April 19, 2024

Coachella parent company AEG is threatening legal action against a filmmaker who created a concert movie using found footage of Frank Ocean’s controversial April 16 set at the festival.

Brian Kinnes, who did not attend Coachella, stitched together about 150 videos uploaded by concertgoers to YouTube, TikTok and Twitter to make an unofficial, multi-cut film that accounts for the entirety of Ocean’s set, which spanned about one hour and 20 minutes. Kinnes launched his film online Tuesday and, that same day, received a cease and desist order from entertainment company AEG, demanding that Kinnes “remove and destroy all audio and video content […] of musical performances from the Festival.”

In the letter, obtained by Variety, the Coachella parent corp. writes, “Anything short of full compliance with this demand will lead to the initiation of immediate formal legal action.” AEG also owns Coachella promoter Goldenvoice.

Kinnes, a 26-year-old lead editor at Simone Films, decided to make his concert film after YouTube announced just hours before Ocean went onstage that the set would not be included as part of the official Coachella live stream, disappointing millions of fans at home hoping to watch the hermetic R&B star’s first live performance in six years. Kinnes made a similar project in 2017 by compiling found footage of Ocean’s show at the now-defunct FYF Fest, inspired by Beastie Boys’ experimental 2006 concert doc “Awesome; I Fuckin’ Shot That!,” which merged video captured by members of its audience.

Kinnes’ 2023 film, which is the most definitive and high-quality recording available of the much-discussed Coachella performance, was quickly taken off YouTube due to a report filed by third-party copyright holder Rico Management. But thanks to external links on Kinnes’ website directing to sites such as Google Drive and Dropbox, people were still able to watch and download the unofficial concert film for free. (Those links have since been removed from Kinnes’ site, which now includes a disclaimer that the film is “currently unavailable to the public.”)

“I’m not concerned with any legal repercussions because I do not plan on making a single penny from it,” Kinnes told Variety in an interview prior to receiving the cease and desist. “I will continue to upload it in places that [Ocean’s] legal team will not be able to find. I don’t know if I should tell that to a reporter… but it deserves to exist online.”

Kinnes has since changed his tune. After AEG demanded that he remove all references to Coachella from his website and all social media accounts, Kinnes did, in fact, delete some tweets and scrub the video from his online channels. But despite the company’s demand that he “take all actions necessary to preclude it from appearing under a different URL,” Kinnes is confident that “the video is going to be online forever,” as “hundreds of people were able to download it before everything got shut down, and those people are re-uploading it.”

Kinnes says he spent 80 hours editing the film on DaVinci Resolve. After sending the two clearest audio files he could find of the set to a sound engineer, who fused the two files into one clean recording, Kinnes then stitched together hundreds of videos he found on the internet. He estimates that he downloaded 450 videos from 300 different concertgoers, and ended up using about 150 for the edit.

“I’m just combining what’s already publicly available,” Kinnes says of the film. “Essentially, [AEG’s] claims are pretty frivolous and almost completely baseless.”

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.

Per AEG’s festival ticket terms, “No one may transmit, broadcast, or communicate any live audio or audiovisual images from the Event site without the Event producer’s prior written permission.” This means even posting to social media a 30-second video of your favorite band playing the Sahara tent could earn you a copyright takedown order. Of course, the policy is rarely enforced, as demonstrated by the 450 Frank Ocean videos Kinnes was able to easily download from the internet. Plus, Kinnes did not attend the festival and therefore did not agree to AEG’s ticket terms.

So who owns the videos? Possibly AEG, per their terms, but it might prove difficult for them to enforce takedowns of short videos posted by individuals at Coachella. There is also an argument that the festivalgoers who took the videos own the copyright. Regardless, it’s clear that Kinnes does not own the clips used in his concert film. He would have to claim that his film is “transformative” of the original content under the fair use doctrine. Speaking to Variety on background, a prominent Los Angeles-based intellectual property lawyer says AEG’s claims against Kinnes are shaky, but so is Kinnes’ defense.

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. And while the general response to Ocean’s chaotic set was disappointment (bolstered by his sudden Weekend 2 cancellation), Kinnes believes the performance was a brilliant “high-wire act” and piece of “performance art.” He made the concert film so more people could witness and enjoy the show. On Wednesday, he hinted on Twitter about possibly hosting an in-person screening of his film in New York City.

And he has no hard feelings toward the R&B star. “I do think that if Frank saw the video, he would have a certain level of appreciation for the way I captured the performance,” Kinnes says. “I don’t think he would have any issues with it.”

Since posting the video, Kinnes has become somewhat of a micro-celebrity on the Frank Ocean subreddit, which has more than 377,000 community members. “I’ve gained an absurd amount of Twitter followers. Maybe like 1,500 in the last six days,” he says. “For me, that’s kind of a lot.”

Kinnes’ upcoming credits include Rebekah Sherman-Myntti and KJ Rothweiler’s “Salamander Days” and Alexi Celine Wasser’s “Messy.” He also recently edited Kit Zauhar’s “This Closeness,” which premiered in March at South by Southwest.

As for his legal situation, Kinnes says, “I’m forced to lean into the bit.” When asked what that means, he adds, deadpan, “It’s a totally outlandish situation: being in a battle with a multibillion dollar corporation while sitting in my one-bedroom apartment in Bushwick.”

AEG and representatives for Ocean did not respond to Variety’s request for comment.