Why That Viral NY Tough Video From an Agency Seemed to Vanish Overnight

By Erik Oster 

Inspired by Andrew Cuomo’s response to the coronavirus pandemic, a New York agency rushed to set the governor’s speech to existing footage and created a NY Tough film that moved audiences and went viral, but ran afoul of filmmakers who said their content was used without permission.  

Convicts’ NY Tough video reached millions of viewers after being shared by Governor Cuomo and retweeted by celebrities, including Hillary ClintonIt also led to a relationship with Cuomo’s office, which has resulted in subsequent work. Convicts founder Peter Maiden noted that the agency is working with the governor’s office on a pro-bono basis. Convicts’ first such project, Stay Home, debuted on Tuesday, April 14, featuring a series of healthcare workers urging New Yorkers to thank them by staying home. Cuomo tweeted about the Stay Home video with the hashtag #NewYorkTough and tagged @convictsnyc. He said that Convicts was also in discussions to work on a pro-bono project with Mt. Sinai Hospital. 

“We were trying to do something good,” Maiden said. “The call to action was to raise resources for healthcare workers, and we just had this outpouring of support.” 

But Firebrand Films executive producer Claudia Montano said that Convicts used its footage without permission and didn’t give credit to filmmakers whose content was used for the original version of the NY Tough video. 

“When you are using someone else’s footage you need to get permission,” she said. “We all do this and it’s painful sometimes. No matter how amazing the shot is, sometimes you have to let it go because you can’t get permission.”

Firebrand Films says its footage was taken from a tribute to a friend who died in the Sept. 11 attacks on the World Trade Center and was on a private Vimeo account. Montano claims footage was taken from Tim Hahne, Phil Holland and Backyard Films director Paul Stone. Holland told AgencySpy that his footage was used without permission, with a watermark he includes to avoid such appropriations cropped out. He declined to allow Convicts to use his footage in a re-edit of the video, he said.  

“At this time, because we can’t shoot, all we have is our intellectual property,” Montano said. On April 7, Firebrand Films sent a cease and desist letter to Maiden, demanding the version of the video containing its content be removed from all Convicts sites and social channels and that the agency instruct third parties to remove the content as well. 

Maiden told AgencySpy that, unable to produce work for clients and inspired by Cuomo’s message, the agency’s core team of around seven decided to make something to attempt to rally people together during a time of crisis. He said Convicts’ editor put the video together in about 12 hours.  

Maiden told AgencySpy that Convicts put the video up quickly after editing “and credited the films we pulled it from as best we could.”

“The majority of the footage is Convicts footage, but the editor did pull samples of videos that we listed as credits in the initial cut,” he added. 

“Following the release of the initial edit, we received a take-down notice from YouTube which identified the filmmaker who filed it,” Maiden explained. “After the take-down notice and wanting to avoid any further issues, we removed the original edit from all our channels and contacted the other filmmakers.”

“We were able to license all the clips we spoke to people about except one,” he claimed, explaining that “in most cases” the content owners licensed the footage free of charge. Convicts was subsequently able to upload a new version of the video (included above). 

“I think everyone understood what we’re trying to do is a good thing and raise money for healthcare workers in a pretty terrible situation,” he added. “We removed [any footage where] we didn’t speak to the filmmaker. That way, we were able to know that everything in the film is licensed.”

‘More wrongs than any rights here’

In addition to Montano, director Phil Holland said he declined to allow his footage to be used in the subsequent edit of the video.

“The message behind the piece is something I can 100% get behind in these difficult times, and honestly if it wasn’t so overtly done without my permission nor crediting anybody’s work I likely would have allowed usage,” Holland said, “but there were more wrongs than any rights here.”

“All of this could have been avoided by simply reaching out to the creators before the edit went live to see if they could or did have the ability to release or license the material,” he added.

“As I recall, there was one other party who could not give us permission to use the footage in question because they did not themselves own it but they were quite supportive about the message of the film. Nonetheless, that footage was removed,” Maiden told AgencySpy. “We released a new edit of the film with the full support and clearance of all the artists along with significant original content from Convicts’ archives and with the same call to action to help direct resources to New York’s healthcare workers.”

Montano said she took issue with Convicts, in her view, using other creators’ content to elevate their own brand, pointing to the relationship with Cuomo’s office and positive press around Convicts over the viral success of the original video which failed to point out that version had since been taken down. The video of NY Tough currently on Convicts’ YouTube page has received a little over 55,000 views.

Backyard Films director Paul Stone, meanwhile, released his own video set to Cuomo’s speech, which he dedicated to “friends and family that we’ve lost and the healthcare workers fighting for the heart soul of our city.”

NY Loves You – A True Yorker Tribute from Paul Stone on Vimeo.

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