Wednesday, June 24, 2015


This article originally appeared in the 6.25.15 issue of Metroland.

Apple finally announced that it was going to launch a music streaming service, years too late.  Here’s the company that single-handedly revolutionized the music business 10 years ago with the 1-2 punch of the iPod and the iTunes store announcing, lamely, that it was going to do exactly what Spotify, Rdio, Rhapsody, etc. have been doing for years.  And are they going to do it better?  How, exactly?  Is there a way to revolutionize pushing a button and hearing a song?

            And since there has been no comprehensive discussion of terms, how is this gonna be better for artists?  Maybe it will be worse.  Say you’re one of these artists or labels that’s decided that streaming isn’t such a great thing.  Like all of those artists and labels who’ve refused to play ball with Spotify, etc.  If you tell Apple you don’t want to stream, will Apple drop you from the iTunes store?  Oops?  Maybe they’d make an exception for the Beatles, who they finally got to sell downloads for in 2010, and who presumably aren’t going to cotton to streaming.  Ya think?

            The little we know about the Apple service is that it will be pay-subscription-only, probably at $10 a month, which seems to be the going rate.  No ad-supported free tier like Spotify, etc.  And how does Apple expect to compete with free?  Well, initially it was going to introduce its service to everybody for free for three months, hoping that everybody would become so addicted to all of its Apple-crack grooviness that Spotify’s free tier would fade from memory and people would line up to pony out $10 a month to feed their Apple habit.

            Well, first of all, we all know that’s not going to work.  Since the halcyon days of Napster back in 1999 free has been a force to be reckoned with and it’s not going away.  Duh.  Second of all, Apple proposed to do its free trial run on the backs of musicians.  It wasn’t gonna pay them. It figured that musicians like Apple so darn much that they’d all say, “Sure, we’ll help!  Give our stuff away!  We’re all in this together!”

            Um, no.  Here’s a company with more cash than the US Treasury, and it thinks this is cool?  If you believe that I’ve got some crappy overpriced headphones to sell you.  Do you think this would have happened if Steve Jobs were still around?

            Most people weren’t paying much attention to this when Taylor Swift, or should we say Taylor Swift’s people, issued an open letter to Apple, explaining in the most passive-aggressive way imaginable that Apple wasn’t going to stream her new album for free.  And no, this wasn’t about her, it was about the struggling artists, maybe the band that’s releasing their first album, the struggling song-writer with bills to pay.  And interestingly, she was only holding back her new album, 1989; the other four chart-toppers apparently were fair game for free.  This was unlike her position with Spotify, from whom she famously (and stupidly) yanked her entire catalog late last year.

            Amazingly, Apple caved.  The next day.  Musicians and songwriters will get paid for Apple’s three month free-for-all.  How much?  Who knows?  Probably not much more than Spotify, but who cares, because Spotify has been the poster child for badness while it struggles to make its business model work and Apple, albeit suddenly rudderless and clueless, is still Apple.  

            So Taylor Swift is a hero, right?  Well, yes.  Or maybe not so much.  On the heels of her staring down Apple came an open letter to her from a professional concert photographer, calling her out on her concert photography agreement. 

            Now, big performing artists have long forced photographers to sign onerous contracts in return for being allowed to shoot in the pit.  You can only shoot for the first couple of songs, you can only use one photo in one publication, etc.  It’s all about brand management.  And it’s increasingly stupid since right behind the photographer in the pit are thousands of people gleefully shooting away with their increasingly powerful cellphone cameras.  Many photographers I know sign these agreements, shoot until they’re asked to stop, and then use the photos for any journalistic / art / portfolio purpose they want.  But it seems that Ms. Swift has taken things up a notch.

            If you want to shoot a Taylor Swift show, along with the usual nonsensical restrictions, you grant her the right to use all of your photos royalty-free for “any non-commercial purpose, including but not limited to publicity and promotion”.  Last I checked “publicity and promotion” were commercial purposes, but hey, you know, details schmeetails…  Then, if the photographer doesn’t comply, he or she can have their film confiscated and/or destroyed and be ejected from the venue.  And the photographer waives all claims for damage, injury, etc. at the hands of the Taylor Swift goon squad. 

            Film?  Really?  Artists working for free?  Respect?

Paul Rapp is an early-rising lawyer and musician and advocate for the down-trodden, the powerless, good bourbon, powerful gasoline, a clean windshield, and a shoe-shine.

Wednesday, June 17, 2015


This article originally appeared in the 6.18.15 issue of Metroland.


The Egg Swyer Theater

June 16, 2015

            What I owe to Ginger Baker is immeasurable.  Suffice it to say that in my early teens I, along with a generation of players, absorbed all of those Cream records, especially the live ones with the 10+ minute tracks of utter free-form jamming.  His playing was different than anyone else we were listening to, less predictable and more explosive.  We didn’t know it, but we were getting schooled in African polyrhythms, and we were becoming not just rock drummers, but musicians. So watching him gloriously do his thing now, at the age of 75, was kind of like returning to the womb.  

            If you saw the wonderful documentary “Beware Of Mr. Baker” (and if you haven’t, you must), you know how difficult and weird his life has been.  And that, next to perhaps Keith Richards, there’s no rational reason why he should still be among us.  He’s not big on either compromise or self-restraint.  And that movie relaunched him and here he is a few years later, killing it.

            The show at Egg consisted entirely of tracks from his most recent album “Why” performed with the terrific band he recorded it with, the masterful Coltrane acolyte Pee Wee Ellis, jazz royalty bassist Alex Dankworth and the extraordinary Ghanian percussionist Abass Dodoo.  Baker was helped to his drums by Dodoo and immediately launched into Wayne Shorter’s “Footprints”.  The band members were hands in each other’s gloves, and particularly the interplay between Baker and Dodoo was like one long playful and surprising conversation all night long.

            And oh hella yeah he’s still got it.  The groove was unconscious and Baker uses Afro-beat repetition like bait and then stings you with a jab to the toms.   His days of the ten minute boogeda boogeda solos are behind him (I saw him do one at the Cream reunion in ’04 that brought the crowd to their feet not once but three times) but that doesn’t make him any less lethal.  Not one bit.

            Baker noted that two weeks ago he was in the hospital with pneumonia; the band played four tunes then took a break, and upon coming back Ginger said “we’re going to play a slightly shorter set because the old man isn’t feeling too clever tonight.”  Then they launched into a ferocious rendition of the Nigerian folk song (and Air Force staple) Aiko Biaye, with Baker and Dodoo smiling and laughing throughout.  The sold-out crowd leapt up, roaring.  I don’t think anybody felt short-changed in the least.

            Not too clever my ass, old man.  Thanks for everything.

Wednesday, June 10, 2015


This article originally appeared in the 6.11.15 issue of Metroland.

The internet got highly agitato last week with news of Richard Prince’s latest artworld gambit – making comments on other people’s Instagram photos, then putting a screen shot of the photo + comments on big pieces of canvas and selling them for $100,000.  Nice work if you can get it.  People were sending me articles, asking “how can he do this?” and there was plenty of general outrage all around.

            We’ve been here before, folks.  Welcome to Richard Prince’s world.  These “works”, such as they are, were actually in a NYC gallery show last fall and now they’re in a different gallery show, and for some reason people are just now going ballistic.

            Not only is this particular thing old news, it’s precisely the sort of thing Prince has been doing, and making mountains of money from, for decades.  His ouvre is “rephotography”, taking pictures of other photographs and selling them, sometimes slightly altered, sometimes not, as original works of art.  Or something.  There was “Cowboys”, a series of pictures of Marlboro cigarette ads; there was “Girlfriends”, pictures of photos of babes from biker magazines; need I go on?  Just go to his Wikipedia page for a solemn recounting of his career, complete with modern gallery-speak bullshit explaining the profound importance of his work (“this series is notable for the technique of layering digital and analog media: the application of an analog medium (acrylic) to a digitized print (ink jet) of a digitized image (scan) of an analog print (book cover) of an analog artwork (original art portrayed on the book cover)”).  Read the descriptions of his career and what his work sells for and his $10+ million Manhattan townhomes.  You’ll alternatively laugh, gasp and want to punch something hard.

            Doesn’t he get sued?  Well yes, yes he sometimes does.  Several times here we’ve talked about his recent imbroglio with photographer Richard Cariou over his “rephotographing” of Caribou’s photos of Rastafarians.  The case resulted in one really bad court decision that excoriated Prince but also would have all but eradicated the fair use doctrine had it not been overturned on appeal.  The appellate decision put things back on track, that is to say, returned the fair use doctrine to its former ephemeral, indefinable and messy state.  The case eventually settled on terms that we’ll probably never know.

            Is what Prince does fair use?  Is it “transformative” in meaning?  Is it “fair,” period?  I have people whose opinions I greatly respect, artists, copyright lawyers, scholarly pointy-headed types, who are all over the place about this.  In my most humblest of opinion, I think some of what he does is definitely fair use, some is definitely not, and most of it resides in that grey netherworld of “who the hell knows?”

            And since he’s Richard Prince and has made mountains of money selling his “rephotographic appropriation art” for astronomical prices, he can afford the very best legal representation and turn the court system into a setting for what can only be described as sublime episodes of performance art.  Where he has more fun and gains huge amounts of notoriety, which pushes the prices for his works ever skyward, and where he rarely loses.

            And one reason he doesn’t always get sued and when he does he doesn’t lose is because copyright litigation is damn expensive.  Fair use is a defense to infringement, and it involves issues like how much of the original was taken, the purpose of the taking and the subjective intent of the taker, any lost market value of the original, etc. and so on.  Issues that are so fact-intensive can grind up many hours of attorney time.  And copyright law is a fairly arcane specialty so copyright lawyers tend to charge premium rates.   And unless a work has a registered copyright prior to the infringement, each party has to pay their own attorneys fees.  So good luck finding an attorney to take an infringement case against Richard Prince on spec, even one that looks like a slam-dunk.  The case will be a hard, long, soul-killing and expensive slog for everyone involved.  Except for Richard Prince.

            Some of the “victims” of Prince’s recent Instagram caper, the postmodern pin-up group Suicide Girls, took matters into their own hands and started producing their own blow ups, indistinguishable from the ones Prince’s gallery was selling for $100,000, and selling them for $100, 0.1 percent of what Prince was getting.  Prince tweeted that this was “smart.”

            We’re talking again about Richard Prince which means that he wins!  I don’t begrudge him this one bit.  It’s beyond brilliant. The people I really resent, those I’d feel sorry for if they weren’t such scum, are the bourgeois assholes that buy his stuff, people who don’t give a shit about art or beauty or originality, but who buy this stuff thinking it will turn a profit for them, who think that owning a Prince or two makes for a nice diverse investment portfolio along with their hedge funds and real estate trusts.  I hope the fake-art market disintegrates and their $100,000 “investments” turn into the worthless pieces of canvas that they truly are.

Paul Rapp is a local IP attorney who happens to think that art, beauty, and originality are real, tangible, and as immutable as the truth.