By Stephen Pate – The copyright holder is playing whack-a-mole taking down Natalie Cole’s 1992 concert from YouTube. Story updated with feedback from Thirteen/WNET. NJN Network apologizes to WNET for assuming they issued the takedown.

Bob Dylan tried the same thing for a decade. Recently his manager Jeff Rosen admitted they missed the window of opportunity to monetize Dylan’s unreleased videos over copyright concerns.

When the late, great Natalie Cole recorded “Unforgettable: With Love” as a tribute to her father Nat King Cole in 1991, the album and song Unforgettable won 6 Grammys (1992), sold 7 million copies, and spawned a popular North American tour.

Thirteen/WNET, a major PBS affiliate, and Knight Productions recorded Natalie Cole’s Unforgettable Tour performance in Pasadena, California in January 1992. It was a wonderful show that spotlighted Natalie Cole’s charm, humor and beauty along with her great singing.

Natalie Cole - The Unforgettable Concert (1992) (photo Thirteen/WNET)

Natalie Cole – The Unforgettable Concert (1992) (photo Thirteen/WNET)

It was a night of pop songs, jazz, and ballads with a full orchestra and small jazz combo. Ms. Cole sang the same material as the album and she made it come alive. It is measurable more entertaining than listening to the CD.

The PBS show “Unforgettable, with Love: Natalie Cole Sings the Songs of Nat King Cole” was nominated for 4 Emmy Awards in 1992 and won 2. The title is sometimes shortened to “Natalie Cole The Unforgettable Concert” or “Natalie Cole Unforgettable Concert 1992”.

For where to find the CD, LP or video – see the end of this article.

You could watch the 90 minute concert, long out of print from PBS, on YouTube until recently when the copyright holder asked YouTube to remove the audio. Underneath the silent video is the notice –

“This video previously contained a copyrighted audio track. Due to a claim by a copyright holder, the audio track has been muted”

Obviously, without the audio who wants to watch it?

I understand the legal and ethical rights of copyright holders to monetize their works. What I don’t get is why copyright holders think this game of whack-a-mole works. As soon as a copyright holder asks YouTube to take down a video, some else posts another copy of the video.

I posted Dylan videos a decade ago until Bob Dylan hired Web Sheriff to take them all down. It hasn’t stopped other people from posting more than 3 million Bob Dylan videos on YouTube.

YouTube has become the largest repository of musical performances in the world. You can find almost anything that ever existed on YouTube.

Bob Dylan was impressed and inspired when his girlfriend Suze Rotolo took him to see a 1963 production of Brecht’s Pirate Jenny.  (See A Freewheelin’ Time: A Memoir of Greenwich Village in the Sixties).

Today you can watch the original performance of legendary Lotte  Lenya singing “Seeräuber Jenny” in the original 1931 film Die Dreigroschenoper (The Threepenny Opera) on YouTube, something Bob Dylan could only imagine.

Culture for everyone transcends the rights of copyright holders to play dog-in-the-manger hiding their content from the public without providing alternative access.

Who is the copyright holder?

Thirteen/WNET responded to this story with an update on their copyright status.  Lindsey Horvitz one of the publicists at WNET, wrote –

“We’re not authorized to take down this particular program, because the copyright to it is owned solely by Knight Productions, which was Natalie Cole’s company.  We were a co-producer and co-copyright owner at the time of production, but pursuant to the terms of the production agreement, sole copyright ownership of the program passed to Knight Productions in March 1997, five years after its initial broadcast on public television.”

WNET says the they did not takedown the video.

My colleagues in the legal department,” wrote Ms Horvitz, “have explained that the telltale sign that we didn’t take down this posting is the message you cited after it was removed: “This video previously contained a copyrighted audio track. Due to a claim by a copyright holder, the audio track has been muted.”  Such messages are posted when music publishers send takedown notices about the unauthorized use of copyrighted songs inside programs.  This takedown was most likely initiated by the copyright owner of that particular song or songs.  Had WNET sent the takedown notice, the entire program (audio and video) would have been removed from YouTube.”

The problem with streaming copyrights

The Natalie Cole show, like many before the days of YouTube and Spotify, was not cleared for internet streaming. “Putting aside the fact that WNET is not the copyright owner, this 25 year-old program would need to be fully cleared for streaming in order to be posted to our YouTube channel” she said.

Because it was produced many years before streaming existed, it was not cleared for that purpose. We would need to pay, among others, the Estate of Ms. Cole, the musicians in her band, the director of the program, and the copyright owners of all the songs in order to make the program available on the web.”

In any event, anyone who wants to watch the concert can quickly find it again. I’m not suggesting people disobey copyright law but they do.

The 400,000 plus people who enjoyed the Natalie Cole concert over the past two years will have to Google to find a video with audio.  The copyright holder is missing a revenue opportunity as long as people remember Natalie Cole, who died in December of 2015.

I wrote Thirteen/WNET archives department to see if they were planning on releasing a DVD or Blu-ray of the concert. If you are interested in this performance, write them yourself at archives@thirteen.org.

WNET said the costs of releasing this performance, and presumably many others from their past, “would be a very costly endeavor.”

It seems a shame to sit on great performances, who ever the copyright holder is, and deny the public a legitimate way to enjoy them. WNET has hundreds if not thousands of great performances in its archives that the public deserve access to and I’m sure many people are willing to pay to license their favorites for personal viewing.

All of these legal hurdles block the streaming or release of 1,000’s of past performances, which is probably why many people assume truth of Dickens statement “the law is a ass — a idiot.”

Everybody knows the digital world has broken the copyright system. I think the best way to deal with it is license material for viewing with micro-payments.

You can still get the Unforgettable album “Unforgettable: With Love” in the USA.  It’s also available in Canada from Amazon.ca. I got my copy from iTunes – it’s quick and I like having my music on the computer and all my portable devices – Unforgettable: With Love – Natalie Cole.

The PBS show “Natalie Cole The Unforgettable Concert” was only available on VHS and LaserDisc which are also out of print. There are copies available on eBay and Amazon.com.  The LaserDisc is the same video and audio quality as the YouTube version.