Wednesday, February 19, 2014


This article originally appeared in the 2.20.14 issue of Metroland.

You probably saw something about this fly by over the weekend.  You thought “huh?” and moved on to more productive things.  Yes, I’m talking about the “Dumb Starbucks” store that opened briefly in L.A..  A number of people sent me links to stories about it, asking “can they do this?” and I’m thinkin’ “well, whoever they are just did it, didn’t they?”  The more troubling question is why.

            For the blissfully unaware, last weekend a facsimile Starbucks store opened in a strip mall in Los Feliz, California.  It looked very much like a regular Starbucks, from the wall-menus to the cups to the aprons, except that everywhere the word “Starbucks” or other branding terms appeared, the word “Dumb” also appeared.  Very soon there were long lines outside the place, which was giving away coffee.

          What was it?  The stunt didn’t have any immediately obvious meaning.  There was a FAQ sheet posted in the store that said that “Dumb Starbucks” was legal because of “parody law.” It was just kind of, um... dumb.  And everybody was all like, “what’s the real Starbucks gonna do?”

            Turns out this was the “work” of this sad sack of shit named Nathan, an insufferable doe-eyed host of a Comedy Central show none of us have heard of called Nathan For You.   I’ve watched several clips of past shows, in which Nathan dourly sets up various absurdist situations involving business, brands, and the like.  None of it is particularly funny or even interesting.  Most of it doesn’t even seem real.

            Like this.  The upshot here is that Dumb Starbucks got shut down on Monday.  Not by Starbucks, which had issued a short statement that it was looking into the situation, but by the LA Health Department, for serving food without a permit.  Comedy Central soon posted a short clip of Nathan saying that Dumb Starbucks’ “name meets the minimum requirements to be considered a parody under the law.”

            Does it?  To answer this, it’s key to understand that we’re not talking about copyrights here, but trademarks, so different rules apply.  Copyright protects creative works, trademark law protects commercial names and symbols.  In order for there to be trademark infringement, there has to be shown a likelihood of confusion, that people will think that the alleged infringer is actually related somehow to the trademark owner.  And nobody, other than the proverbial “moron in a hurry” could possibly think that Dumb Starbucks is associated at all with the real Starbucks.  People might be confused about every single other aspect of Dumb Starbucks, but not that.  Why else would they say “what is Starbucks gonna do?”  Right?

            The other legal concept that might be applicable here is that of brand dilution or tarnishment.  This is a hideous, ugly, and thankfully little-used law that makes it illegal to use another’s mark in a way that lessens that mark’s “distinctiveness” or harms the mark’s “reputation.”  Dilution and tarnishment only apply to famous marks, and Starbucks is nothing if not famous.  But does the law apply?

            I don’t think so.  Dumb Starbucks doesn’t dilute the Starbucks famous mark; rather, it celebrates it.  Maybe “celebrates” isn’t the right word here, but you get the idea.  And tarnishment?  Nope.  It’s hard to see how this is even a comment on Starbucks.  As the guys over at Freakonomics brilliantly pointed out, Dumb Starbucks isn’t so much a parody of Starbucks as it is a parody of parody.  A parody of a freakin’ parody.  When I first read that every rubber band in my brain snapped at the same time.

            That’s almost enough to make me reconsider Nathan.  But not quite.  We love our conceptual art over here, when it’s done right.  All too often, though, conceptual art, performance art, is the smug offering of someone desperate to prove that they’re smarter than you, but they lack the mental acuity, depth, and technical skills to pull it off.  They’re not smarter than you.  They’re little more than attention whores.  And sad ones at that.  Dada’s been done and Dada is dead. 

            Which is how this strikes me.  Pointless.  Like the Karadashians of humor and art.  If you don’t pay attention to it it will just go away, shorn of what little power it might have had.  So let’s leave Dumb Starbucks right here, and never speak of it again.

 Paul Rapp is a local art & entertainment lawyer who wants to know how long this horrible cold is going to last.

Wednesday, February 05, 2014


This article originally appeared in the 2.6.14 issue of Metroland.

           Well, Prince continued his purple reign of terror against his fans last week when he hauled off and sued 20+ people, most of whom were identified only by their online handles, for posting links to places Prince bootlegs were available for download.  Never mind that courts have consistently found that merely linking to possibly infringing sites isn’t infringement, or that the $1 million-per-defendant claim was laughable, or that identifying most of the defendants would be impossible.  After a day or two of now-predictable online outrage and derision, the lawsuit was dropped, with Prince people saying something about how all the “stealing” had stopped so they were done.  Um, right.

            Folks were quick to point out that this was merely the latest in a long history of online dickishness by the diminutive Violet Valet, many citing the 1999 case of Prince v. Uptown.  Which calls for a little walk down memory lane. 

            In early 1999, I got a call from Doug at the League of Arts that a fax (we used faxes back then) had just come in from a guy in Boston looking for help with a lawsuit involving Prince.  Turns out it was a second-year lawyer named Alex Hahn, who was a big Prince fan (and who would go on to write the excellent bio Possessed- The Rise and Fall of Prince), who had been a member of the great Boston band The Volcano Suns, and who’d been contacted by a Swedish online Prince fanzine called Uptown.  Uptown had just been sued by Prince, or rather, by Prince Rogers Nelson, the Artist Formerly Known as Prince. 

            Alex sent me the complaint.  It was one of the most disgusting legal documents I’d ever seen.  Prince accused Uptown not only of posting some links to illegal downloads (like it mattered: this was 1999, pre-Napster, pre-iTunes, pre-iPod), but also of posting “unauthorized” photos of Prince, thereby somehow profiting from Prince’s likeness.  Even worse, Prince (who was referred to as “The Artist”) had registered copyrights and trademarks for that silly little can-opener-like icon he’d been using as his “name”, and he was suing Uptown for infringement for using it while referring to him in articles.  In other words, he was suing Uptown for talking about him.

            1999 was gold-rush time online.  People were more interested that got $100 million of second-round funding than they were about IP bullying. I’d been doing a lot of work with RtMark, a pre-Yesmen anti-bullying group, so I kind of knew the territory.  And I’d done just enough litigation in my 10 year career to make me an extreme danger to everyone else involved, whether client, foe, witness, or court.  I was fearless for no better reason than I was a well-meaning idiot with an attitude.  I had to help with this case.

            We researched the bejesus out it.  We learned that Prince’s people had given a floppy-disk (remember them?) containing “the unpronounceable symbol” to Uptown with a request that the symbol be used in referring to Prince.  We learned that the symbol bore an uncanny resemblance to an Egyptian hieroglyph meaning “soapstone.”  We learned that Prince’s people had recently asked Uptown to become part of some grand online world of which Prince would be the grand lavender overlord.  And we confirmed what we already knew, that Prince’s claims were, legally speaking, a steaming pile of shit.

            Alex, by far the better writer, wrote our answer to the complaint.  Now, pleadings are supposed to be short and concise statements of a litigant’s position.  Alex wrote a freakin’ book!  It was brilliant—we needed to get our story out big and fast, and at the time there wasn’t nearly the ability to “go viral” that there is now.  So Alex told the whole sordid tale in Uptown’s answer, and we circulated it where we could.  I knew a wire service entertainment reporter, David Bauder, who used to work at the Times Union, and we made sure he got one.  In the answer we asked for, among other things, the cancellation of Prince’s copyrights and trademarks in the unpronounceable symbol, and for damages for subjecting Uptown to a frivolous and vexatious lawsuit.

            The day after we filed the answer, Bauder posted an article about how Prince had called him up and announced he was rerecording all 16 of his Warners records and releasing them on his own label.   Bauder, who’s based much of his career on fawning celebrity puff-pieces, dutifully reported this nonsense, and mentioned that Uptown had filed its answer in the closing paragraph.  Which got chopped most places the story ran.

            Time for Plan B!  We immediately noticed Prince’s video deposition.  In the old federal courthouse in Brooklyn, where people could, pre-9/11, saunter in and out.  Prince’s lawyers vociferously opposed this, saying Uptown just wanted to “exploit” Prince’s image some more.  Now, there had just been a rather well-publicized video deposition of our President saying things like “it depends on what the meaning of the word is is” and “I did not have sex with that woman.” The court ruled the video deposition would go on. You know, what’s good for The Prez is good for The Artist.

            The lawsuit settled within days.  Uptown continued publishing “unauthorized” articles and pictures of Prince for another 10 years.

Paul Rapp is a crusty old entertainment attorney who’s been all ‘round this big wide world, ain’t nothin’ he ain’t seen.

Think I was too hard on Bauder?  Well, then, make up your own mind:

The Artist is digging deep into Prince's past
By David Bauder, The Associated Press April 18, 1999 12:00 AM
Even for a notorious control freak, the Artist Formerly Known as Prince is planning a pretty audacious challenge to his old record company.
Unhappy at his failure to gain possession of the music he recorded for Warner Bros., the Artist said he will re-record the music and sell it on his own.
That's everything. "Purple Rain," "Little Red Corvette," "Raspberry Beret," "Kiss," the whole catalog. He recorded 17 albums for Warners beginning in 1978 when he was seen as a teen-age prodigy until their nasty divorce five years ago, not including a greatest hits package.
Re-creating the music shouldn't be much of a problem. That's because on most of the records he played all the instruments himself and provided all the vocals, the Artist said.
"Fleetwood Mac would be hard-pressed to do something like this," he said. "The only people I would have to argue with are the people in my head."
He's not discouraging anyone from buying his old records; he still gets paid when that happens. But he gets paid a lot more if he sells them himself, and he wants to own recordings of the music which made his name -- before he changed it, of course.
He has repeatedly made known his interest in obtaining the rights to his own master recordings, said Bob Merlis, a spokesman for Warner Bros. Records. That doesn't mean there have been any negotiations toward that end.
"We'll always talk to somebody," Merlis said. "It's extremely unlikely that we will ever give an artist, with no compensation, original works that were sold to us under a valid contract."
Re-recording material isn't unprecedented; Chuck Berry and Jerry Lee Lewis did it when they switched record companies in the early days of rock 'n' roll, Merlis said. But it's unusual today, and most contracts with artists prohibit such re-recording for a set period of time. He wouldn't comment on The Artist's contract.
"I would be interested to hear what it sounded like," Merlis said.
Just before last New Year's Eve, Warner Bros. distributed to radio stations a single version of Prince's song, "1999," that was originally released in 1982, sparking some renewed sales. The Artist responded by re-recording the song in several different versions and selling the CD via his Web site.
But that was just one song -- not hundreds.
The Artist insists that much of his early material will sound better when redone since recording technology has improved. He won't say whether he will be faithful to the old versions or if he will tweak them. He gave no timetable for their release.
"Most artists lose their voice, their hair and their bands," the 40-year-old singer said. "That's not going to happen to me."
The workaholic songwriter said he's composing an opera, presumably in his spare time. He's also making another studio album, and in another departure from his work habits, he is allowing other producers to work on his music, and is writing songs with others.
He won't identify the collaborators, other than to say, "I'm working with some people you wouldn't expect me to be working with." They might even remain unidentified on the final release due to contractual issues.
And how will the strong-willed Artist deal with it when a collaborator disagrees with him on how something sounds?
"They know it's my album," he said. "They're going to give me the last word."
Since leaving Warner Bros., the Artist briefly had a distribution deal with EMI. Most recently, he's been selling his music primarily through orders placed to his Web site, including last year's box set, "Crystal Ball."
But he said he's likely to work out a deal with a major label to release his next album. He said he has no problem working with a big label. "What I had a problem with is ownership of the work when I was finished."
Re-recording would be the latest salvo in his decade-long feud with Warners. It was that feud that led to him scrawling "slave" on his face during some performances, and to legally changing his name to the Artist Formerly Known as Prince. While he has his own typically eccentric spin, he's also a model for the growing trend of musicians taking control of their business affairs.
His "freedom" mantra is actually consistent with the unusual announcement that he had renewed his vows with his wife, Mayte, in February. He said they wanted to "transcend" their marriage without the encumbrance of a legal contract. But he stressed that he and his wife, a former dancer whom he married in 1996, did not get a divorce.
His album sales have steadily tumbled since "Purple Rain" sold 12 million. That's not unexpected, since few musicians stay on top for so long. But his decision to stand apart from the traditional record business machinery also probably ensures that his hit-making days are over.
He said he's much happier now.
"It's more fun for me because you can actually see the difference in the music," he said. "You can feel the freedom in the air when you're like that and you're not thinking about anything like what is the next single or how can I make my image look good for the video.
"All that stuff is in your head whether you're thinking about it or not."It's the Artist vs. the World Wide Web

The Artist has gone on a legal offensive against Web sites devoted to him. At least one site has responded by going after his symbol.
The copyright and trademark infringement lawsuits, filed in February against nine Web sites, accuse them of selling bootlegged recordings by the former Prince and offering access to downloads of his songs.
Through the format known as MP3, the selling and trading of music downloaded through computers has become wildly popular. It has made the music industry, and some artists, nervous because of a perceived threat to the CD and tape market.
"The Artist clearly wants to stop unauthorized distribution of his music," said Michael Elkin, his attorney. "The material that he puts out is the material that he selects. People should not be permitted to release product without his consent."
In trying to stop the Web sites' activities, the Artist has also alleged unauthorized use of photographs, sales of books and a CD-ROM. He also said people have been infringing upon his trademark of the odd symbol that he has used as his name since 1993.
One defendant, Uptown Productions, filed a countersuit last week that claimed the Artist had no right to trademark his symbol. The former Prince can't claim unauthorized use because he frequently encouraged people to use it as a substitute for his name, said the company, which operates a Web site and distributes a fan magazine.
Uptown also claims the symbol is in the public domain since it's a copy of an ancient symbol for soapstone.
Paul Rapp, the lawyer who represents Uptown, said he believed the Artist was going on the attack to chill competition because he wanted to put out a fan magazine of his own.
"We really just want to be left alone," he said. Photo by
The Artist Formerly Known as Prince, shown in an undated portrait, is planning to re-record all 17 albums he did on the Warner Brothers label.