Wednesday, November 26, 2014


This article originally appeared in the 11.26.14 issue of Metroland.

Last week, Price Chopper made the beguiling announcement that it was changing its name to “Market 32”, apparently a reference to the company’s first store (the chain was originally called Central Markets) which opened in 1932.  This is a little sad. Price Chopper is one of those quirky brands that helps define the Capital Region.  I really liked the old logo with the ax in the lady’s head, but the current logo is still plenty weird and wonderful.  And now Price Chopper (which we gleefully refer to as “Prick Chopper” or the Frenchy derivative “Prix Shoppez”) is going the way of the buffalo, to be replaced with a generic, antiseptic-sounding name.  As my friend Doug commented on Facebook, they should call their fish department Catch-22.  Sheesh.

            Anyway, in middle of this, a controversy broke out concerning a t-shirt  featuring a Price Chopper look-alike logo that said “Ghetto Chopper” with a silhouette of a gun in the place of the ax in the (now lady-less) coin.   The shirt was the creation of local artist Chip Fasciana and notwithstanding considerations of taste and propriety, it looked great. 
            Social media blew up; bloggers and commentators were alternatively decrying and praising the shirt.  Apparently Price Chopper sent Fasciana a C & D letter demanding the shirts be pulled from the market.  I was tagged in several Facebook posts from people wondering what I thought of all of this, which was really cool!  Thank you, my people!  Here we go!

            Welcome to the wacky world of trademark parody.  We usually talk here about parody and fair use in copyright law, when you can copy somebody else’s creative work without it being an infringement; it’s messy, and involves the juggling of a bunch of factors like how much is taken, how it’s used, and whether the new work is “transformational”, whatever that means. 

            For trademarks it’s a little different.  A trademark is a commercial name, a designation of the source of a good or a service.  A trademark can be words, a logo, even a color or sound, almost anything that functions to identify where a product comes from. 
Trademark infringement occurs only when there is a likelihood of confusion as to the source of a product.  No confusion, no infringement.  Did any of you think for a second that the Ghetto Chopper t-shirt was produced by Price Chopper?  No?  Well, OK then.  End of story, right?

            Not quite.  Look at this from Price Chopper’s perspective (for the record, I am a fan of Price Chopper, a devoted customer, I think it’s a great company, etc.).  They naturally would like this shirt to go away.  Hence the lawyers huffing and puffing and sending out C & D letters.  You’d do the same thing if your name were Golub.  Oh yes you would.

            They can try to argue confusion.  Years ago a court ruled that t-shirts saying “Things Go Better With Cocaine” infringed the famous Coke logo, because some outraged citizens’ group had organized a boycott of Coca-Cola based on what they thought was the company’s pro-drug t-shirts.  I suspect the citizens’ group was a front for Coke; I mean, are people really that stupid?  OK, outside of large swaths of the mid-west and south?

            This was one of numerous cases where a tormented judge tried to be the guardian of good taste. But considerations of taste should hold no sway in trademark law, and increasingly, they don’t.  Trademark parody is an accepted thing now; I’ve done some work with the Phish-fan art community, which has generated hundreds of logo parodies that insert cryptic song lyric references into major corporate logos.  Heck, a few years ago one t-shirt company sued another for stealing corporate logo parodies.  The corporations being parodied weren’t even involved.

            But what about taste?  A number of folks have said the Ghetto Chopper shirt carries racial overtones and is generally disgusting.  Is it?  (I recommend you to the always-brilliant Amy Biancolli’s discussion of this on her Times Union blog) For better or worse, the downtown Delaware Ave. Price Chopper has been commonly known as Ghetto Chopper since forever.  Does the gun push it over the edge?  Does it matter legally?

            No, it shouldn’t.  In fact, the more tasteless the parody, the less likely anybody’s going to think that the target of the parody is responsible.  A few years ago, a guy in Georgia was selling t-shirts with the Wal-Mart logo twisted into words like “Walocaust” and “Wal-Queda”; Wal-Mart, predictably and understandably, went batshit and sued.  The court, correctly, was unmoved:  “Indeed, the more outrageous and offensive the parody, the less likely confusion will result... [T]rademark owners, like public figures who seek the public spotlight, must accept the concomitant risk of public ridicule...” 

            There’s a couple of twists that I don’t have room to talk about, like the parody/satire continuum or the fairly new federal law outlawing famous mark “tarnishment”, but these things don’t change my basic view: the Ghetto Chopper shirt is entirely legal. 

            In the end, as you probably already know, taste won out; Fasciana pulled the shirt.  Which is totally his prerogative, it’s his baby.

Paul Rapp is a Berkshire backwoods barrister who hopes you all will tune in to “Paul and Ted’s Christmas in Hell” holiday radio extravaganza, which should air on WEXT 97.7 sometime in December.

Wednesday, November 12, 2014

11.12.14 NUTTIN' BUT NET

This article originally appeared in the 11.13.14 issue of Metroland.

Did anybody see this coming?  In the aftermath of the disastrous mid-term elections, leaving us ashamed of our country and fearful of the future, President Obama issued a startling call for pure, clean net neutrality.

            For those of you not playing the home game, a court decision several years ago rearranged the Federal Communication Commission’s presumed jurisdiction over the internet, leaving the web subject to the whims of the several monstrous corporations that control our access to it.  The results have been disastrous. We have some of the slowest and most expensive internet services in the civilized world.  Broadband comes to us through two lightly-regulated duopolies: cable (Comcast and Time Warner) and wireless (AT&T and Verizon). These duopolies are squeezing us dry, providing crap service, and shaking down big users like Netflix for preferential treatment, which has the double whammy effect of driving up Netflix prices while making it all but impossible for any Netflix competitor that can’t afford the bribes to compete.

            The FCC has been considering its reaction to the emasculating court decision.  The simplest fix is for the FCC to simply reclassify the internet as a “telecommunications service” and a “common carrier” like it does with telephones.  But the FCC has been wavering on this, afraid of being sued again by the likes of Verizon and Comcast.  Instead, the FCC has been floating trial balloons for various measures that fall short of what’s called “Title II classification”, none of which would prevent internet service providers from favoring some customers at the expense of others.  Over the past several months, the FCC has received an unprecedented 4 million messages from consumers, demanding that it do the right thing.

            The White House has been equivocating, saying a lot nice sounding things laced with what we in the legal business call “weasel words” that can be interpreted all kinds of ways, rendering the White House statements meaningless.

            Until now.  On Monday, Obama called for the FCC to reclassify the internet as a Title II common carrier, which would allow the FCC to bar ISPs from blocking, speeding up, or slowing down particular internet traffic.  Remarkably specific and wonky, Obama also suggested that the FCC “forbear” on various Title II regulations that don’t neatly apply to the internet.

            This is big.  It calls for a level playing field for anyone using the internet.  It is utterly sane.  And while it wouldn’t immediately cure all of our internet ills (things like universal service and data caps still need to be addressed), Obama has for once put himself in the voice-of-the-people position, the position he campaigned on, and is standing up to the corporate behemoths who would otherwise hijack the internet and a big chunk of our future.

            The reactions to Obama’s statement have been all too predictable and depressing.  It’s the sound of money talking.  The ISPs trotted out the same tired arguments that Title II classification was overbearing “government regulation” that would inhibit investment and innovation and competition.  Never mind that these companies’ investment in the internet drastically declined over the past five years and that innovation likewise slowed as a result.  Why?  Because there is no real competition in the internet service industry!  Duh!  Never mind that these companies have delivered to us a level of internet service that is the laughing stock of the rest of the world.

            Then there are the paid whores masquerading as elected officials and policy experts.  Some phony business analyst at Fox News used the word “Orwellian”.  Ted Cruz, who has reeled in a ton of campaign money from Comcast, etc., got headlines saying that net neutrality is the “Obamacare of the internet.”  Which, if we didn’t already know it, reveals Ted Cruz as a lying, pathetic, pandering, cowardly, racist, fascist little douchebag, an embarrassment to us all.

            What happens now?  Well, we wait for the FCC to issue a ruling, which may happen in December.  The FCC is an independent agency, so Obama’s prodding only goes so far.  And “independent” is a relative term.  Tom Wheeler is the chairman of the FCC, but he is the former chief lobbyist for cable and wireless industry, a position currently held by Michael Powell, a former FCC commissioner.  See how that works?

            Wheeler, who has been alternatively strident and spineless through this debate, is reportedly skeptical of Title II classification and wants everyone to know that the FCC is independent and can make up its own mind about these things.  The latest is that he’s considering a hybrid plan that will deem the internet as a Title II telecommunication service in its dealings with content providers, but keep it virtually unregulated in its dealings with consumers.  Huh?

            Which is a puzzling position for a guy who’s afraid of getting sued.  And it’s another way of saying “OK, we’ll protect the corporations with regulations, but you little people?  You’re on your own.”  Sigh.

Paul Rapp is a local IP and art and entertainment attorney who is getting ready to renew his call for the northeastern United States to secede from the Union.  And to take Austin, Texas, Asheville, North Carolina and New Orleans along with it.

Wednesday, October 29, 2014

10.30.14 KA-CHING

This article originally appeared in the 10.30.14 issue of Metroland.

When Apple rolled out the iPhone 6 a couple of weeks ago, most of us were too busy running around yelling about the atrocity of having the new U2 album rammed down our throats to notice a really important development:  the introduction of Apple Pay, a mobile payment app that comes with the iPhone 6.

            Perhaps we didn’t pay attention because it’s fairly mundane and obvious:  Apple has partnered with a bunch of credit card companies, and now you can pay for stuff at participating retailers by simply waiving your phone in front of a reader.  It’s something we all could see coming a mile away—in fact, it’s already been around a couple of years with a cellular carrier-backed mobile payment app for Android users that until recently had the unfortunate name of Isis, but which has been renamed Softcard.  And there’s also Google Wallet. 

            But because this is Apple, Apple Pay feels like a tipping point.  It’s safe to go in the water now.  The future is here, etc.  The seamless app is also fairly secure—the retailer doesn’t get your credit card number or even your identity, so you don’t need to worry about data breaches, at least at the store level.  And since the app is activated by fingerprint-sensor Touch ID, you don’t have to worry about someone absconding with your phone and running up your credit cards, unless they also abscond with your finger.

            It looked like Apple had gotten past the U2 debacle and Apple Pay was catching fire, when the CVS and Rite Aid drugstore chains bluntly announced that they would not be accepting Apple Pay.  The deal is that a bunch of retail chains, including not only CVS and Rite Aid but also Wal-Mart, Best Buy and Target, have been busy cooking up their own mobile-pay app, something called CurrentC.  CurrentC will bypass credit card companies and take money straight out of customer bank accounts.  This means gazillions of dollars to the retailers, who have long complained about credit card fees reaming their profits.  CurrentC will also track consumer habits across all participating retail stores, giving way to an uber-database of individual and mass shopping behavior.  Unlike the other payment systems, which use “near-field” contactless communications, CurrentC will rely on scanning QR Codes, those ugly little bar-codey things that were ubiquitous a few years ago, adopted by all kinds of business trying to be so with-it and modern, that hardly anyone ever actually used.  Oh, good luck with that.

            The initial reaction was damning, with commentators blaming the greedy drugstores for undermining consumer choice and what’s left of consumer privacy.  Then it was disclosed that these chains were contractually bound to use CurrentC exclusively, that when they all signed on several years ago to help develop the service, they all agreed not to allow competing technologies at their check-outs, and agreed to pay heavy fines if they did.  Which is a really stupid thing to agree to, given the rate of change of technology and the tendency for innovation to produce new, unforeseen solutions to old problems.

            So here we are right now, with a weird kind of stalemate, with all these big retailers unwilling to allow the super-hot Apple Pay app while waiting for their own CurrentC app to land, which isn’t supposed to happen until sometime next year.

            I have a hard time choosing sides here.  On one hand, rooting for Apple Pay necessarily involves rooting for the credit card companies, and who wants to do that?  They’re usurious and ugly corporations that hopefully will soon get bitcoined out of existence.  On the other hand, do we really want Big Retail to be able to track all of your shopping habits?  (I’m not sure about this one; I like getting tailored info about deals on things I actually buy)  More importantly maybe, do we really want Big Retail, which has had near-constant issues keeping confidential consumer information secret, to have a direct portal into our bank accounts?

            I suspect that the Big Retail players will get together and agree to let Apple Pay and whatever other mobile-pay technologies come in and compete with CurrentC.  To do otherwise will get people PO’d, and might even be illegal.  I’m no expert on anti-trust law, but something about allowing one payment system and barring all the rest doesn’t smell right.  Apparently all these systems are designed to flow through the same back-bone and use generally the same hardware, so this isn’t a tech problem so much as a business problem.

            Let the gloves come off so we can shop the way we want.  C’mon, this is America for crying out loud.

Paul C. Rapp, Esq. is an often casually-dressed woodsman lawyer specializing in IP law who typically doesn’t go out shopping for anything other than food, power tools and bourbon.

Wednesday, October 15, 2014


This article originally appeared in the 10.16.14 issue of Metroland.


            Six years or so ago the talented-but-phony street artist Shepard Fairey came up with the Obama Hope poster.  It was everywhere, there were even websites where you could “hope-i-fy” your own image, and most of us did. 

            Then there was a crazy rush to figure out what Obama photograph Fairey used as a template for the poster, because he wasn’t sayin’.  This became an online obsession, and particularly weird because Obama was perhaps the world’s most photographed human.  Numerous candidate photos were floated, then shot down.  Finally, after months of this nonsense, somebody found a several-year-old picture of Obama seated next to George Clooney that looked like a perfect match.

            But, uh-oh, the Associated Press claimed that it owned the copyright to the photo, and it was stomping its feet demanding that Fairey pay up.  So Fairey sued the AP, seeking a court declaration that he wasn’t infringing.  Us copyright lawyers were really excited about this, as it looked like an important case, and one that might add much-needed definition to the doctrine of fair use—when it’s OK for someone to use somebody else’s copyrighted stuff without permission.  This case would have far-reaching effects for all kinds of artists and most anyone who creates “content” from cutting and pasting and mashing-up.  Like all of us.  Both sides had ace lawyers and the case was venued in New York federal court, where a lot of really smart judges sit.

            But a couple months in, it was discovered that Fairey had lied to the court, lied to his lawyers, and destroyed evidence.  For no good reason.  His lawyers quit, the court sanctioned Fairey, he quietly settled with AP, game over.  No decision, no nothin’.

            What we got instead, several years later, was an appellate decision in the Richard Prince / Patrick Cariou case involving Prince’s use of Cariou’s photographs of Rastafarians.  The decision was muddled, saying that fair use occurred when there was a transformation of an original work by changes in expression, meaning, or message.  Without a whole lot of analysis, the court decided that most of Prince’s “treatments” were fair use, and a couple were maybes that the court punted back to the district court.  The case then quickly settled.  Not much in the way of guidance, other than that this idea of “transformation” was a pretty big deal.

            Then a couple of weeks ago, a federal appeals court in Chicago issued a major fair use decision with facts identical to those in the Fairey case.  A t-shirt company took a photo of the mayor of Madison, Wisconsin and put a hope-i-fied version on t-shirts.  The photographer sued.

            The court found for the t-shirt company, but said a whole bunch of things that again throws the fair use doctrine to the wind.  The court ruled that it was fair use.  But court also said that because the photograph had been altered so much that what was on the t-shirt wasn’t anything the photographer had the right to protect.  The background was gone, coloring was gone, detail was gone, all that was left, like with the Obama Hope poster, was an outline of a head.  The court said  “what [was] left, behind a hint of [the mayor's] smile, is the outline of his face, which can't be copyrighted.”

            OK, good enough, but if the shirt doesn’t use any of the photographer’s copyright, why keep talking?  It’s not infringement, period, so why then go into a tortured fair use analysis?

            But analyze they did.  They said the most important factor in a fair use analysis was the financial harm to the copyright holder, but since the photographer didn’t say the t-shirt cut into his licensing money they couldn’t address that factor.  They seemed to be troubled that the t-shirt company used a copyrighted image when there just had to be plenty of similar “snapshots” floating around that were in the public domain.  They talked judicial smack about “lazy appropriators”.  Finally, they tore into the Prince/Cariou court’s primary reliance on “transformation”, ignoring the fact that the Supreme Court endorsed this approach twenty years ago.  The court was concerned that over-reliance on transformative uses would wipe out a copyright holder’s right to control derivative works.  Then after all this, the court declared the t-shirts were protected by fair use.

            So here we are, with a whole bunch of troubling language that’s gonna be trotted out by copyright maximalists whenever they feel their precious content has been nicked.  I think the court was right that a too-broad interpretation of “transformative” would wipe out a copyright holder’s derivative works.  But that’s not a reason to discard transformation altogether. 

            The good news, I suppose, is that now we have a very sharp split between two of the most influential circuit courts in the country, which means that maybe a juicy fair use case will get to the Supreme Court where we’ll get, for better or for worse, the final word.

Paul C. Rapp is an intellectual property attorney who also knows his way around a kitchen, a log splitter, a cocktail shaker, and a set of drums.