Thursday, May 31, 2012


This article originally appeared in the 5.31.12 of Metroland


A lot of what we talk about here is about how the internet has brought many traditional companies that trade in copyrights (like in the film, music, and publishing industries) to their knees.  This is largely because a number of functions these companies controlled and charged monopoly prices for (like duplication and distribution) are now uncontrollable and egalitarian.    The industries’ responses have been to sue the bejesus out of people, to lean on the government to cede control of the internet to them, to corrupt the copyright laws, and to pressure the rest of the world to join into their freedom-killing and innovation-stifling agenda designed only to protect business models that could not survive otherwise.

            An interesting side-battle in all this involves academic publishers.  For a significant category of scholar works, the traditional model has gone something like this:  Scholars at universities create works that are submitted to publishers, which engage in some sort of “peer-review” process to determine which works shall be awarded the “prize” of publication.   The scholars aren’t paid, but rather readily submit their works for free to these journals because publication has always been vital to getting academic tenure (“publish or perish”) and to other types of professional advancement.   The publishers then sell these journals, which typically have limited print runs and incredibly high prices, to libraries at academic institutions.  The publishers keep all the money.

            For all sorts of reasons, including not only the alternatives now provided by the internet, but also the eroding economics and public financial support of higher education, a disappearing middle class, etc etc etc, the wheels are falling off this rather strange model.

            Publishers are getting greedy, or shall we say greedier.  Prices for these journals are sky-rocketing, and the prices for e-versions of the books are kept artificially high to avoid “cannibalizing” the market for physical books.  Scholars are finally saying “enough” to simply handing over works that represent years of their lives, their expertise, and their blood, sweat and tears to the academic publishing units of massive multinational corporations.  And the questionable symbiotic link between the publishers and academic institutions is breaking down. And at the front lines of this fight are the most courageous, intrepid, industrious, forward-thinking, brilliant, and, yes, sexy individuals in all of academia: the librarians.

            The librarians are saying no to the absurdly inflated prices of these journals and the particularly heinous publisher practice of bundling multiple journals together so libraries are forced to buy three overpriced journals it doesn’t want or need in order to get the one or two that it does.  University libraries simply can’t afford these obscure titles any more.

            What is happening, and quickly, is that librarians and scholars are creating open-source web-based journals with their own peer review standards.  From the scholars’ perspective, if they are going to be giving their work away anyway, doesn’t it make more sense for the works to be ultimately given away to anyone who wants to read them, rather than sequestered in expensive journals on library shelves and behind insanely expensive digital paywalls?  Of course it does.

            The leadership of academic institutions are starting to take notice, too.  Why should a university pay scholars nice salaries to create content that the university then has to pay for again, in the form of an overpriced journal?  Isn’t paying for the research once more than enough?  And it’s dawning on the powers-that-be that the price of outsourcing criteria central to tenure decisions by supporting the bloated academic publishing industry just ain’t worth it anymore.
            And finally, the public is waking up.  There is a movement afloat to require all publically funded research to be made available to the public.  I mean, pretty basic, no?  This includes not just academic research but funded scientific work done by corporations; so much of our government-funded research currently ends up  inaccessible, fenced in by scientific / academic publishers or held in secrecy by private corporations.  This inaccessibility has traditionally been justified by claiming that researchers need some extra incentive to profit from research they’ve already been paid to do, or that publishers need an incentive to “disseminate” the work.  The second argument has been rendered absurd by the internet. And the first has been largely disproven by a pilot public access policy administered by the National Institutes of Health which found that sharing research findings with the public does not stifle research, it actually encourages more research.  Duh!

            You can help push this open access policy to all publically funded research by signing the petition at the White House’s “We The People” page at .  This site’s functionality is surprisingly sucky, but I found I could get in by using a Firefox browser.  Go vote for the future.


This review originally appeared in the 5.31.12 issue of Metroland.

Glen Campbell

The Egg

May 24, 2012

            If you’re of a certain age, Glen Campbell first hit your consciousness with a run of hits in the ‘60’s, polished ear candy written by aces like Jimmy Webb, John Hartford, and Allen Touissant.  Then he was a TV and talk show celebrity, as square and irrelevant as could be; he wound up leaning country, and became a fixture in that little corner of hell known as Branson, Mo.  

            What has always been underappreciated is his pre-fame years as a guitarist with the legendary Wrecking Crew session team and Phil Spector’s LA wall-of-sound orchestra.  The cat is a big part of the DNA of rock and roll, period.

            Thursday’s show was bittersweet, weird, and triumphant.  It was announced late last year that Campbell, who’s 76, was suffering from Alzheimer’s, and would embark on a farewell tour before packing it in.  He’s out there for two more months.

            He looked great for 76.  He sang great, and he unleashed some jaw-dropping guitar solos throughout the show.  He relied heavily on teleprompters, but so does everybody these days.  Between songs he did seem a little out of it, although he told a story or two and got some laughs from some wise cracks.   His band included 3 of his kids, who all played great, and one wonders what was going on in their heads, just how much of a tightrope this tour has been for them...

            The show was the old hits, and touched only slightly on his two recent and rather staggering “comeback” albums (in which he covers the likes of Green Day and Travis with help from Tom Petty’s band and Jellyfish).  Which was fitting, as this was a goodbye tour and I’m sure the vast majority of the decidedly geriatric crowd was unaware that he’d even released two comeback albums and could give a rat’s ass about Travis covers.   Things were fairly Bransony for much of the show, but by the time they got to Wichita Lineman, Campbell was simply singing his ass off, and when he and son Shannon laid into that twangy guitar solo it was pure beauty and bliss.

            Goodbye Mr. Campbell, and thank you.

Wednesday, May 16, 2012


This article originally appeared in the 5.17.12 issue of Metroland.

            Trademark law can be a lot of fun. Some of you ancient folk might remember the great QE2 debacle of the late ‘80’s when Dave and Char Shortsleeve got a nastygram from Cunard Lines, telling them that their little punk club on lower Central (now the Fuze Box) was offering many of the same goods and services as Cunard’s luxury liners, so they had to immediately cease and desist use of the name QE2 for the club.   Hey sailor! Ships ahoy!  This was so silly it made national news.  Fact is, the Q had lifted imagery from the Sex Pistols for their logo, but nobody seemed too concerned about that.

            Trademark owners have always been a little over-protective of their stuff, and often shoot first and ask questions later when they see somebody else using their mark.  Thing is, what a trademark owner actually owns is pretty narrow: the sole right to use the mark to identify the source of a good or service in commerce, and the right to stop others if mark is being used in a way that will confuse consumers.  Generally, if somebody else uses your mark in a way that doesn’t confuse consumers, that’s OK.  In other words, your trademark rights can’t be used to stop people from talking about you.

            Now, the nuts and bolts of trademark law are all kinds of messy, because there are grey areas and judgment-call issues all over the place, and so courts have set up various tests and standards to help judges make decisions.  And too often courts, rather than taking a step back and looking at the big picture, apply these tests mechanically and come up with ridiculous results.

            This happened last week at the Trademark Trial and Appeal Board, an administrative court-like branch of the Patent and Trademark Office in Washington DC.  The Ralph Lauren-Polo shirt company was seeking to cancel a mark that parodied the ubiquitous little polo dude on his horse.   Here’s the two competing marks:

            Remarkably, the TTAB found the parody mark to be infringing, that it would confuse consumers.

            Nonsense!  In its analysis the TTAB applied several of those legal tests, including one that said the more famous a mark is, the more protection it gets.  Since the Polo mark is uber-famous, well, it wins.  Huh?

            This turns parody on its head.   In the real world, the more famous something is, the more ripe that thing is for parody.  If something is unknown, a parody of it is akin to one hand clapping in the forest, isn’t it?  A smarter California court recognized this in a case a few years ago where Mattel was trying to ruin the life of a goofy artist who’d had the temerity to market pictures of Barbie after a few spins in a blender.  Barbie's an icon, so let the parodies fly.  The bigger you are, the funnier you fall, baby.

            And even more fundamentally, look at those two images.  If you ran into somebody wearing a shirt with the guy falling off the horse would you (1) laugh and ask him where he got it, or (2) think to your self “oh, my, Polo must be expanding their brand”?

            C’mon, this would not be seen as a parody only by (1) someone who thinks too much and who has absolutely no sense of humor, or (2) the hypothetical “moron in a hurry”. “Moron in a hurry” is a term coined by Techdirt’s Mike Masnick to describe the ever-lowering standard for that inscrutable legal strawman the “reasonable person.”    The “reasonable person” is a sort of everyman, and judges and juries often have to decide what the “reasonable person” would think about things in deciding which way a case goes.

            And that’s freakin’ scary.  What do you base this standard on?  A random survey taken at Wal-Mart on a Saturday night?  Likely voters for president in Alabama?  Fox News viewers?  If you do, you’re likely to get a supreme “moron in a hurry”, the perspective of an uneducated buffoon, or people who voted for W for president (twice) uncurious bigots, or people who believe that humans were created along with dinosaurs when “god” snapped his fingers 6000 years ago.

            Does “reasonable” mean “average” or does it mean something else?  Is it an ideal to strive for?  And if it is, who sets the standard?

            Maybe rather than jump into this metaphysical black hole, the TTAB punted and applied these safe tests, got it supremely wrong, and moved on.  And shame on them.  It was a stupid decision.  And maybe you’re thinking “so, what, it’s just a funny shirt, what’s the big deal?”  The big deal is this: by all but negating parody as an allowable use of another’s trademark, the TTAB is setting a precedent that will chill future parodies.  And the next one probably won’t be a funny shirt.  It could be anything.  It could be political. It could be anti-government.  You see where I’m going.

Paul Rapp is an intellectual property attorney residing in the Berkshires and who has attended one polo match in his life.  He would have been uncomfortable had he not been drinking extremely heavily.

Thursday, May 03, 2012


This article originally appeared in the 5.3.12 issue of Metroland.

            By now you all must be familiar with Kickstarter, the crowd-funding site.   It (and similar sites like Indiegogo, Sellaband, etc etc) allows for bands, filmmakers, inventors, almost anybody to raise money for a project from the public.  The drill is like this: you put your pitch on the website, usually with a short video or written description, you set a goal, maybe you establish giving tiers with different gifts or levels of involvement for donors, then you work the bejesus out of your social networking platforms to get people to give you money.

            Crowd-funding is another brilliant example of the internet removing the middle-man and allowing a direct artist-to-fan relationship that was barely possible before.   It also can act as a harsh dose of reality to those whose projects crash and burn.  In the online world where lots of people complain that a “lack of filters” results in good art getting buried under mountains of crap (an observation I don’t agree with), crowd-funding is the ultimate filter: if people don’t vote for you with their wallets, that’s a pretty good indication that you’re doing it wrong, or your art sucks, or both.

            Doing it wrong can be as simple as a bad pitch.   We talking about seilling here, and some folks are good at it and some aren’t.  Plenty of crowd-funded projects have been successful solely on the cuteness of the pitch.  And while cuteness isn’t gonna sustain your career (it doesn’t matter how cute your pitch is, if your art sucks at the end of the day, your second cute pitch is gonna bomb) it can sure move it along.

            Wanna see somebody who does it right?  Go to Kickstarter and look at Ananda Fucking Palmer’s current campaign to raise money for a new album.  A 30-day campaign to raise $100,000.  She raised $250,000 in the first day.  She’s now talking about raising a million!   No record company, no recoupables, nothing but money to make art.

           How does this happen?  Hard work, that’s how.  Palmer has been cultivating her fan base on-line for years.  She tweets, she emails, she Bandcamps, she Facebooks, and she does it constantly, consistently, and she does it herself.  She knows her fans, and she knows what they want.  Look at the array of options she has for donations, starting at one dollar, which will get you a download of the album when it's done, to $10,000, which will get you a visit from Palmer and her band, who, not unlike Grand Funk Railroad, will come to your town and party it down.  In the middle range are passes to exclusive parties that she’s throwing in New York, London, Berlin, etc., signed books, CDs, all kinds of stuff.

            Can you pull that off?  Probably not on that level, not yet.  But you need to do more than just announce you need money and post a picture of yourself.  You need fans that are alert, and you need to be clever.  People like clever.  A couple years ago Ten Year Vamp launched a campaign with a short video featuring Debbie as “Brenda, the world’s #1 TYV fan” that was fall down funny.  Goal met!  Railbird funded their trip to SXSW a few years ago on Kickstarter—I don’t remember their pitch, but I sent them some money and got a CD, a little drawing and a feather.  I still have that feather on my desk, and when Railbird announced last week they were raising money to promote their new music I looked at the feather and said, yeah man, I’m in.

            I’ve seen plenty of pitches go bad.  A friend put up a campaign for a $35,000 film project before she had a team, a film trailer, and a clear vision of where she was going.  Time ran out before she could raise even $3,000.  She’s spent the last year regrouping, doing the real prep work, meeting people, and building support, and I think the next campaign is gonna fly.  There’s buzz. 

            And that’s the trade-off.  In return for autonomy, you have to hustle, you have to sell, you have to do any number of things that aren’t exactly in the same category of skill-sets as making a movie, a record, going on tour.  I’ve heard complaints that artists are now required to spend more time schmoozing than making art.  Hey, that’s nothing new.  Ask Mozart.  What I see with crowd-funding is when an artist truly believes, and really has something to present that people want, and if the artist isn’t an idiot (you don’t post hourly reminders on Facebook about your goddamn Kickstarter campaign, OK?) the sales part of it comes easily and naturally.  And has benefits that extend way beyond the financial part of it.

            And if you get it all right and you still don’t get the money, then maybe the world is trying to tell you something.  Listen closely.

Paul Rapp is a local art & entertainment attorney who thinks the new Rosary Beard album is just swell.  He can be reached at his website