Friday, February 27, 2009


I’m taking a powder for this month’s CRUMBS Night Out but I wish I could be there. My regular co-host attorney Paul Czech is just back for the Midem music conference in Cannes and will be leading a bodacious panel talking about the State of the Music Industry. Joining Paul will be our pal, Philadephia mega-music attorney Bernie Resnick, local music legend (producer, composer, player, chef, bon vivant) Gary Tash and recording studio owner (Schenectady’s The Recording Company) Tim Lynch. What a freakin’ panel! And on top of that there will be a set of music by the flirting-with-the -big-time teenagers Stuck on Stupid. This is at the Linda on Central Thursday the 26th.

And now for something completely different: last summer I met violinist / electronic musician Todd Reynolds (Bang on a Can, Meredith Monk, Yo Yo Ma’s Silk Road) at a party in Pittsfield. He seemed like a cool dude so I invited him to be a guest on my radio program, The Splatto Festival, on WBCR-LP in Great Barrington. He said sure, after the summer. A month or so later I introduced Todd to ace percussionist / sound designer Ed Mann (Zappa, a bunch of solo albums, a lifetime of major session work, etc.); Ed and Todd decided should play together sometime and I suggested doing it on my radio show. They said sure. I figured that adding my pal free-jazz saxophonist Dave Barrett (Splatter Trio, No Sisters) would make for a nice trio so I asked Dave to join the fun. Then master bassist Michael Bisio happened by and I invited him, too. So, last September 19th, these four prodigiously talented and crazy musicians all met for the first time at WBCR-LP studios in Great Barrington, and, after introductions and small talk, improved live on the air for 90 magical minutes. It went so incredibly well and was so much fun that they decided on the spot to form a band, The Splatto Festival Chorus, named after my radio show. The SFC will be at the Sanctuary for Independent Media in Troy this Saturday for a concert and CD/DVD recording session. 8 PM. Bring your good ears and be prepared to be knocked out. You can download the September broadcast at my radio blog Scroll down.

I’ve received a barrage of inquiries about this whole Facebook terms of use debacle that just happened. I’m usually all over this stuff, and I’m an avid Facebook user, but the fact is I’ve been on vacation with my brain turned off in the middle of Mexico for the past week. From the hysterics I’ve heard it seems like a combination of out-of-it weenie lawyers, corporate stupidity, consumer paranoia, and a social networking paradigm everyone is struggling to get their minds around. And that’s just about right.

From what I’ve read (and remember, I’m on vacation, so I’m reading quick), Facebook was trying to get it’s terms of use to comport with reality, i.e., when someone leaves Facebook and takes down their page, that someone’s footprints will be all over Facebook: there will be posts to friends’ sites, photo’s tagged on friends sites, stuff all over the place. That’s the nature of social networking. Facebook tried to change the terms of service to say that when you leave Facebook, these footprints will remain, and you acknowledge that. Facebook will still have some of your stuff.

Of course, the new terms of use were stated in dense legalese, with over-broad terms that could be interpreted to mean that Facebook was suddenly claiming that it was glomming all your stuff for any purpose forever. I mean, the new terms were ridiculous.

Oops! The outcry was loud, not terribly well-informed, but effective nonetheless. After some statements that sounded like “well maybe that’s what we said but it’s not what we meant” corporate double-speak, the threats of lawsuits, and the formation of a bunch of Facebook groups proclaiming a revolt against all things Facebook, the new terms of use were rescinded and the old ones put back in place. The Facebook powers-that-be are now saying that new terms will be developed in collaboration with the Facebook “community,” last pegged at something like 175 million users. Good luck with that.

Whether this was much doo-doo about nothing or not, it actually proves, once again, the brilliance and vibrancy of social networking structures. Word gets out, gets discussed, and things happen on these sites will incredible speed and power. Sometimes information is exaggerated and imprecise, just like in the real world, but the truth eventually comes out, just like in the real world. Except so much faster, so much bigger, and so much more effectively.

There was in reality little real harm that some corporate entity was going to steal your stuff. If that started happening there would be such an exodus from Facebook that the company would collapse overnight. But some loose language was fixed, some uncertainties clarified, and a company was corrected. Virtually overnight.

Friday, February 13, 2009

2.12.09 On Shepard Fairey

Shepard Fairey’s been in the news a lot lately, which should suit Shepard Fairey just fine. Fairey is the self-styled “street artist” responsible for the ubiquitous “Obama Hope” poster, which has become, in a few short months, one of the great iconic images of our time. A few weeks ago, the Smithsonian acquired the original poster for its National Portrait Gallery.

Fairey’s got a checkered reputation, to be sure, accused of being a shameless self-promoter and serial plagiarist of potent political images for re-use in his often dada-esque (or perhaps empty is a more fitting word) works which promote little more than, well, Shepard Fairey. Check out California artist Mark Vallen’s furious blog post about Fairey at for a taste of some anti-Fairey thought.

But love him or hate him, the Obama image is remarkably powerful and absolutely deserving of its iconic stature; the reductive red, white and blue style has spawned “Obamafy” image generators on the internet. If you’re on Facebook, a good number of your friends probably have Obamafied themselves. You probably Obamafied yourself. C’mon. Admit it.

A question spinning around the internet for months was the source of the Obama image. Fairey, who’s an appropriator and/or plagiarist depending on who you ask (and these aren’t the same things) obviously copped the image from somewhere, but nobody could figure out from where, and Fairey either was playing coy or didn’t know where his source photo of photos came from.

After several false alarms (a couple of weeks ago it was claimed that it was a 2007 Reuters photograph), the consensus seems to be that Fairey used a photo taken for the Associated Press by a photographer named Mannie Garcia. The photo was taken at the National Press Club in 2006 where Obama was holding forth with George Clooney.

So, of course, the Associated Press is going to Fairey with its hand out, notwithstanding the fact that neither it nor its photographer realized that the Hope poster was based on their photograph until it was pointed out to them last week.

The Associated Press, on top of being increasingly a right-wing toady, has a history of being stupid and piggish about its intellectual property rights. In 2000 a couple of guys hysterically mashed up the AP’s famous Elian Gonzales photo (the one with the ATF guy pointing a gun at Elian and the handsome, enigmatic fisherman who were hiding in a closet) with the audio from one of those Budweiser “wassup” ads. After the primitive little movie had been downloaded and forwarded hundreds of thousands of times in a few short hours, the AP slapped the jokesters with a cease and desist order. The guys posted the letter on their website, and enraged citizens buried the AP with angry emails, shutting down the AP’s mail server. The AP backed off.

Last June the AP tried shaking down bloggers and news sites for quoting AP news stories, claiming that it would charge these other outlets for excessive quoting. This went nowhere fast, and the AP wound up look foolish, sad and clueless.

And now this, going after the most recognized visual artists in the world for one of the most timeless images ever, one for which Fairey may have gotten ridiculously famous, but didn’t make any direct money. Has the AP no shame?

Some of you might be yelling “fair use! fair use!” and that’s what a lot of people are saying, too Increasingly, courts have been granting fair use passes to appropriation artists when the second use is “transformative” in presentation and meaning. As one commentator observed “The copyright owner didn’t even recognize his own work in Fairey’s poster! How much more transformative can you get?”

But some other copyright experts aren’t so sure. They point out there’s virtually no transformation in intent or meaning. Licensing photographs for campaign posters is a standard transaction. The photographer presumably took the photo for commercial purposes, and that’s precisely what Fairey used it for, notwithstanding the fact he made no money with it by choice. Maybe this is over the line of fair use.

But there’s another route here. To claim fair use, first you need an infringement and maybe Fairey’s use doesn’t rise to the level of infringement. To infringe, the second use has to copy the “copyrightable elements” of the first. Photographs generally receive fairly thin copyright protection—some protection in the composition, color, shading, whatever can fairly be attributed to the photographer’s original contribution to the photograph. It certainly can be argued that Fairey stripped to photo of most of the protectible elements, so that he took only the unadorned image of Obama’s face—something to which the AP cannot claim copyright ownership.

We’ll see where it goes, but Fairey does have a history of paying off people when caught with his hand in the arty-jar. And he can readily afford it—despite his cultivated “street art” image, he’s done ad campaigns for the likes of Pepsi and Hasbro, and has a clothing line that I can only imagine is exploding.

Over the weekend, while en route to a career retrospective opening at Boston’s Institute for Contemporary Art, Fairey was arrested by Boston police on a couple of pending graffitti charges. Fairey likes telling people he’s been in jail 14 or 15 times. Headlines and more headlines. Life is good. Obey Fame.