On What Basis Can Coachella Issue A Takedown Of Stitched Together Frank Ocean Concert?

Last month there was a lot of attention paid to Frank Ocean’s performance at Coachella, which has been described as “so bizarre.” Apparently there was supposed to be an elaborate ice rink involved in the set, which was scrapped at the last minute, and then everything about the actual performance, including that it was difficult to see Ocean, went off… weirdly.

Destined to make waves, it was Ocean’s first live performance in six years, three years after he was slated to headline Coachella 2020. Hours before Ocean was set to take the stage, the internet was already buzzing after the revelation that the official Coachella live stream wouldn’t be airing Ocean’s set, after both YouTube and Coachella promoted the stream. Meanwhile, Coachella attendees sat patiently through an hour delay until the artist finally arrived. Fans’ bafflement continued though, with Ocean out-of-sight for a portion of the performance, unexpected DJ interludes, and remixed songs that disappointed those wanting to sing along. 

Ocean made his intentions of the set clear, to honor his memories at Coachella with his late, younger brother, Ryan Breaux. He told the crowd(opens in a new tab), “I want to talk about why I am here…my brother and I, we came to this festival a lot…and one of my fondest memories was watching Rae Sremmurd with my brother…I know he would have been so excited to be here with all of us. I want to say thank you for the support and the ears and the love over all this time.” 

The end of his set was as lackluster as its delayed start. After a stunning cover of “At Your Best (You Are Love),” he announced, “Guys, I’m being told it’s curfew, so that’s the end of the show.” 

The whole thing about how it was promoted by YouTube and Coachella for the livestream, and then… not livestreaming it seemed notable. But, of course, in this day and age, there are still tons of people with high quality cameras in their pockets, so lots of people recorded portions of the Ocean set and posted them online.

So, film editor Brian Kinnes decided to download more than 450 such videos that he could find, from about 300 different attendees, and stitched pieces of about 150 videos together into a concert film that many people say was quite good. For sound, he apparently found the two best recordings for sound quality, and had a sound engineer friend of his clean them up and stitch them together.

Except, two hours after it was uploaded to YouTube, Coachella owner AEG sent an angry, legalistic cease-and-desist letter ordering him to take it down and destroy all copies of the video and remove any mentions of Coachella.

Now, I can understand (maybe?) why Coachella wanted to do this, especially after it refused to livestream the show. But… I’m perplexed as to what basis it has to do this, beyond pure legal bluster. The Variety article that broke this story notes the same thing:

But the copyright and intellectual property laws surrounding Kinnes’ film are actually quite murky, as there are many layers of copyright interests at play, including but not limited to Ocean’s music and lyrics, the graphics and video elements, the festival’s signage and trademarks, the people who took the videos and the social media platforms to which they uploaded them. After all, copyright protects any original form of expression that is fixed in a tangible medium.

But while the cease and desist letter warns, “You cannot use our logo, our artwork, our imagery, or any of our other intellectual property for your own commercial benefit,” Kinnes says he is not making any money off of his concert film, and he never expected to. For that reason, he says may have a fair use defense. But legal experts say AEG could still make a trademark dilution claim even if Kinnes is not held liable for infringement — an idea the company alludes to in the letter: “The contents of your social media posts, use of our Festival name, use of our Festival content, and other circumstances clearly indicate that you are using the Intellectual Property with intent to trade on the Festival’s name and reputation.” Attorneys say even sharing or promoting links to re-uploaded versions of his video could potentially land Kinnes in legal trouble for contributory infringement.

And, yes, it’s possible the film infringes on someone’s copyright, but it’s not AEG’s (at all). At best, as noted above, AEG might have a trademark claim, but that seems hard to justify as well, considering that Kinnes wasn’t using this in commerce, as is required for there to be a trademark violation. Also, it seems that Kinnes has been quite clear all along that he’s not associated with Coachella, and no one watching the film is likely to think he is. It’s difficult to see how there’s a legit trademark claim here at all either.

Coachella does have rules for attendees about not broadcasting live audio, but… Kinnes didn’t attend the show, and never agreed to such rules.

In the end, Kinnes did comply because big scary legal letters often work to intimidate and silence people who don’t want to deal with the hassle of a lawsuit. But it’s really a shame. And even Kinnes seems to recognize that:

Upon receiving the cease and desist, Kinnes says he consulted a lawyer and feels confident that AEG does not have a “legitimate complaint.” He adds, “It feels like a massive overreach of power by a corporation that is struggling with their image.”

Kinnes emphasizes that the film is a passion project, which he worked on during his off-hours from his job as a professional film editor, without the intent or expectation of compensation. “Frank Ocean has had a massive amount of influence on my life,” he says.

At least the film is getting Kinnes apparently well deserved positive attention:

In addition to being shocked by AEG’s legal letter (it hasn’t followed up since), Kinnes found himself surprised by a wealth of new professional opportunities. He has received emails from film directors with scripts, as well as from agents.

“Hollywood was always the end goal, but there was never a way for me to break through those doors. The situation is just so silly. In a matter of 72 hours, working on this little music film in my bedroom is the thing that helped open those doors for me.”

That’s great for him, but it’s not great for culture. AEG/Coachella was able to legally bully a guy into pulling down a film based on highly questionable legal bullying. And that’s not great for the public or culture.