YouTube account reinstated after nearly four years!!

Thanks to the Student-Attorney teams at American University’s Glushko-Samuelson Intellectual Property Clinic I now have a clean slate on my PaulJD2006 YouTube account now that four strikes were removed.

It was a great privilege to work with two talented pro bono legal teams over the course of nearly two years. Shy of having such expert advocates working with you, there may be some lessons in my experience with YouTube strikes that might prove useful. The words in this retelling are mine, a subjective lay person, and do not represent the legal advise or opinion of the clinic.

The headline of this story is that I got my YouTube account back nearly four years after it was shut down in 2010!  When the page came back it was complete with all 100+ videos reinstated (comments etc too).  I found this remarkable and it begs the question… just how long YouTube will store a terminated page and videos? (Please write if you have information on this score.)

This “resurrection” happened last spring (2014) – but since I still had two outstanding strikes against me (it’s 3 strikes you’re out) it didn’t seem prudent to crow about the victory.  Maybe I was being paranoid but with over 100 clips of mixed provenance in my YT collection, I did not want to tempt fate and lose my account again.  I can now “go public” since a second team from the clinic cleared the remaining two strikes this April.

On a side note – though very happy to get the account back I lost all the momentum built up from 2007 to 2010.  In the last year before the termination I probably got several dozen comments a month, but in the year it’s been restored I’m lucky if I see a two comments a week.  The difference between YouTube 2010 and 2014 gave me a Rip Van Winkle feeling, but that story is for another time.

YouTube comments 2008b blur

Though I’ll not be naming the parties who initiated the takedowns (strikes) against me, here is a sketch out how the clinic went about clearing the strikes.  In 2010 strikes (takedowns) 3 & 4 came from an American production company – which resulted in the termination of my YouTube page.  I had posted 2 short films of theirs made in 1971. Before doing so I looked up the program I excerpted from and there was nary a mention of it on the web – effectively a footnote and certainly no on-going activity or presence, so I didn’t see a conflict.  After the takedowns they initiated, I tried repeatedly to contact the company to explain myself and apologize.  Over the course of several attempts, staffers said they were not able to help me. When the GS IP Clinic weighed in on my side I was aided by their prestigious letterhead in addition to their well reasoned arguments. Their letter to the production company offered a more refined “olive branch” but also indicated that if we failed to reach an agreement I would file a counter notification with YouTube because the company did not own all necessary rights to the content (re. their making the copyright-infringing claims) but rather the network did. This letter did the trick, the production company withdrew the infringement claims after I promised to remove the offending clips.  I deleted the those clips once I got control of them back.

my_videos_copyright strikes PaulJD2006 blur

Clearing Up the Last Two Strikes

The remaining two strikes came from overseas media companies, one European, the other Asian.  In the first case I posted something from the 1930’s naively thinking that it was too old to be actively commercial or that anyone would care.  Challenging that takedown started in Spring 2014 and resumed in the Fall of 2014 when I started working with a new team at the GS IP Clinic (there was not enough time the previous Spring semester to deal with all the strikes).  I would characterize our approach to the Euro company as a olive branch (unlike the Asian case up next) as there did not seem to be a strong Fair Use case to be made. The Euro company was willing to forgive and retract the YouTube complaint after they were assured “you will not lose any legal rights as a result of your retraction.”

However the following dilemma arose. This company had a different e-mail address and domain name at the time of the 2008 complaint and they got the following letter from YouTube about the mismatch.

CCA does not match the email address blur

It took a while to come up with a solution but the Euro company was made to understand that the only workaround for the mismatched domain name was that I/we would submit a counter notification with YouTube that in no way was meant to challenge them as copyright holder and promised to delete it as soon as we’re able. (And the company agrees not to pursue legal action in this scenario.)  14 days after the counter notification I got control of the clip back and immediately deleted it. So the lesson re. the domain mismatch is that is is very easy to imagine a less cooperative company that had lost all records of their YouTube copyright infringement claim, in that instance a user would be stuck with the strike forever thanks in part to such a e-mail mismatch.

I’m pretty sure there is a way of getting Claimant Email re. the copyright infringement notice at the time of the complaint being issued.  It was not included in the takedown notice, but I think is available on YouTube if you log in to Copyright Notices section of your Video Manager and click on the correct link.

Fair Use challenge

In this last case we mounted a Fair Use defense because the offending clip was one of several Bollywood clips in my YouTube collection. The common thread in all of them was Western pop culture seen through the lens of South Asia. Or as we put it in a letter to the Bollywood company “for the purpose of illustrating how Western culture morphs as it spreads throughout the globe.” We wrote them asking for a retraction of the strike but also indicated that if we could not reach agreement, we would file a counter notification citing Fair Use (below). After a month or so without reply to our postal mail or e-mail we proceeded with the counter notification.  I call this “Curatorial Fair Use” because the excerpt is transformed by my selecting it, taking it out of the context of the film, and placing it in the new context of my exploration of a theme.Rajshri counter notification form blur

During the 14 day period the Bollywood company did not challenge our counter notification, which automatically results in having the clip restored (see notice below).  I imagine YouTube users can only rely on anecdotal information as to how often the objecting company acts on a counter notification. One wonders if YouTube user with a certain amount of risk tolerance might mount a challenge (flimsy or otherwise), and hope to get the clip reinstated as the result of bureaucratic inaction, then delete it. This being something of a end-run or Hail Mary pass to get a strike removed. I’m not endorsing this, just speculating.

YouTube content has been restored blur

Conclusion

As a postscript I’d mention that 2010 seemed to be a high water mark of aggressive infringement claims and takedowns by “copyright maximalists.”  For example in the years since the Bollywood claim, the same clip appeared all over YouTube and remained there.  What became more common was for the copyright holder to monetize the “infraction”, that is – place a video commercial before the clip or a static ad to the side and make money from that. In a users Copyright Notices section of their Video Manager there is a list of infringement claims.

Matched third party content remix

The actual strikes will say “Removed” but if it says  “Matched third party content” and you click on that, you’ll be taken to a page that says “Ads might appear on your video” (below) with a number of options. Such as “Remove song” or “File a dispute.”  The other notice that is shyof removal is “Video blocked in some countries” which in my case is Germany.  I hope this saga is useful to you, please write me if you have your own YouTube experience to share.

Ads might appear on your video blur

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Citizen Archive, Citizen Archivist & Curatorial Fair Use

I’m writing about Citizen Archives for two reasons. First the term seems to fit some of my video endeavors.  Second it seems like a new-ish expression/concept I’d like to explore and promote.

“Citizen Archivist” has been in use by the National Archives since 2010, which is great.  They have created a Citizen Archivist Dashboard. This appears to be a way of crowd-sourcing or deputizing citizens to help label/describe archival materials *and* even contribute their own photos.  Bravo!

With the exception of individuals contributing their own photos (which is really noteworthy), the activities seem to center on NA assets and the recruitment of archivist helpers.  That is great, but very different than an individually owned and operated Citizen Archive.

This is the story of one Citizen Video Archive.

Archive =  naturally occurring and containing contemporaneous and candid documents

pd over both racks of tapes

Paul D. u-matic video archive circa 1984

I’ve been collecting videos since the mid-70’s. Because I have always worked in video & TV (as an editor), the term “amateur archivist” never seemed to fit.  Instead I would kiddingly refer to myself as a “semi-pro archivist.”   Whether I’m gathering photos from magazines, shortwave radio recordings or off-air/cable TV recordings, I’m saving the material for two reasons. Either I think it’s important or entertaining (appealing to my off kilter sensibility). Second it is “source material” likely to wind up in a media collage of mine, which I’ve been doing since I started in video. The bulk of my off-air (off-cable) collection ranges from 1980 to 1986 on well over one hundred, one hour tapes, representing over 2000 clips.

I’ll postpone for a later date discussion of whether archive, library or collection is the best word here.  Though an imperfect fit, “archive” is better than “library.”  These video recordings are the documentary by-products of work and life processes and not neat, complete units.

Here is some “time and place” context.  There was no mandate to start my collection other than one I gave myself.  I had been working in cable television since the mid 70’s, starting with NYC Public Access. But getting cable TV *in my home* in 1980 was a revelation.   The number of cable networks hadn’t exploded yet but the variety still seemed huge.  International/ethnic programing was especially new and interesting to me.

My 80's u-matic recorder and sample 3/4" tapes

My 80’s u-matic recorder and sample 3/4″ tapes

That same year (1980) I purchased my first video recorder a Sony U-matic. (VHS existed but was rare.)  The tapes were the size of large hardcover books and only held an hour, so I tended to record snippets of programs I happened upon. (There was no timer.) On the downside this meant the recordings were truncated. On the upside, thanks to this type if “in-camera editing”-if you will- I could fit 15 to 25 clips on one tape.

Log aka database 3x sample from my collection

Log aka database 3x sample from my collection

Here are 3 photographs that sheds light on a process of how a video library (Citizen Archive) came to be and was preserved, spanning three decades.

80's 90's 00's acquisition, edit and digitize

80’s, 90’s, 00’s acquisition, edit and digitize

1) U-matic off-cable harvesting (early 80’s)   2) compiling theme reels on U-matic (early 90’s)  3) digitizing to DV tape or DVD early 21st Century

Theme compilations x-fer'ed to DVCPro or DVcam

Theme compilations x-fer’ed to DVCPro or DVcam

In this VideoCulture blog I’m going to try to explore the idea of a Citizen Archivist and Citizen Archive.  It connotes a public spirited and/or posterity-conscious effort to preserve media that is increasingly likely to be lost. Some signature qualities that would distinguish it from an amateur hobby might be the following…

•Cataloging the archive so items can be easily reviewed and accessed

•Some professional skills working in the medium
(or credentials in the media/archival/library professions.)

•A history of somehow sharing the collection and/or its catalog

•A history of preserving an archive over a period of time and migrating the media from one format to another for preservation purposes. (For example, analog to digital)

This list is a first crack at a description and remains a work in progress.  Please don’t hesitate to write me and suggest other qualities that might define the Citizen Archive.

The idea of “sharing’ is central. For me and many others, the sharing arc leads to YouTube.  Once collectors only shared with peers and friends, then YouTube created a distribution outlet. In a way YouTube became the Endgame or video godhead 🙂

I believe Citizen Archives and Archivists are doing “God’s work” in preserving and sharing the stuff of our media consciousness. The gaps left by industry and the public sector are huge, it has fallen to the everyman and everywoman to help. The zeitgeist of the electronic and digital age is to look forward to tomorrow and the new. There is too little interest in preserving “yesterday’s news.”  Happily much of what I watch on YouTube gives evidence that runs counter to this –vintage videos are being preserved and shared. Unhappily the YouTube accounts of these Citizen Archivists (CA) are at great risk. The flotsam and jetsam that occupy our media mind are ephemeral and endangered.  Ephemeral because they are not preserved, endangered because of maximalist copyright enforcement.

Orphan Film is a key concept that needs to be explained to the understand the role CA’s often play. An Orphan Film is something that was made, served its purpose and was abandoned by its owners.

orpahn works 3x

There is a growing awareness about orphan films, footage and videos along with the challenges of legally preserving them. Some outstanding individuals have made it their calling to preserve and/or re-purpose such films, such as Rick Prelinger and Craig Baldwin. Others like Professor Howard Besser are engaged in raising awareness and helping others navigate the complex issues involved.

Here is where the Rubber Meets The YouTube Road

Citizen Archivists are saving videos from oblivion and deserve respect and recognition.  I enjoy the fruits of their labor through YouTube. Yet Citizen Archivist (C.A.) videos and the accounts they operate lead a precarious existence on YouTube. The CA is constantly under threat by aggressive copyright maximilists who issue complaints aka takedowns on YouTube.  The CA typically knows better than to post any current product of Hollywood, Television or anything that still has an active life in the marketplace. This caution is no protection from Copyright Harshies (I’m going to coin this expression as an alternative to Copyright Maximilists.) My next post will be about my struggles and victories in challenging such complaints concerning my account PaulJD2006 on YouTube.

PaulJD2006 grid 2 fin

CA’s operate in a grey zone, I’d like to see them come out of the shadows, get together, develop rules of the (YouTube) road and get some respect.  Amateur and Citizen Archivists contribute a lion’s share of what I watch on YouTube. I suspect YouTube viewers over thirty-something, skew towards vintage videos.  These videos have a grey legal status yet are a form of free mojo or magnetism for YouTube, that draw eyeballs and excitement.  The CA contributes this “mojo” free of charge for YouTube but enjoys no status or protection in return. There are hints this is changing.

This brings me to my final point.  “Fair Use” is a central tenant in American law that protects (or is supposed to) parody/commentary remix and mash-up work on YouTube (and elsewhere).  To enjoy Fair Use protection the work is supposed to be transformative.  Vintage video clips posted by CA’s are not transformative but I think should enjoy something akin to Fair Use protection, if there is some kind of curatorial “value added” aspect or commentary, especially if the clip is an Orphan Film.  I sense there is both an emerging interest and a debate brewing about this and I’d like to help get the conversation going about “curatorial fair use.”  As of 11/2014 I have not seen any mention of “curatorial fair use” on the web.  This is another area where I’d like to get a conversation going, please write me or post to this blog if you have any thoughts on the matter.

As a postscript I should mention The Personal Digital Archiving Conference. Their mission statement articulates the contributions made by individuals to our collective memory. It was started by Jeff Ubois and I hope to explore their collective efforts in future posts.

As for video curation I’ll tease the topic by citing my two favorite video (curation) blogs, PCL LinkDump and VideoThunder.

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Public Image Viz-Efx ReMix Collage (1980)

When I used to do ‘video tours’ and regular screenings, the work of mine in most demand was the 1980 Public Image Ltd. performance that I called the “Pil Tape.” It was  also known as “Pil at Gildersleeves,” named after the NYC venue “Great Gildersleeves” where the band did an unadvertised ‘surprise’ gig on their first US tour.

I funded this video out of my own pocket, shooting it with the production help of friends on 48 hour notice from the band. The half hour video was never made commercially available …however after about 20 years, it leaked into the bootleg world.  I never had the band’s blessing to release it so, you’ll only find low quality bootleg versions on YouTube etc.

Pil performs at Gildersleeves 5/1980  (John Lydon & Keith Levene)

Pil performs at Gildersleeves 5/1980

Of the five songs I edited, just one – “Careering” relied on visual efx and heavy collaging with archival material from my collection. I had no money for clearances so nothing was cleared.  I use the word “collage” here because remix and mash-up don’t seem to fit.  Yes I’m exercising a lot of artistic license with vintage archival material but I’m  just trying to augment or enhance the song visually (like many a music video).   

Pseudo "film" projections made in video post-production

Pseudo “film” projections made in video post-production

More so than a commercial music-video, the best analog might be the work of Adam Curtis of the BBC.  Though his documentaries explore history and tell factual stories, he uses the vast BBC archive exercising great artistic license, not to merely illustrate a story or history but to make something that arrives at higher, impressionistic truth. Sometimes it’s humorous/absurd, surreal or (as they say in film school) mytho-poetic.  The Pil video of mine predates his work, but he remains a role model for me and the collage/mash-up form.

Galacia birthplace of Fidel Castro's Father.

Galacia birthplace of Fidel Castro’s Father.

Though the lyrics of “Careering” are beautifully and artistically vague, most people take them as being connected to the Troubles of Northern Ireland (circa 1980). I think that’s valid but the lyrics go beyond that particular struggle to something more timeless and universal. That timeless aspect inspired me most.  So in this sample we have, what looked to me, like an archaic Irish stone dwelling (actually from Celtic Galicia) and into the doorway I inserted a Englishman (middle panel) with a frilly cuff offering a toast at a royal banquet. A deliberate dislocation between the indigenous and the imperial.

Pil guitarist Keith Levene

Pil guitarist Keith Levene

Careering (some lyrics)

 Across the border, The pride of history, The same as murder, Is this living(?)

 He’s been careering

Beg, middle & end of transition from Lydon to 'cross' image.

Beg, middle & end of transition from Lydon to ‘cross’ image.

Molly Maguires

Molly Maguires

In addition to collecting videos, I had a long history of collecting magazine images. (Think of the dorm room in the 1968 movie “If…”) I used a 50/50 mix still images and documentary b/w footage to make pseudo “projections” behind the band in video post-production. I was able to do all this because I had access to a state of the art (1980) editing room ℅ where I worked.

Pil aerial 2x sm

Infrared map of NYC

On the theme of borders and rebellion, I used a good deal of footage from the 1953 East German rebellion.  Mixed in with that are bits of a NORAD monitoring station, that stands in as a ‘state’ command & control center. The crouching GI (up top) next to John Lydon is from a (post A-Bomb) Hiroshima film.

Pil film 3x sm

I’ll stop here as I don’t want to over-explain and remove all the evocative mystery from the work. Compared to the tools today, the ones I used were very primitive but I was very happy with the results, I just wish I was free to post a full fidelity version.

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1976 Video Mash-up

In 1975 I was running the Porta-pak room for Manhattan Cable Public Access, making these “portable” video cameras available to members of public who wanted to make their own programs.

At lunch I would shoot on East 23rd Street. The next year I was able to use some high-end tools to make my first video “White Collar Funk” that includes this superimposed mash-up. (The half-hour video is over long, so the above links are for hi-lites.)

I used pop-culture images and video samples (such as Soap Opera Digest, Soul Train and Japanese sic-fi to name a few) to create this montage.  Looking back on it now it all seems primitive but the thread running through the whole ReMix is the low-rent underside of culture and urban life, which felt like an antedote to the slick 70’s.  The key bit of narration comes from an article from that time by art critic Gregory Battcock who wrote about nightlife as well as art for the Soho Weekly News.

Soho Weekly News 10/1975

Soho Weekly News 10/1975

Rereading the article I was struck by how much it presaged Studio 54. It’s beyond my pay-grade to say what is decadent, but with the near naked bodies and an elephant, this party does sound like like the Fall of Rome:)  In this rarefied precinct of wealth and fashion, this camp masquerade version of the working class, viscerally struck me as creepy. I suppose context is everything.

Conversely there is a downtown or bohemian version of this (my) affinity for the underside, roughhewn, homestyle, DIY… whatever you want to call it, that seems more affectionate than the ironic antics at this party. To wit, two items from my collection that are in sync with the sub-cultures I’m trying to reference in this mash-up, one from low rung of Public Access show-biz, the other from early hip-hop (but 80’s vintage).

The ‘underside’ or camp/schlock sensibility herein is described in some detail in the following posts.

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Schlock-o-philia

Love of Schlock is central to my (80’s) video collection.  Most friends in my inner-to-middle circle would understand “Schlock Connoisseur” intuitively and possibly share this love.  I met someone recently who found this interest of mine er ahh… puzzling. How do you explain it to someone?  Without writing a treatise, a starting point for me might be growing up loving MAD Magazine in the 60’s.

Mad Magazine (60's

Mad Magazine (60’s

From the same wellspring as MAD Magazine come other gurus of this sensibility in the form of NY comedy writers like Mel Brooks, the genius who gave us The Producers.  In that movie we have another Olympian schlock giant, Lorenzo St. DuBois portrayed by another genius Dick Shawn.

Also 70’s  punks (my cohort) unlike their older hippie brothers had a highly developed love a trash, camp, kitsch & cheese… whatever you want to call it.  In the early 80s the gang at Club 57 delved deeply into the pop-schlock world and many important cultural players of the 80’s emerged from this referential free-for-all.  Today Juxtapoz Magazine carries the torch of low-brow art and low brow aesthetics.  All the above are part of an old bohemian tradition “nostalgie de la boue” that is… a yearning for the mud : attraction to what is unworthy, crude, or degrading. One limited to the boho or gay worlds, trash-chic is here to stay.

Club 57 Monster Movie Club (early 80's)

Club 57 Monster Movie Club (early 80’s)

Weirdos in all their 70's glory

Weirdos in all their 70’s glory

Before the punks there’s  John Waters – Pope of Trash!  He’s probably as done more than anyone to bring schlock-love into the mainstream. Among his influences are Jack Smith and John Vaccaro.  My kind of Connoisseur does not look down on trash or is snarky about it. On the contrary there is real affection.

Waters - Vaccaro - Smith

Waters – Vaccaro – Smith

My endeavor here is not completely frivolous. Where do those mainstays of American culture like Pop Art (& sources), SuperHero movies and rock music come from?  They all started in the gutter, all were once considered schlock. Now part of a US brand consumed around the world.

w_rhol 2x

I’m trying to make a case that pop expression, artifacts, sub-cultures, etc. overlooked in their time become part of the Canon later on.  Think Velvet Underground or 1966 garage rock.  They were shunned or looked down upon in the near term, then later became huge influences (on 70’s rock) and entered the Canon.

Garage Rock

Garage Rock

My ego doesn’t require respect for my Schlock Connoisseur pursuits and archive.  However I suspect there might be a bias in a curation or Fair Use YouTube context, compared to allegedly redeeming or uplifting material… which more enjoys more status. Whereas schlock is considered frivolous.

As far as Fair Use is concerned I’m please to report the law and more enlightened minds are on my side.   I return to “Reclaiming Fair Use: How To Put Balance Back In Copyright.” page 88

 ABC’s “Good Morning America” used clips from Robot Monster, The Brain from Planet Arous and Plan 9 from Outer Space on a segment about fascination with extra-terrestrials. The court found fair use appropriate, because the clips had been recontextualized, in a discussion about the representation of aliens in popular culture. The court  ( judge in the final Hofheinz case) emphasized that the law “does not explicitly distinguish between entertaining and serious, plausible and implausible, or weighty or frivolous commentaries, and I do not propose to engage in such subjective line-drawing”

Finally I would point to public libraries, at least the ones I’m familiar with in the NYC area.  They carry lots of trashy, popular movies, etc. That’s good, I’d much prefer that to them filtering it out.  It is a wise strategy since the gutter has been known to produce cultural gold:)

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Schlock Connoisseur

I’m a self-styled Schlock Connoisseur.  This post is inspired by The Tim & Eric show on Adult Swim.  I’m constantly amazed by their skill in recreating the look and feel of cheesy 80’s videos.  Most of the Schlock Gems from my collection are from the early 80’s, before vhs home recording was common. So as a bit of a tribute I post some image nuggets here from my ZippyClip page.

ZippyClip ShowBiz

ZippyClip ShowBiz

Early Morning NYC 4H - Who Knew?

Early Morning NYC 4H – Who Knew?

ZippyClip B-wood

ZippyClip B-wood

For The ZippyClip Experience mash-up I’m using the actual footage for a kind of Schlock Manifesto (in kind of a video wall).  I reprise some images above since they are small in the grid and go by quickly. Since the ZippyClip Experience is a mash-up, it enjoys some protection as ‘appropriation art‘ or ‘transformative work‘ involving ‘commentary.’

However as I have learned the hard way, posting the clips as ‘stand-alone’ items -that have not been cleared- is precarious.  I used to have these clips posted to my PaulJD2006 YouTube account, but YT closed it down for infringement which I am contesting.  Here is more of what the world is missing out on:)

Other ZippyClips

Other ZippyClips

This situation is especially frustrating because I would describe most all of these as “orphaned clips.” Which is to say they would not be on the web but for my having archived, curated re-presented them.  It’s debatable whether the creators even kept copies.  I wish there was a YouTube safe zone for these “orphaned clips” that are definitely not competing against some commercial product.

I’ve been thinking a lot about the status of (vintage) video collectors who post on YouTube. These collectors and their videos are a central source of Youtube’s mojo and stickiness.  However collectors who share via YouTube, too often have accounts with short lives because of copyright infringement claims.  My enhanced understanding of the issues involved come via this book “Reclaiming Fair Use: How To Put Balance Back In Copyright.”  I heartily recommend it.  It’s also a good introduction into the Fair Use / ReMix / Mash-up Culture.

Besides tipping my hat to the Tim & Eric show, I also want to recognize theses blogs that continue to inspire me as they cast their wide net for schlock gems, PCL LinkDump and VideoThunder.

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Mash-up History

In this YouTube age where Mash-Ups are commonplace, I felt the need to establish a timeline for my work in that vein.  My first major video mash-up was InterProbe (posted & described in the earlier Video Archive post) made in 1982.  It premiered in 1983 on a series by Artists Television Network that was cablecast in Manhattan.  Press release follows.

InterProbe Press Release

Before YouTube it was hard to get exposure for this kind of work, so circulation was very limited.  However I did try to get it in front of some TV gatekeepers.  One such overture was to Al Schwartz, VP at Dick Clark Productions. I had become aware of a similar program they made “Uncensored Channels: TV Around the World with George Plimpton” and decided to contact them. Al was kind enough to write back with a good review.

InterProbe Dick Clark ltr crop 2

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