I want to talk about an important issue that affects all of us film makers. If you have been following my Facebook or Twitter feeds over the last week you'll be aware of a storm has brewed over this issue. During a lighting workshop a few months back, (and as we do on every small group lighting workshop) I ask attendees to bring whatever gear they have, and we show them how to get the best results regardless of camera.
During this class we had a student (who is a BA captain by day and aspiring film maker when not flying.) He'd purchased a Light from a British company who has a marketing tag line that includes 'The Worlds Most Advanced LED Flood Light' The light costs around £2000
Now I am not going write the name of this company down or make any reference to the product because I'm afraid I may contravene a Copyright Infringement if I do so….
*****Update as of Saturday August 3rd at 01.53 ( I am in Australia so got this news later than most) Vimeo have re-instated the video as there were no ground for an infringement case whatsoever*****
Legal Advice Statement from Booth Sweet LLP(www.boothsweet.com)
I took legal advice and have decided to post a blog on the issue following an official statement from Rotolight on the case.(I'll come back to that later)
Here is the advice I received from Dan Booth, from Booth Sweet LLP
"This takedown is more than a little outlandish. The DMCA is designed to prevent copyright infringement, not trademark infringement. They haven't even claimed that you violated their copyright, so this is an abuse of the copyright law.
Even if that weren't at issue, Rotolight's trademark claims have absolutely no legs, under US or UK law. (It's my understanding that you and Rotolight are both based in the UK, and the only US connections here are Vimeo and the DMCA.)
First, there's been no infringement. Trademark law protects against confusion about the source of goods or services, but there's no basis for them to claim that your video could have caused such confusion. Trademark law also seeks to prevent unfair competition, but you're not a competitor. Second, US and UK trademark law specifically allow for fair use. In the US, the Lanham Act provides that using a mark descriptively in good faith isn't infringement. In the UK, under the Trademark Acts of 1994, using a trademark to indicate the quality of goods isn't infringement. Third, we've got this little thing called the First Amendment that we're rather fond of. Registering a trademark doesn't give them the right to squelch free speech about their products.
In short, you have more than sufficient grounds to file a counter-notice. If you need us to write it up for you, we'd be happy to explain all of that to Vimeo, Rotolight, and whoever else you'd want to see the counter-notice. Vimeo should then put the video back up."
Booth Sweet LLP is a Commercial Arts & Technology law firm.
We serve as counsel for the creative industries, handling clients’ day-to-day business law issues, including intellectual property protection and licensing. From copyright to contracts, trademarks to trade secrets, the law plays a critical part in the creative industries. Whether you are a musician, architect, video game developer, or filmmaker, you need a firm grip on how the law affects you and the work you create.
The Background of the test and set up
You see during this class we lit an interview. We used the natural daylight coming through a window as backlight. This is a big part of our small group lighting classes- It's all bout real life situations and students bring along whatever gear they own or use and we try to get the best results regardless of shooting environment.
We then used 3 different sources as a key light set to 3200K. The camera was a Sony FS700 if I recall and the picture profile was switched off. The colour temperature in camera was set to 3200K.
The first light source was a tungsten soft box from dedolight, 150w with an egg crate. This was what I refer to as a control… meaning tungsten light is full spectrum and yields a good skin tone when used as a key light. ( I don't have a picture of that on me as I'm travelling at the moment, but the skin tones look great)
The second source was the Kino Flo Celeb. Now this is a light costing around £2300 in the UK (this does not ship with any minus green correction gels).
The 3rd source was a light costing £1800 in the UK was a Rotolight Anova.
We recorded each shot and when using the Anova noticed a particularly Green cast at 3200K. The light comes supplied with 2 Minus Green filters (they are magenta in colour) And so we put the 279 Minus green and the 248 minus green on the light and reviewed the results. (if a light is full spectrum why does it ship with Minus green filters? The Celeb does not and looked fine??)
The green cast was still very apparent.
I've since been informed by Rotolight that if we had 'only used the anova and manually colour balanced the camera that we would indeed get stunning results…'
Their words verbatum:
"If using 'The Anova' at 3200K by itself then auto white balancing the camera to it will produce a fantastic a skin tone with a skin tone CRI (R15 value) of 97 (out of a possible 100). When using Light R at 3200k with additional lighting fixtures, then filters are provide to allow you to colour compensate accordingly to allow for difference in the colour spectrum between them"
Tungsten is tungsten
Well what if I don't want to balance my camera to a light and I want to set my manual WB and trust the lights will output the desired colour at 3200K ...just as Tungsten lights do and as advertised. Particularly when a light is advertised as 'full spectrum'
The thing is, It is my opinion that a light at 3200K should give a colour tone exactly like a tungsten bulb at 3200K… that's the whole point. Tungsten is a measured colour of the periodic table that when it burns...it is exact.
Anyway when I edited a comparison video together I simply compared the tungsten source to the two LED fixtures because I felt it was important to allow anyone thinking of investing this kind of money in a light to make an informed choice and do their own additional research before making a purchase. Secondly if you do not want to have ti futz around with additional colour correction gels then you should be aware that this may be aconsoderation.
I, as I'm sure you do, rely on independent reviews and comparisons when making any gear purchase and so as part of our educational process gear comparisons and reviews are an important part of our service.
In fact I've made similar comparison vides between canon and Zeiss lenses….no such claim of copyright or trade mark infringement on those…. That post is here if you're interested
Anyway so I post this short video, I did not give any personal opinion simply posted the results…
The video had been up for a few weeks with less than 150 views… (we have over 300 training and review videos on Vimeo so I wasn't paying super close attention to that particular video and never got round to doing a full blog post about it )
I then received a note from VIMEO on Wednesday August 24th - Saying I'd infringed copyright and the video had ben deleted…
See below :
Firstly it seems ludicrous to me that if we post our own comparison video and a manufacturer does not agree with the results or like them that they can pull the 'Infringement clause and worse, Vimeo just removes it without contacting me to suggest modification or even tell me exactly what was infringed.
They used a technicality to have it removed...
After 3 days of asking the manufacturer directly I was sent this:
Morality of Independent reviews
So the moral of my argument is that - so long as reviewers are posting positive reviews… manufacturers such as Rotolight are quite happy for you to use their name, make reference to their brand in your video… But of the results are not what they were expecting or not typical - 'In their view' - they simply apply to Vimeo to have the work removed without any explanation….?
Only after posting my experience on our Facebook page and more that 35 comments did the manufacturer of Rotolight firstly apologise… and then go on to say they didn't feel the results we're fairly representing the product… (comments have now reached 150 so clearly this is an issue where film makers feel strongly)
I have offered To re-test The Anova
I have offered a re-test and Rodney Charters ASC will Join me. Rodney is a DP and director who has shot 24, Dallas, Nashville and Shameless USA.
So for the record I made the offer immediately via Twitter and email to retest the light in August. After all it's only right that if the light was indeed faulty that they get a chance to put it right…. However the light we tested was brand new when we used it. I have also since had 2 other respected DP's contact me privately sharing similar stories and share similar accounts of their independent tests and they mirror the results I encountered.
The original comparison video
So let me be very clear.
I still stand by my video comparison ( that was deleted and has since been re-instated) 100%. I have no gripe with Rotolight nor do I have any commercial relationship with KinoFlo or Dedolight.
I'm simply a DP who uses those tools and many others including fixtures from Arri, Litepanels and Cineroid… I have filmed over 3500 interviews and so am quite comfortable with my ability to set up lights in a like for like environment… contrary to some of the claims made by Rotolight over on my Facebook page.
Faulty Light? Then Improve QC for Lights costing £2000
If the light was faulty..then I am happy to retest and publish those results… If it was faulty then the Quality Control procedures should be reviewed by that manufacturer. Either way a light costing £2000 should work out of the box without a complex user guide.
For the record I have been sent images from another DOP who tested the Anova and those images yield similar results to me- However I will hold off posting those until a retest. I've also received a note from a reseller who experienced a similar result and is still awaiting a replacement unit. And a well respected DP who works for a highly regarded US education and reseller also tested and experienced similar results..so my results are not isolated
What I will require during the retest is that it is carried out at an independent location and with a third party also present to maintain a fair and level field. I will only retest if we are allowed to film the process and publish our results regardless of outcome. Rodney Charters ASC has offered to do this.
The moral of this story seems very simple to me…The manufacturer simply should have contacted me directly …had a discussion, offer a retest and I would have been happy to oblige…
Instead they opted to take the heavy handed approach to try and silence my results… and as a direct result of this action have now created some very strong feeling from fellow film makers…
Apparently something called the Streisand Effect has ended up happening...
Freedom of opinion
We are supposed to live in a democracy when the freedom of speech and opinion is our human right. If during this process we are silenced and censored based on a legal technicality that amounts to some manufacturer simply not liking the results ….then that is a very sad situation.
At 5Pm BST on Thursday August 1st Rotolight Ltd released an official statement. I am happy to publish this on my site as it's only fair they have a right to reply.
Even if it is only as a result of an action that attracted monumental Social media exposure and negative feedback.
It's a shame they did not simply contact me 5 months ago, say hey Den, we think that light was faulty, would you mind if we sent you a unit to test because we know our light is great... Instead they forced a DMCA takedown on Vimeo then in this statement claimed that was not the case...either way Vimeo have now reinstated the video.
For the record (at the time of writing) I have also not received any direct communication from Rotolight offering an Anova for use in F-Stop Academy Workshops as is claimed in their response below. If this is offered I will review the decision once I have retested the light and not before. I do however acknowledge the goodwill gesture - even if I did read about it in the official statement)
Rotolight have apologised and I respect them for manning up. I accept that apology and will take no further action following this blog post. I will however hold them to a re-test, we will film it and publish those results.
Rotolight would like the opportunity to respond to the recent concerns raised that related to the circumstances surrounding, and subsequent request for the removal of a video from Vimeo. We sincerely apologise for any offence caused to Den Lennie and the F-Stop academy, and for the resulting anxieties around freedom of speech. - See more at: http://www.rotolight.com/officialstatement/#sthash.bBNsCauN.dpuf
Rotolight is a small, family owned and run, UK based business, with a great team of extremely hard working and passionate people, who have worked for decades in the creative industries and care greatly about creating highly innovative products for our customers. Rotolight is not a ‘corporate bully’, far from it. We are in fact one of the ‘little guys’, and have to work extra hard to compete with larger companies, to come up with exciting and imaginative new designs that push the boundaries of LED lighting technology.
Rotolight welcome and encourage independent reviews, editorial and feedback from customers on our products, and indeed go out of our way every week to provide products for test to numerous major industry publications, to which Rotolight has no affiliation. We also regularly provide loan products to leading cinematographers and DoP’s in the field for use on their projects, without any prior knowledge of their potential feedback on the product. As a result, our products have recently been used on James Bond Skyfall (http://goo.gl/UUxK7e), Tom Hanks latest movie Captain Phillips (http://goo.gl/XP1JeV), and currently by ITV’s ‘Your face sounds familiar’ as well as recently on a major BBC series and Formula 1.
In this specific case, the video was not removed for copyright infringement reasons as has been widely reported. Rotolight received external advice with respect to this particular video that it was potentially misleading and unrepresentative. This advice resulted in the only request the company has made to have a video removed from any video sharing website in the last 3 years.
It is important to understand the damage that can be caused not just to our business, but to its hard working employees and their families, and also to the numerous other SME’s in our UK supply chain, whom we make a conscious effort to source components from in order to support our local business community, which is why we felt we needed to act.
However, we accept that we could have dealt with this better and avoided the issue through clearer communications in the first instance, and we are already reviewing our process and policy on this matter to ensure it does not happen again.
Due to a simple human error, the light featured in this Video was found to have a minor anomaly in its manual software calibration process, which affected only this particular light. It was immediately rectified and returned to the customer, resolving the issue displayed in the Video. The issue here was not that we simply ‘didn’t like the results’ but that the original test video was posted to Vimeo 5 months after the issue had been rectified, without any reference to this. It was therefore felt the Video was potentially misleading and unrepresentative, although we fully accept that this was not the intention of the Video when it was uploaded. We have already posted a link to a completely independent test of a representative light alongside 20 other manufacturers lights, carried out by Wide Open Camera that can been seen here:- http://goo.gl/zny8hF
The colour accuracy of the Rotolight Anova was specifically analyzed by the Canadian Society of Cinematographers in an independent test where they said “Many lights, especially LED’s, produce a spiky spectrum or have large chunks of spectrum missing, but the Rotolight Anova showed a nice smooth gradation through the whole visible light spectrum, which in turn means rich, beautiful and natural colour rendition in the subjects you are shooting” (Sarah Moffat, CSC, http://goo.gl/mNZSYP)
We recognize everyone’s rightful concerns about freedom of speech, which we equally share. However, this particular case was more an issue of a breakdown in communication between the key parties, which is regrettable and for which we deeply apologize to all concerned.
As a gesture of good faith, we have offered to donate a brand new Rotolight Anova worth over £2000 to Den Lennie’s F-Stop Academy for use by its students in their workshops, and have invited them to our Pinewood Studios Office to meet the designer and the Rotolight team.
Indeed we always try to communicate, promote, understand and welcome our end users feedback, either positive or negative – It’s what makes us work harder, move further and improve our products every day. That’s one of the reasons why in a recent survey over 92% of Rotolight customers said ‘they would recommend our products to a friend’. We encourage you to visit a store today, try one of our products and see it for yourself.
Last week Rotolight was proud to be honoured by the Hollywood Film Making Community as the Winner of the prestigious CINEGEAR 2013 Technical Award (held at Paramount Studios LA). We have also won numerous other industry awards including the CINEC Special Award for Scientific Innovation and Technical achievement, and the British Kinematographic Sound and Television Society award 2013 for a product range that has “made an outstanding contribution to the advancement of the industry”.
We’d encourage you to visit Rotolight at IBC 2013 on stand (11:D69) to see the award winning lights in action and have a one-to-one demonstration on the latest additions to the Anova product line being announced at the show. To see Rotolight’s products in action, you can view our showreel here:- http://goo.gl/v2CXhm
While I accept the apology, my advice to anyone buying any gear is do your due diligence. If I wanted to I could pick holes in the above statement and challenge specific claims as I think some of them are tenuous to say the least. An opinion of a member of a society does not constitute an endorsement...(Unless you are someone who has been invited in as a result of a body of work - The ASC, BSC and ACS are organisations where you have to earn those credentials - I'm a member of The federation of small businesses but that does not entitle me to make endorsements on their behalf...)
however... I have spent enough of my holiday dealing with this debacle and I intend to enjoy whats left of it...
I truly hope that the retest yields better results. And I will happily publish those. Thanks to everyone for your support of this crazy situation.
Rotolight have admitted that they messed up so lets cut them some slack now. They've apologised and I've accepted. If they are wise they'll listen to my views when we meet and perhaps they can improve their lighting systems as result. I normally charge £1500 for that kind of consultancy.. but as a gesture of goodwill will will extend that to them as a courtesy because I'm fair.
Feel free to share your views below...