Thursday, December 27, 2012


This article originally appeared in the 12.27.12 issue of Metroland.

Holy crap it’s prediction time again.  Looking over last year’s, a couple of  purely wistful-thinking predictions came through—that SOPA / PIPA would go down in flames and that Mittens would get nominated and then pounded in the general election.  I had no faith either of these things would happen and lookie lookie!  Madonna didn’t get booed at the Superbowl, but she did get ignored, which is probably better.  I for one am glad this year is almost behind us, as it’s been chock-full of tragedy, betrayal, crisis, data caps, and an inability to score any goddamned Pappy Van Winkle bourbon.  But we plough on, boats against the current, thinking a better life lies right around the corner.  And we’ll prove it in 2013.

            OK, here we go:

            Congress will initially be unable to pass meaningful gun control legislation, and then there will be another mass shooting at an elementary school. Congress will then finally pass gun control laws that will cause a number of uneducated white guys to go on rampages with their Bushmasters, the only remaining vestiges of what they understand to be their manhood.  Parts of Texas will declare independence from the United States and try to stage some kind of sad trailer-trash armed insurrection.  Obama will, once again, show what true leadership is all about.

            For the third year I predict that at least one daily newspaper in the region will fold.  Editorials in other local papers will decry this, blame the internet, and say that this is bad for democracy.  The rest of us, if we even notice, will shrug.

            A geriatric member of a legacy rock band will croak on stage.  It won’t be a Rolling Stone.  I’ve given up predicting any of those guys are gonna die.  I intend to live to a ripe old age, and they’ll still all be around when I go.  Bastards.

            One local media icon will score big with a new local gig that will allow said media icon to reinvent him-or-herself and to become a real champion of local art, local rocking, and the American Way.  Another local media icon will trash an otherwise distinguished career by saying something unspeakably stupid into a live mic at exactly the wrong time.

            A local teenage singer-songwriter will break internationally with a song we won’t be able to get sick of no matter how hard we try.

            Congress and the FCC will land on the telephone companies for holding bandwidth hostage and denying rural parts of the country (like my house) the ability to get high-speed internet at a reasonable price.  A bunch of pinhead Koch-funded fake tea-baggers will yell “socialism” but no one will be listening.

            Speaking of the tea-baggers, there will be a mass-shooting at some “conservative” event by some Christianista nut-job who finally realizes that he’s being used by the Republican establishment to make the world a better place for billionaires, oil companies, and insurance companies.

            A local cult masquerading as an “executive training organization” will disintegrate when the feds swoop in with subpoenas and indictments.  A bunch of people, including several prominent local attorneys, will end up in the hoose-gow.

            A local distiller will unveil a bourbon so bitchin’ I’ll forget I ever liked Pappy Van Winkle.

            True conservative intellectuals will continue to beat the drum for copyright reform.  Tea-bagger types won’t play along because they’re too stupid to understand the concept, and Democrats will resist it because they’re too bought-off by Big Media.  But the populace will start to take note.

            The hundreds of porn copyright-troll lawsuits will get blown out of federal court system by angry judges.  A gaggle of porn attorneys will get disbarred.

            Dub-step and other types of electronic dance music will continue to dominate the music scene in Albany, despite City Hall’s ham-fisted attempts to stop it.  Ditto for post-modern burlesque.  It’ll take an expensive civil rights lawsuit to get City Hall to behave and play fair.  A capital region promoter will do an EDM show in the Berkshires and make a fortune. 

            Justice Anton Scalia will reveal he’s gay in the unanimous decision he writes holding that gays’ rights to marriage and equality are inherent in the United States Constitution.

            Five Alpha Beatdown will get signed to a major label that thinks the band is really from Iceland.   You’re Boring As F*** will be a major, major hit, and will inspire the next Judd Apatow film of the same title.

            We’re gonna make 2013 one to remember.

Paul Rapp is a Berkshire IP attorney who sometimes forgives if he’s in the right mood, but never, ever forgets.




Thursday, December 13, 2012


This article originally appeared in the 12.13.12 issue of Metroland.

            Let’s talk about stealing versus taking.  Let’s start with stealing.  While walking around Miami’s huge Art Basel fair last week, artist Jason Levesque spotted three paintings that looked familiar.  In fact, they were fairly precise copies of three of Levesque’s high-concept photographs that featured posed women, dressed and made-up unusually.  The paintings differed only in that the backgrounds were changed and some of the women’s clothing were different colors than in the photos.  Otherwise, the very realistic paintings were nearly identical to Levesque’s work.

            Understandably Levesque went bonkers, and posted on the web that the painter, Josafat Miranda, was a thief, and explained very clearly the nature of the theft:

What Josafat Miranda has done here reveals a total disrespect for photography as an art form. He’s quickly and with very little creative altercation, harvesting the yield of someone else’s hard work.

            Miranda issued a sad non-apology, stating that he hadn’t stolen anything, and that his only mistake was not crediting the photographers (he had copied some other photographers as well).  He then described how he was broke, how he’d apologized to Levesque and destroyed the offending paintings.

            Even in this age of appropriation art, what Miranda did was stealing.  He took Levesque’s creative vision and presented it as his own.  His paintings don’t comment on the photographs, or anything else for that matter.  There is nothing of consequence added to the images in the photographs.  The purpose of the paintings is exactly the same as the photographs: as decorative works of art. 

            So, yes Josafat, you stole.  And had you credited Levesque, that wouldn’t fix things, you’d still be a thief.  And the fact that you’re broke, well, that’s too bad, but you’re still a thief.

            An article on the always-excellent PetaPixel website compared this to the Shepard Fairey Hope controversy from a few years back.  But really, it’s vastly different.  I’m going to do something unusual.  I’m going to defend Shepard Fairey.  Sort of.  So now we move from stealing to taking.

            As you might recall, Fairey’s Hope poster, created for the 2008 Obama campaign and mimicked everywhere, was sourced directly from an Associated Press photograph.  There was a lawsuit that Fairey needlessly screwed up by destroying evidence and lying to the court and his lawyers (he was held in contempt of court fined $25,000 and sentenced to two years probation).  Which is too bad, because the lawsuit would have been interesting: did the Hope infringe the AP photo, and if so, was it fair use?

            I submit that it wasn’t infringement at all, because while Fairey obviously took something from the AP photograph, what he ended up using wasn’t something protectable by copyright law.  Copyright covers creativity, and so with photographs it covers only the creative aspects the photograph, things done by the photographer above and beyond just pushing a button, things that contribute to the photograph’s image.  The AP photograph was taken by a press photographer named Manny Garcia, who was shooting an event in Washington DC in 2006 where Obama was seated next to George Clooney.  Presumably, Garcia was doing what press photographers on assignment do: he was shooting a ton of pictures, hoping that one or some of them would capture something special.  Unlike Levesque’s photos, which were staged in a studio, with a chosen subject posing at the photographer’s direction, elaborate lighting, make-up, and clothing (and likely retouching afterwards), Garcia’s input consisted of getting into position, choosing the settings on the camera, and shooting away.  In terms of copyright law, there’s not a whole lot in the AP photo that’s protectable.  Compared to Levesque’s photos, which get strong copyright protection because of the level of the photographer’s creative input, the AP photo’s level of copyright protection is relatively thin.

            And what did Fairey take for Hope?  Nothing more than the outline of Obama’s face.  Which the AP doesn’t own, although it apparently thinks it does.  Fairey didn’t take the photograph’s composition, framing, depth of field, lighting, coloring, shading, or anything else that might qualify for some protection.  The AP argued that the image of Obama’s face was the product of all of these “choices” made by the photographer, like the angle of the shot, the timing of the shot, etc. and so on.  Give me a break.  Ferry took, but he did not steal.  It wasn’t infringement, and we don’t even need to get into that gnarly fair use analysis business, because what he took isn’t covered by the AP’s copyright in the photo.

            Too bad Fairey was such an idiot and screwed up the case.

Paul Rapp is an art and entertainment attorney who, along with Ted Potrikus, will be playing the worst Christmas music ever recorded on Friday, December 14 and Friday, December 21 at 3 PM on Great Barrington’s community radio station WBCR-LP 97.7 FM and streaming at

Thursday, December 06, 2012


This article originally appeared in the 12.6.12 issue of Metroland.

The Egg
December 1, 2012

            John Waters and me, we got some history.  One night in the fall of 1973, when I was a straight-off-the-farm freshman at SUNYA,  I got a mysterious invite to a private film screening in the State Quad common room.  Apparently, the student-run State Quad Cinema group had rented Pink Flamingos and then decided it was too disgusting to show to the public. And this was a group that regularly presentled raunchy porn films, in the name of, you know, free speech and stuff.  But for this, only those people deemed weird and twisted would be invited to see it.   I was honored to be included. The movie blew my mind.

            Some 7 years later I found myself shaking John Water’s hand (and that of his 300 pound transvestite-muse, Divine) at the world premier of Polyester at the Waverly Theater in the East Village.  I still have my Odorama card around here somewhere.

            Then 20+ years after that, I was a parent chaperone for two busses full of giggly 8th graders going to see Hairspray on Broadway.  That's a long way from State Quad.

            John Waters mainstreamed bad taste by singlehandedly inventing the notion that the right combination of filth, puerility and a big heart could be brilliant, funny, and in a strange way, redemptive.  That's no small achievement.

            Unfortunately, he had none of these qualities last Sunday at his “Christmas” show at The Egg.  He just wasn’t very funny, and certainly not nearly as funny as he seemed to think he was.  I thought there might be some multimedia stuff, some tacky accouterments, some sheer take-your-breath away moments.  Nope, just Waters on a bare stage talking fast and not being funny.  The topics bounced around without reason, transitions were awkward, there was some stuff about Christmas, but too many unrelated things disingenuously dolled up to be about Christmas: “I’ve always wanted to open a (bar, amusement park, movie theater, etc.) and then on Christmas we’d...” and then he’d describe something disgusting that had nothing to do with Christmas.  What were obviously supposed to be laugh lines most often landed with a thud, or maybe a nervous laugh or two.  His delivery was dreadful, talking either to the floor or the first couple of rows.  He’d misspeak, then correct himself, at least once a minute.  This sort of thing would throw speed bumps up for the best material.  For this it just made the already too slow clock seem to stop altogether.

            There were tons of the expected obscure pop-culture references, bad movie references, modern artist and author references, raunchy gay sex references, piled atop one another rapid-fire without a whole lot of purpose or form or impact.  Perhaps, after dropping Pink Flamingos on us 40 years ago, its just that Waters has helped engineer a world that even he can’t shock anymore.