable compromises. Capitol could make a Vimeo channel to capitalize on their material, as they did on YouTube. They could work out a licensing agreement. They could ask for some special advertising, again similar to YouTube, where each video including a Capitol song would have a link to buy the mp3. Maybe Capitol tried some of this, which would somewhat vindicate them. Vimeo would only tell me, “Vimeo of course respects the intellectual-property rights of others.”
These are smart solutions that recognize there’s more going on in music than the law. These are good PR solutions. What’s not good PR is suing a lesser-known site over a fad that’s faded, thus driving up attention and turning the site into the “good guy” for everyone who’s enjoyed the lip-dubs. If Vimeo has to take down several popular videos with Capitol soundtracks, they could put up notices blaming Capitol, turning off plenty of former fans. They could fight dirty.
And I hope they do. YouTube shouldn’t be the only company that brokers deals with labels and networks. The market needs diversity, small sites need to see a positive precedent. And the old guys need to give innovators a way to get big without giving The Man a big middle finger. They need to stop being Walter Sobchak, shouting “Am I the only one around here who gives a shit about the rules!?” Because if they keep waving that gun around, no one’s gonna care whether Vimeo’s toe stepped over the line. They’ll just know that Capitol waved a pistol in a league game, and there’s no way that guy’s winning the trophy.
