Thursday, April 16, 2015


This article originally appeared in the 4.16.15 issue of Metroland.


The Lustre Kings

Wild Boar Records

            This is the Lustre Kings’ fifth album and it’s a whopper.  The first thing that will hit you is the sound; big, luscious and right.  Liam Hogg’s drums punch, Chops’ bass is bottomless.  Wow.  Hats off to producers Cliff Lyons and Sten Isachson for crafting a big-league record.

            Like their soulmates, the late, lamented Morells, the Kings dig deep to find swinging obscurities that are a couple steps to the left of normal, and then serve them up with a wink and a spit-shine.  The trio of “It Ain’t Right” (Gordon Terry), “Wrong Wrong Wrong” (John Lilly) and “Can’t Find The Door Knob” (Jimmy and Johnny) left me dizzy from giggling.  Go Green is a great rockabilly record doubling as a master’s thesis on Americana weirdness.  That you can dance to.

            You can hear the smile in Mark Gamsjager’s voice, kind of a Dave Edmunds-y high and lonesome wail.  Kevin Maul’s expert steel guitar touches add a bit of Texas, and takes everything higher and lonesomer.  And then there’s Mother Judge, who I could listen to all the day and all of the night.  Her guest vocals on the Brill Building nugget “Fallin’” might be the best thing you’ll hear all year.  She’s the highest and lonesomest of them all.

            Maul’s featured on the Santo and Johnny classic “Sleepwalk”, which is drop dead gorgeous, and guest guitarist Bobby Henrie blows up the room with some killer shredding.  Go Green is an adventure, and a fun one, from start to finish.

Wednesday, April 01, 2015

4.2.15 Jesus, Etc.

This article originally appeared in the 4.2.15 issue of Metroland.


            So, the demented clown car that is the Republican, Christianista, fascist, hate-mongering right wing has had its karma chickens come home to roost.

            This is what happens when dark money fills up state legislatures with fake-conservative stooges, who redistrict the state to insure an anti-democratic stoogist hegemony for years to come, supported by a distinct minority of uneducated morons who are whipped into a lather by fake, big-lie “news” outlets controlled by the same sources of the dark money that put the stooges in office.  The issues that the fake news outlets peddle are all fear-based and phony, and the morons believe them and cling to their Bibles and guns and support the stooges who dutifully enslave the morons by quietly stripping them of their financial well-being in the name of “freedom.”  Welcome to Indiana.

            It’s beyond sickening.  A law called “The Religious Freedom Restoration Act” which is nothing more than a license to engage in wholesale discrimination.  Signed in a closed ceremony where Governor Mike Spence, Stooge-In-Chief, refused to identify the handful of lobbyist-attendees, some of whom were notorious anti-gay zealots.  Then we see Pence feigning outrage that anyone would consider the law as a portal to discrimination, cowardly playing the victim of “outside hostility”, and lying repeatedly about the law and its effects.  He even invoked a visit he made to Selma to try to prove that 1 plus 1 equals 3.  Some have suggested that Pence is just stupid.  I won’t give him that benefit of the doubt.  He is evil.  He is a stooge.

            To make this even more insidious, all of the major Republican presidential candidates have rushed to his defense, as have all of the right-wing fake news outlets.  And much of the mainstream press has presented the debacle in the sickening light of “false equivalence” that maybe there are two sides to this story.  There’s not.  There is nothing but hate, fear and greed cloaked in un-American, un-Christian dogma. 

            And in that delightful Southern tradition of shooting yourself in your big ol’ white-trash foot, the Arkansas legislature rushed through an identical bill, as if to say (insert pathetic southern accent here) “ain’t no gott-damn libruls gonna tell us what to do down hee-yah.”  Let’s break out the Bud Light, Skoal and Crisco and have a party!

            But, amazingly, there’s been push-back.  Big conferences scheduled for Indiana have been cancelled, huge corporations like Apple and Wal-Mart have gone public with criticism. Yes, I said Wal-Mart.  State and city governments have banned travel to Indiana, including New York and Connecticut.  Massachusetts is apparently just watching, with its newly-elected Republican governor not raising a finger against his Super-bowl betting buddy Gov. Pence.  Come on, man.  Grow a pair.  You won the bet.  Make it hurt.

            And then there’s Wilco, who canceled a May concert in Indianapolis in protest.  One wonders why more acts haven’t done the same thing.  A quick look at Pollstar shows plenty of shows coming to the hate-state, among them: Weezer, Imagine Dragons, Rihanna, Passion Pit, Neal Diamond, Chick Corea, Surfjan Stevens, Big Sean, Arlo Gutrie, Kenny G…  Maybe they’ll say something on stage.  Maybe.  The delightful Audra McDonald, who’s got a couple Indiana shows coming up, slammed Gov. Pence on twitter (“Some in my band are gay & we have 2 gigs in your state next month. Should we call ahead to make sure the hotel accepts us all?”) and then announced she’d donate the money she made in Indiana to the Human Rights Campaign.

            One wonders what kind of a haircut Wilco is taking by cancelling the gig.  They were going to play the 2500 seat Murat Theater in Indianapolis with tickets priced from $30-$50.  So let’s assume a gate of around $100,000, most of which would go to Wilco.  And then there’s lost merch sales.  There was probably a substantial deposit (often 50% of the guarantee) that will have to be returned.  And the promoter is out-of-pocket for hall rental, promotional expenses, and the like for which Wilco will be responsible.  Or will they?

            There is a standard performance contract clause, with the fancy name of the force majeur clause, that excuses each party from any obligations to the other under certain circumstances that would render the show “impossible, infeasible or unsafe.”  My favorite circumstance is the performer’s “inability to perform.”  Imagine.  The other circumstances include things like acts of God, civil insurrection (cool!), explosions, fires, bad weather, labor strikes, and “act(s) or regulation(s) of any public authority or bureau.”

            Could Wilco prevail claim that the passage of Indiana Religious Freedom Restoration Act made its performance in Indianapolis “infeasible” (which means not possible to do easily or conveniently) so it can invoke the force majeur clause?  When all these other acts are willfully doing their shows?  Maybe Wilco should invoke the Indiana Religious Freedom Restoration Act and say that its religious beliefs make performing in a state with such a law infeasible.  That’ll show ‘em.

Paul Rapp is a local entertainment attorney who has no religious beliefs to speak of.

Wednesday, March 18, 2015


This article originally appeared in the 3.19.15 issue of Metroland.

            OK, so the Blurred Lines verdict came down and Robin Thicke, Pharrell, and TI were found guilty of infringing a Marvin Gaye song to the tune of $7.3 million.  Of course everybody had an opinion on this, with plenty of people, some of whom who are friends, otherwise intelligent beings whose opinions I generally respect, applauding the verdict.  I heard a panel of exceedingly smart people on the radio seemingly accept the verdict as correct, with one smart person saying “all they had to do was credit Marvin Gaye and give him a percentage and this would have been avoided.”

            Uh, no, that’s not how it works.  And there’s no reason Gaye should have gotten any credit or should get any money. The bottom line is that the verdict borders on insanity.  Ask any copyright expert who isn’t beholden to some corrupt special interest (and even some who are) and they’ll tell you.  Heck, I’ve been telling you for a couple years that this wasn’t a case.  Even Dean Kay, who’s been ringing the copyright maximalist bell for years with his e-mail news service Dean’s List (and with whom I agree on very little but like very much) is linking to articles declaring that the verdict was ridiculous.

            The matter will no doubt be appealed, and hopefully the case will be tossed.  Jury verdicts are notoriously difficult to overturn; appeals courts tend to bend over backwards to cede to the “wisdom of the jury” and all that.  But the better argument might be that, as I’ve pointed out here, and as Tim Wu argues emphatically in his New Yorker article “Why The Blurred Lines Copyright Verdict Should Be Thrown Out”, the trial judge erred in even letting this case get to a jury.  Many, if not most cases that don’t settle end at the summary judgment phase, where a judge can determine that no reasonable jury could possibly find for one or the other party.  And given what I’ve read, the “Blurred Lines” judge should have done just that.  No reasonable jury, applying the correct standards, could have possibly found that the Thicke & Co. infringed on Marvin Gaye’s song.

            Why not?  Well, as my pal the prominent musicologist Michael Harrington told a Nashville TV station "There were no lyrics, none. There was no melody, no chords. Not only is there no original expression taken, there is no expression taken."   Somehow, the jury, after being told that Pharrell and Thicke readily admitted to being influenced by the Marvin Gaye song, decided that since the songs had a similar groove and vibe that there must be infringement.  I wonder what the judge’s jury instruction (where he tells the jury what the legal standards are that must be applied to the facts) was.  Because either it was a horrible instruction or the jury ignored it.

            As Andy Herman wrote in his LA Weekly article “Great, Now Blurred Lines Has Ruined The Entire Music Industry”:
Musicians admit their influences all the time. And they should. There are only so many notes on the scale, only so many tempos and drum patterns, only so many harmonics pleasing to the human ear. Every song, no matter how great or how terrible, builds on the work of past artists.
The "Blurred Lines" verdict ignores this, placing for the first time what boils down to "feel" under the heading of copyright infringement. By this logic, the Bob Marley estate can sue pretty much every reggae artist of the past 30 years. The Bo Diddley estate can sue George Michael for "Faith" and Bow Wow Wow for "I Want Candy." Phil Spector can sue The Raveonettes for their entire catalog.

            Most commentators think that the jury was reacting to the douchey-ness of Robin Thicke, who by all accounts was swarmy and, well, douchey.  He claimed he didn’t write actually the song because he was drunk and high on Vicodin, basically trying to throw his onetime friends Pharrell and TI off the cliff.  What a nice man!

            But this wasn’t a popularity contest between Robin Thicke and Marvin Gaye, or for that matter Marvin Gaye’s kids, who by most reports conducted themselves in a fashion that could charitably be called low-rent.  This was an infringement lawsuit.

            What disturbs me is to see songwriter friends hailing the verdict.  What, they don’t have influences?  They don’t think that this verdict will open the floodgates and make every hit song a target, including theirs should they be so fortunate?

            My band used to do a ska version of Sam Cookes’ “Just Another Saturday Night.”  Then one day we stuck in some new lyrics and bounced the melody and harmonies around and voila, there’s a new song “Gimme The Girl.”  We recorded it and the day the record came out Dr. John Cooper on QBK played “Gimme The Girl” and followed it with “Just Another Saturday Night.”  Busted?  Yup!  Infringement?  Nope!

Paul Rapp is a lecherous ex-clergyman... no wait, that was Richard Burton in “Night Of The Iguana”... Paul Rapp is a dapper Berkshire attorney, semi-retired musician and fitness buff who doesn’t only sing but he dances.  Just as good as he walks.

Wednesday, March 04, 2015

3.5.15 NOT HAPPY

This article originally appeared in the 3.5.15 issue of Metroland

The “Blurred Lines” case, in which Marvin Gaye’s kids are trying to shake down Robin Thicke, Pharrell and TI, is in the midst of trial right now in LA.  It’s not going very well for Team Gaye.  The judge knocked the stuffing out of the Gayes’ case last month by ruling that the jury would not be allowed to hear the Marvin Gaye recording of “Got To Give It Up,” the song allegedly infringed by Thicke & Co. in writing “Blurred Lines.”

            Why, you ask?  Well it’s like this.  With any recording, there are two copyrights: one for the song, the composition, and another for the performance of that song, the recording.  What constitutes the song is typically limited to the melody and lyrics, and sometimes a unique chord or song structure.  Everything else is embodied in the performance.

            Here, the Gaye children are claiming that “Blurred Lines” infringes the song “Got To Give It Up,” which they own.  However, they do not own the recording of “Got To Give It Up.”   That is owned by Motown Records, which has the same parent company (Universal) as Interscope, which released “Blurred Lines”.  And Motown isn’t about to sue its cousin.

            What the Gayes are left with is what was submitted when the song “Got To Give It Up” was registered at the Copyright Office: sheet music.  That’s what they own, and that’s what they have to show was infringed by Thicke, Pharrell and TI.  Not Marvin Gaye’s voice, not the groove, not the background vocals, not the bass line, not the drum sound or the instrumentation.  The melody and lyrics.  Not a whole lot to go with.

            So it’s been a hard slog at trial, with the jury being presented with piano-and-voice versions of the competing songs, and with Thicke giving a mini-concert of the various songs he says influenced the songwriting process (a medley including "With Or Without You," "Let It Be," "No Woman No Cry" and "Man In the Mirror").  Then the jury had to suffer through the Gayes’ musicologist experts trying to tie the competing songs together, including comparing the “hook lines” “keep on dancin’” and “took a good girl” which both come “immediately after the bar line” and “share three out of four notes.”  What? 

            That’s the best the Gaye camp has got, apparently.   They also made a big deal out of the fact that Thicke, Farrell and TI listened to “Got To Give It Up” during the songwriting and recording process, which proves exactly nothing.   As Bert Sommer used to say “That’s show-biz babe!”  This lawsuit should never have been brought, and it never should have been allowed to go to trial.  We’re talking here about influence, not stealing, and if Marvin Gaye’s kids got a piece of every tune Marvin Gaye influenced, they’d all be richer than Warren Buffett.

            The trial should wind up this week and we’ll probably get a verdict sometime next week.

            You may have heard that a library in Trumbull, Connecticut (near Bridgeport) recently removed a recently-donated painting of Mother Theresa out of concerns of copyright infringement.  I guarantee you that this wasn’t a librarian’s decision, because librarians, every single one of them in the world ever, are so much smarter than this.  The trustees of the library, and any attorney they consulted, should be publically shamed, tar-and-feathered, or perhaps taken out back and whooped good.  And the same goes for the knucklehead reporters who were on this story.

            The painting showed Mother Teresa surrounded by numerous activist women, including Margaret Sanger, the founder of Planned Parenthood.  The painting had been in the library for months when complaints started coming in from local Catholic leaders.  The library appeared to be holding tough until someone mentioned there might be a copyright issue with Mother Teresa’s image, and down came the painting.

            The problem is that no one can own a copyright in a person’s image. And there’s no “right of publicity” claim here either, as Mother Teresa was a rather famous person and her image isn’t being used to sell things.   And then there’s the small issue that she’s a dead woman from India whose image has popped up in Connecticut.

            So the Catholics came up with a scare tactic that smoked the ignorant and cowardly trustees of a little library and a piece of art got banished as a result.  I could see nonsense like this happening in Alabama or East Texas.  Or Iran. But Connecticut?  In 2015? Really?

Paul Rapp is an attorney ensconced in his mountain lair deep in the Berkshires, where he makes nougat, watches old movies, and drinks prodigious amounts of bourbon.