5.2.13 RICHARD PRINCE

This article originally appeared in the 5.2.13 issue of Metroland.

            The New York federal appeals court issued its decision in the Cariou v. Prince case last week, and it’s a gooder.  The case involves famed (or perhaps infamed) appropriation artist Richard Prince’s series of manipulated images using Philip Cariou's photographs of Rastafarians, all done without Cariou’s permission. 

            A district court last year ruled that Prince had infringed on Cariou’s works, finding both Prince and his gallery liable for infringement, ordering the infringing works to be impounded, and scheduling a hearing to determine damages and an award of attorneys’ fees.  The court ruled on these things as a matter of law, that is, that the issues were so clear there was no need to send any questions to trial. This ruling sent considerable fear and loathing through the art world. If allowed to stand, this broad and brutal decision would render appropriation art, arguably the most significant art movement of the last 100 years, an endangered species.

            In a stunning rebuke, the appeals court reversed the ruling, and held that all but five of the thirty Prince works were, as a matter of law, protected from any claims of infringement by the fair use doctrine, and instructed to trial court to determine (using the right standards this time) whether the other five works were infringing.  The appellate court cleared up a number of things that have made navigating fair use so treacherous for so long.

            The court reminded the world that copyright law exists not to protect creators, but for the betterment of society, that too strong copyright protection can work against that goal, and that fair use protects our right to express ourselves by referencing the works of others.  Then the court lowered the boom.

            Citing some old and largely discredited caselaw, the lower court had ruled that Prince’s works could not be fair use because they did not make any comment or criticism about the appropriated Cariou photographs. The appellate court announced bluntly that no such requirement exists, and that fair use can be found if a new work simply provides a “new expression, meaning, or message,” regardless of whether it comments upon or parodies the original work.

            Then the court tackled the thorny issue that Prince, ever the provocateur, had testified in depositions that he “doesn’t really have a message” and that he “wasn’t trying to create anything with a new meaning or a new message.”  (Prince’s deposition transcript is available online, and throughout it appears that he’s enjoying being deposed more than any litigant in the history of litigation, and succeeds, over hundreds of pages, in saying almost nothing.)  The court noted that most artists in his position would fall over themselves trying to explain the transformative nature of his or her work, but Prince didn't, and the fact that Prince refused to do so didn’t matter.  What mattered was whether new meaning could be reasonably perceived. The court announced that it perceived it and held that 25 of the works were of a completely different character and employed different esthetics than Cariou’s photographs.  Fair use, bitches! Boom!

            The court then admonished the lower court for making way too big of a deal over the fact that Prince aimed to make money from his work, noting that for almost twenty years the commercial nature of a work was usually not a very important fair use factor.  Everybody tries to make money with their work.  That's how they eat.

           

            Then, noting that the lower court had held that Prince took more of Cariou’s work that was “necessary”, the appellate court said “[w]e are not clear as to how the district court could arrive at such a conclusion. In any event, the law does not require that the secondary artist may take no more than is necessary.”   Wow! Down goes Frazier!

            Finally, the court focused on the five works it was sending back to the district court.  These are the works you may have seen in the press, Cariou’s photos with blue blotches (referred to in the decision, oddly, as “lozenges”) over the Rasta faces and some crude cutting and pasting, like putting a Stratocaster in a Rasta’s hands.

            The court ruminated on the similarities and differences between Prince’s works and the Cariou photographs, and decided,  rather strangely, that the district court (which had created such an incredible mess in the first place) was somehow “better situated” to decide whether these were fair uses or not.   I think the legal term for this is "punt".  This probably means a trial, if this thing doesn’t settle.  That’ll be some fun.

           This is a really important decision that opens the fair use door wider than it’s ever been and provides collagists and appropriation artists of all types greater confidence to follow their muses without fear of getting sued by some jerk with Lotto fever.  Hopefully, these big general fair use ideas will finally carry over to musical works, where a couple bad decisions and a whole lot of record industry money has, for over 20 years, stifled the free use of sampling in new recordings.  I think that’s about to change.

Paul Rapp is an entertainment attorney in Western MA who’s going to the drive-in tonight and plans to fog up the windows for the “coming-soons”.

4.18.13 SOMETIMES I FEEL LIKE A MOTHERLESS CHILD

This article originally appeared in the 4.18.13 issue of Metroland.

Urgh.  The events in Boston are gonna further wreck your freedom.  Just watch.  Last night I was listening to a special program from WBUR about the bombings, featuring listener call-ins.  The first call was from a guy from Georgia indignantly demanding to know how something like this could happen after the billions of dollars we’re spent since 9-11 on homeland security.   Sure, it’s an utterly moronic question, but you know it’s being echoed everywhere.  Why can’t somebody do something?

            And, of course, being a moronic question, it is destined to be asked in the Halls of Congress.  In times of crisis, even an unpreventable crisis like this appears to be, Congress has to do something under the fiction that we can insure that nothing like this ever, ever happens again.  If Congress doesn’t do something, Congress appears impotent.  If Congress doesn’t do something, anything, the terrorists, whoever the hell they are this time, will have won!

            And, unfortunately, there is a something Congress can do that’s already before it--- CISPA (Cyber Intelligence Sharing and Protection Act),  a hideous little law being pushed by House Republicans, those buffoons who are against government, except when it comes to controlling the little guy.  The proposed law would allow any company that collects online data from people, essentially every company you use to get online and every company that you visit online, to be immune from any lawsuits arising from the company’s sharing all of that data with the government.  In other words, those privacy policies you see on every website you visit, that you think protect you?  They’re meaningless!  If your ISP channels all your emails to, say, the FBI, there’s nothing you can do.

            CISPA is ridiculous and overbroad, and it trumps every other law on the books that’s supposed to be protecting your privacy.  As I write this, it’s sailing through the House and in its way to the Senate.  The White House has said it will veto the law unless it contains privacy protections, like limiting the immune shared information to stuff that doesn’t contain individuals’ identities.  But that’s not what the Republicans want.  They want their foot on your neck.  You just know that some pantload Senator is going to get on the floor and declare that he knows for a moral certainty that had CISPA already been the law that the Boston Marathon tragedy would have been averted.  And the Fox News will amplify it.  And then how is Obama gonna veto the very thing that would have saved those precious lives?

            Privacy schmivacy.   You know, if you ain’t doin’ nothin’ wrong you got nothin’ to worry about.  Right?  Time to get your VPN jammin’.

            Moving on.  A couple months ago a young libertarian-leaning House staffer issued a report that said, essentially, that the entire Copyright Act was a piece of crap that was being used to block innovation and creativity and that it should just be thrown out.  The dude got fired a couple days later.  But just a few weeks ago the Register of Copyrights, Maria Pallante, marched up to Capitol Hill and pretty much said the same thing.  She told Congress that it was time for the “next great copyright act,” noting that the current laws, created largely in the 20 years leading up to the 1976 Copyright Act, simply don’t address the digital age.

            While I’ve never much trusted the Copyright Office and the Obama Administration regarding IP issues, Pallante’s remarks were really quite revolutionary and on the mark.  Here’s a money quote that alludes to the corporate hijacking of the Copyright Act with pages of impenetrable technocratic nonsense:

Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it....  my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

            Well hello!  She went on to emphasize that the public good is what copyright law is supposed to be about, and that the discussion for the new law had to include not just businesses, but parties representing the public, the ultimate end-users of IP.  She listed some of the things that she felt needed to be done, including dealing with orphan works, reforming the music marketplace, creating fairness in licensing, reevaluating what rights a copyright holder should have or not have, making sense of fair use, and restoring a robust public domain by shortening the automatic term of copyright.

            It’s a nice start.  Given that the last go-round took over 20 years at a time when copyright law was an arcane subject that directly affected very few, it’s gonna be interesting, to say the least, to see how this plays out.

Paul C. Rapp is a local IP lawyer and volunteer firefighter who, like Kenny Loggins, Lou Reed, Paula Cole, Human League, Matisyahu, and Barbara Streisand, believes in love.      

4.18.13 BOW DOWN

This article originally appeared in the 4.18.13 issue of Metroland.

Graham Parker and The Rumour

Swyer Theater, The Egg

April 10, 2013

            I won’t go into the strange fable about how Judd Apatow got Graham Parker and the Rumour back together after 30+ years, nor the long, strange history of Parker, one of our more prolific, accomplished, and cerebral songwriters, nor why he’s been relegated to obscure troubadour status for much of the last 20 years.

            I will tell you that last Wednesday’s show in the Swyer Theater was one of the most breathtaking concerts I have seen in my life.  Last November, I caught their 2^nd reunion show in Poughkeepsie; less than 30 seconds in I realized I was weeping, overwhelmed by the truth of the sound. Last week’s show had that and more; to paraphrase Mike Eck, it was like riding in a car with a extremely skilled driver going very, very fast.

            Not for nothing that in their heyday (1975-1980) GP & The Rumour were often compared to The Band and The Rolling Stones, or that Bruce Springsteen famously said that this was the only band he’d spend money to see.

            They were that good.  And, despite the fact that they now look like a bunch of retired college professors, they still are.  The rhythm section of drummer Stephen Goulding and the incredible bassist Andrew Bodnar were locked down, especially on the shuffles and those white-boy reggae beats that they simply own.  Guitarists Brinsley Schwartz and Martin Belmont and keyboard Bob Andrews all spent as much time listening as playing, but when they each played it counted, and what they played was delicious.  This was a perfect team of master craftsmen doing things better than anyone else.

            Which brings us to Mr. Parker.  First of all, damn, what songs he’s written.   Daring, poignant, blunt, beautiful... Second, having this band behind him and playing on larger stages allows Parker to be not just a singer, but an artist, a true artiste, maybe for the first time in his long career.  And he wears it so very well.  The one-time angriest of the angry young men still spits fire, but now it’s more directed, more knowing, and more tempered with wry humor and compassion.   And when the anger and indignation are turned toward society’s foibles, nobody does it better.  On two of his new tunes, Parker turned actor with a laser-like focus: stalking the audience on the Winston Churchill-quote inspired A Lie Gets Halfway ‘Round The World, or repeating the ominous phrase “we got a reader here...why you readin’?” in Last Bookstore in Town.

            The audience could have been a bunch of long-of-tooth freemasons—overwhelmingly male, white and old, like me.   And that’s too bad.  The new “traditionalist” singer-songwriters and their fans, with all their affectations and studied brooding, could learn a lot about a lot from this guy and this band.

4.4.13 LIKE SWELL AND SO'S YOUR OLD MAN

This article originally appeared in the 4.4.13 issue of Metroland.

A couple of months ago I wrote about an epidemic of copyright infringement lawsuits brought by porn companies against many thousands of people.  These lawsuits were not any different from the mass infringement suits of few years ago by the recording and film industries, except (a) there were a lot more of them,  (b) they involved porn, and (c) judges are a lot more attuned to the world of the internet than they were 5 or so years ago.   Essentially, all these cases were postured in a way that the porn companies were demanding that John Doe defendants pay them thousands of dollars or the defendants would be publicly named in a porn lawsuit. 

            I had a defendant in a suit in federal court in Massachusetts, one of 80+ John Does in one case, all accused of downloading a moist towelette of cinematic brilliance entitled Dirty Babysitters #3.  A bunch of defendants paid the man, and a bunch of us fought it.  A couple of weeks ago the judge (following the lead of a lot of judges all over the country) threw the whole thing out, ruling that (a) it was unfair to lump all of these defendants into one lawsuit, that the porn companies were using the courts as a business model more than vindicating any rights, and (b) there was not sufficient proof that the defendants, holders of the internet accounts on which the infringing activity took place, were the individuals who actually did the alleged downloading.  Boom!!!  Buh-bye trolls!

            Moving on. When did the City of Albany become stupid?  Culturally moronic?  Last December, Albany code enforcement shut down a burlesque show at the Lark Tavern, apparently based on a “tip” from some clean-up-the-neighborhood types.  The reason?  Well, it’s “burlesque”, so that means like, nekkid wimmins, right?   Really?  In this century?

            Not content to look merely dumb, but apparently in an effort to turn Albany into a laughingstock and embarrassment, code enforcement has now at least twice tried to shut down EDM shows at the Armory.  Now, as we’ve discussed here before, EDM (electronic dance music) has exploded in recent years as the prevalent and preferred type of live entertainment for the vast majority of kids, who we’ll loosely define as persons under the age of 25.  It’s happened, beautifully, outside of the traditional music industry, it’s about the only thing that matters at events like Coachella and Bonneroo, even though you don’t hear much about that because the media sends middle-age white guys to cover these festivals, and most middle aged white guys don’t have a clue, and are in bed and asleep before packed tents fire up with this special brand of madness.

            EDM performers (often referred to, deceptively, as “DJ’s”) are performers and celebrities in their own right.   And yes, they perform; in fact they typically will play the audience in real time much more than your typical “live music act” like a singer or a band.  Their computers are their instruments, their lights are their show.

            The Armory has been running EDM shows ever since a local promoter booked a DJ named Bassnectar a couple years ago and the show sold out before it was officially announced. Apparently there was a single tweet from Bassnectar to his followers.  These shows typically sell out, and fast.  And we’re talking 3000-4000 folks a pop.  Yup, the Armory’s filling a need, and if you’re surprised about the scope of this, it’s because it’s a huge subculture that doesn’t include you.   You’re old.

            There have been incidents; too many people show up, or when the shows let out, thousands of kids hit the streets at once with fairly predictable and unfortunate results.  The Armory has, I understand, beefed up security and taken other steps to lessen the neighborhood impact.  I’ve heard talk about rampant drunkenness, which is a little suspect, as the vast majority of the kids at these shows are under 21 and don’t get served.

            But the City is still trying to shut them down.  Now, if the neighborhood impact is a real problem, I’m sure there are ordinances regarding noise, crowds, and the general well-being of neighborhoods the City could rely on.  If it is the problem, there could be hearings, fact-finding, something resembling due process to come up with a fair and reasoned resolution to the problem.

            But that would require effort.  What City code enforcement has done is to try to disingenuously shut down the EDM events claiming that the Armory doesn’t have the right permits.  The Armory has permits to have concerts, but not, apparently, to act like a nightclub.  It’s been the City’s position, pathetically, that because there’s a “DJ” performing, these EDM shows are indistinguishable from some guy playing records at a bar.  And that the shows can’t be concerts because there’s no “fixed seats” on the floor. 

            A judge last week refused to uphold the City’s attempt to stop these shows, stating the obvious, that “fixed seats” aren’t a rational measure of whether an event is a concert.

            Burlesque.  DJ’s.  City code enforcement is either hopelessly ignorant of the world around it, or it’s got an agenda that’s not based on the rule of law or common sense.  Neither is acceptable.

Paul Rapp is a civic-minded IP attorney who is salivating at the thought of seeing, along with his fellow old people, the best rock band in history at the Egg next Wednesday.

3.21.13 Sanity

This article originally appeared in the 3.21.13 issue of Metroland.

            I’m happy to report that the Supreme Court got something right.  Some months ago we talked here about a case before the Court involving a Thai student who bought inexpensive English textbooks in Thailand and sold them in the United States for sixable profits.  The publisher of the textbooks, Wiley, sued, saying that this was somehow illegal.  At the center of this is a fundamental principle of copyright law (and of personal property law in general) called the “first sale doctrine” which stands for the rather unremarkable idea that once you buy something, it’s yours and you can do whatever you want with it, including giving or selling it to somebody else.  Wiley claimed that this principle didn’t apply for some reason to copies of copyrighted products purchased outside of the United States.

            Sound insane?  Of course it does, but that didn’t stop a jury from finding the Thai student guilty of infringement and awarding Wiley damages $75,000 for each title he brought into this country.  And it didn’t stop the Second Circuit Court of Appeals, the most influential federal appeals court in the land, from upholding the verdict.  And it didn’t stop the Ninth Circuit Court of Appeals, the second most influential appeals court in the land, from making a similar finding in a similar case.

            And the Supreme Court restored some sanity this week, with a 6-3 vote reversing the lower courts and announcing that the first sale doctrine applies to goods that are purchased outside of the country.  Now, we’re all quite used to (and sick of) years of Supreme Court decisions by what appears to be a totally dysfunctional and partisan court, votes that are always split “along party lines,” right?  Well, lookie.  As I’ve often said, IP decisions never seem to go that way, and this case was no exception: Justice Brewer wrote the majority decision, joined by Alito, Kagan, Roberts, Sotomayor and Thomas; Justice Ginsberg wrote the dissent, joined by Kennedy and Scalia.  WTF is right!  One can only scratch one’s head.

            The 72-page decision starts out with an exhaustive (and exhausting) but not terribly convincing statutory analysis and discussion of the legislative history supporting its decision.  Then it starts flinging some basic and practical reality: libraries are full of books printed elsewhere; most new books sold in the U.S. are printed off-shore, many books don’t even say where they’re printed; “automobiles, micro­ waves, calculators, mobile phones, tablets, and personal computers” contain copyrightable software programs or packaging” that originate in foreign countries,  retailers of all types import mountains of copyrightable stuff overseas that’s already been sold once; how about museums wanting to display works created overseas that still have copyright protection?

            All these things would present huge issues and uncertainties if the first sale doctrine only applied to things purchased in the U.S..  The best that Wiley and the various amicus parties supporting it (including, shamefully, the Obama administration) could argue was that the law had never been applied that way, and that these were merely theoretical problems.  You know, the old “trust us, we’d never ever do that” routine.

            The majority, wonderfully, wasn’t buying this load of tripe, and wasn’t eager to open a Pandora’s box if it endorsed a copyright holder’s right to extraordinary control over copies of works manufactured and sold in foreign countries.

            Finally, and significantly, the majority smacked down Wiley’s, Obama’s, and the dissenters’ sniveling argument that the ruling would disrupt publishers’ long-standing business model of dividing up foreign markets and charging different prices in different countries as a way to maximize profits.  You know how we rant here from time to time that corporate America has hijacked copyright law?  How instead of promoting social good (as dictated in the Constitution), Big Media has mutated copyright law into a vehicle to prop up its outdated business models?  Well here it is in a legal argument before the Supreme Court—Big Publishing wants copyright law to protect the way it’s always done business, because to change would... it would... why, it would hurt profits and shareholder value!

            In a delightful passage that totally gooses us copyright geeks and portends more good things to come the Court ruled:

Wiley and the dissent claim that [today’s ruling] will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights ...the Constitution’s language nowhere suggests that [copyright’s] limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain. Neither, to our knowledge, did any Founder make any such suggestion.

            Damn.

            Expect a Big Media mad rush to Congress to “fix” this ruling.  Here’s hoping the Obama administration has learned a lesson here and starts to watch out for us, not them, for a change.

Paul Rapp is an intellectual property attorney from the Berkshires who, unlike you, wouldn’t mind if winter lasted forever.