Wednesday, September 30, 2015


This article originally appeared in the 10.1.15 issue of Metroland.

Well, it’s silly season on Facebook again, where the more gullible amongst us get their knickers in a twist over some fake nonsense about Facebook’s inherent evility.   Both of the things that popped up this week, or versions of them, have been around before, and they were debated, debunked, and banished.  But they’re back, demonstrating, again, how oddly paranoid and delusional many of us are.

            First of all, don’t you worry, Mark Zuckerman isn’t going to charge you to keep your information “private” or to let you continue to use FB.  The twist with this ruse this time is that the claim was supposedly backed up by an article somewhere on Huffington Post.  I spent a few minutes of my life looking for such an article and couldn’t, but it doesn’t matter.  It’s not gonna happen, the very idea that it could happen is ridiculous, and if you believed it, even for a second, you’re ridiculous.

            And then there’s that bold “declaration” of privacy rights, where the poster stridently proclaims to be master of his or her FB domain under some European UCC code and all that’s holy, and that the reposting, use, pondering, smelling, or licking of the poster’s content is punishable by slow death.  Or something.  C’mon.  Do you really think that your posting of some fake-legal gobbledy-gook is going to trump the terms of service you agreed to when you signed up for FB?  Really?  And where were you two years ago when this crap went around the first time?

            But then, we live in a country so dumbed-down by the media that a good number of us believe we walked among the dinosaurs 10,000 years ago, that the earth really was created in a week, that the Kardashians are role models and that Donald Trump is a serious choice for President.  We are a stupid idiot nation.  It’s just disheartening to be reminded.

            Moving on.  You may have heard that a judge ruled that music publishing giant Warner Chappell’s copyright in the song “Happy Birthday” was invalid.  For years, Warner Chappell has been shaking down filmmakers, television producers, and anyone else who wants to use the ubiquitous ditty for hefty licensing fees, and has also been getting big fat checks from ASCAP for things like when the waiters at a Chinese restaurant gather around your table and sing “happy birthday, dear customer….”  It’s been reported that WC has been raking in over $2M simoleons annually from this.  And pretty much everybody agrees that it’s stupid.  Livestream-broadcasted conferences have gotten interrupted when the audience decides to sing “Happy Birthday”; Stephen Colbert introduced an alternative, hilarious, royalty-free song people could use instead. But, until recently nobody’s challenged Warner Chappell’s claimed monopoly on this silly little song we’ve all sung at birthday parties hundreds of times.

            In 2008 some academics published a paper that showed that the melody of “Happy Birthday” was definitely in the public domain and that the lyrics almost definitely were.  Then in 2013 Warner Chappell finally got sued.  Just this past June, the plaintiffs uncovered an old songbook containing the lyrics that was published in 1922, which would indicate that the lyrics were also in the public domain.  And last week the judge ruled that Warner Chappell’s copyright was indeed a crock.

            Interestingly (or not), the judge didn’t rule that the lyrics to Happy Birthday were in the public domain, as has been widely reported.  Nope.  Not yet anyway.

            The decision is frustrating and complex, but in the final analysis, kind of hard to argue with.  It grapples with things that may or may not have happened almost 100 years ago, based on shreds of evidence that are at best ambiguous.  A pair of sisters claimed to have written the lyrics, but didn’t register the copyrights themselves.  It’s not clear that they ever authorized anybody else to register the copyrights either.  That songbook in 1922?  There’s no good evidence that the sisters licensed the lyrics to it. Or didn’t! So what was Warner Chappell hanging its hat on?  A copyright registration from 1935 naming one Preston Ware Orem as the author of a “Republished Musical Composition with New Copyright Matter.”  And the “new copyright matter” was described as “piano arrangement, with text.”  The court ruled that since Preston Ware Orem was not one of the sisters, and since everybody pretty much agreed that the sisters wrote the lyrics, that the “with text” part couldn’t be referring to the lyrics, and if it did, it was invalid.  Warner Chappell, say buh-bye to your cash cow!

            So, whether there is still some kind of copyright for “Happy Birthday” is unclear.  But given all the water over the dam, it’s highly doubtful.  So, pending the almost certain appeal of the decision by Warner Chappell, I say go ahead and use the damn thing.  Happy Birthday to you!

Paul C. Rapp is an intellectual property attorney and a crudely erudite student of the oddities of popular culture.  Like this here.

Wednesday, September 16, 2015


This article originally appeared in the 9.17.15 issue of Metroland.

As the clown car of evil, stupid, absurd, and pandering Republican candidates struggles to be taken seriously, the all-to-familiar spectacle of these right-wing assholes trying to co-opt rock and roll is back on center stage.  Why is it that Republicans believe they can appear “with it” and “hep” by using the works of artists that despise them?

            Let’s review a couple recent examples.  Union busting Koch stooge wanker Scott Walker used his favorite Dropkick Murphys song at campaign stops; the band got on Twitter and said “Please stop using our music in any way...we literally hate you!!! Love, Dropkick Murphys.” The band compared Walker to a "white supremacist coming out to gangsta rap."  The Donald used Neil Young’s “Rockin’ In The Free World”, and Neil issued a statement that he was a Bernie Sanders supporter and didn’t want his music used in any political campaigns.  Trump’s campaign said that because it had an ASCAP license that the use was OK, then Trump tweeted that Young was a “total hypocrite” because Young had asked him recently to invest in Young’s ill-fated Pono music venture. Why this is hypocritical is anybody’s guess, but then Trump announced he’d stop using the song, tweeting @Neilyoung’s song, “Rockin’ In The Free World” was just one of 10 songs used as background music. Didn’t love it anyway.”  Ha!

            Mike Huckabee muscled Ted Cruz off the podium to stand in solidarity with Kentucky Jeebus nutjob county clerk and serial adulterer Kim Davis after she got sprung from the hoosegow, all to the tune of Survivor’s “Eye Of The Tiger”.  The Survivor guys went ballistic, and it was reported that the band was suing Davis and Huckabee for $1.2 million dollars.  That report was apparently a hoax, but meantime Huckabee, despicable little worm that he is, is running around saying the song wasn’t his choice.

            I think the best one was when Ted Cruz and Donald Trump used REM’s “It’s The End Of The World As We Know It” at an anti-Iran deal rally.  REM’s Michael Stipe responded thusly: "Go fuck yourselves, the lot of you -- you sad, attention-grabbing, power-hungry little men. Do not use our music or my voice for your moronic charade of a campaign."  Boom!  Down goes Frazier!

            The public embarrassment to these idiot politicians—to be told, flat-out, that no, you’re not one of the cool kids—is rich, one of the better side-shows to the sad circus that is the Republican presidential race.  But it might surprise you that the legality of using popular recordings in a political campaign is not as clear as you’d think.  It’s not a matter of copyright, that’s for sure.  The public performance of recordings is not protected by copyright law, due to an odd glitch in the law that has its roots in the once-powerful lobbying muscle of the radio industry.  The public performance of the songs, the compositions, is covered by ASCAP/BMI licenses, which are typically owned by the venues where the songs are played or by the campaigns themselves.  When Trump’s people said their use of “Rockin’ In The Free World” was OK because they had an ASCAP license they were correct as a matter of copyright law.  It was OK.

            But that’s not the end of the story.  What’s also implicated here, maybe, is the performers’ and the songwriters’ rights of publicity, the right to control the use of one’s image, name, voice, and persona for something that looks like a commercial endorsement.  And it’s a sticky wicket.  As we’ve discussed here a couple of times, there is no national standard for the right of publicity, it’s purely a matter of state law, and among the states, it’s a beguiling mish-mash of differing statutes, in states that don’t have statutes it’s a matter of common law, and courts in all fifty states are constantly making rulings about the right of publicity that go every which-a-way.  So, like we like to say about our relationships on social media, it’s complicated.

            Let’s take New York.  New York has a law that bars the use of someone’s persona for “commercial purposes,” which has been narrowly interpreted to mean advertising.  Is blasting “Eye Of The Tiger,” ostensibly to invoke Sylvester Stallone’s Rocky character being triumphant against incalculable odds, used when some Christianista loser gets out of jail and an opportunistic politician jumps on stage with her… is that “advertising”?  Did anybody really think “Gee, is Survivor against gay marriage?”  Did anybody think of Survivor at all? Did anybody seriously wonder if REM really supports Ted Cruz or if Neil Young was a big Trump guy?   

            Both ASCAP and our pals at the Future of Music Coalition have excellent online legal fact-sheet-guides to using popular songs in political campaigns.  But legalities aside, justice is usually done: the flag-wavers for the Party of Stupid get humiliated, the songs stop being used, and all is right with the world again.

Paul C. Rapp is a local entertainment attorney, lifeguard, and woodsman who comes from a long line of Republicans who would not be Republicans today because us Rapps are smarter than that.

Wednesday, September 02, 2015


This article was originally published in the 9.3.15 issue of Metroland.

            You’ve no doubt caught wind of the painted topless ladies cavorting around Times Square in New York City.  It’s a hilarious coda to the decades-long reinvention of Times Square from a seedy porn mecca to a big garish tourist mall that real New Yorkers avoid like the plague.  And despite the Governor and the Mayor both registering outrage over these pubic displays of boobage (one of the few things they seem to agree on) it’s universally agreed that, in New York anyway, it’s perfectly legal.  It goes back to a short 1992 Memorandum-Decision by the New York State Court of Appeals that ruled that a state law criminalizing the exposure of a woman’s, but not a man’s, breasts was unconstitutional.  The only thing about this that’s perplexing is why it took so long for this topless deal to become mainstream.  That is, if you consider Times Square mainstream.

            Actually, there’s a pioneer in our midst who blazed the way for this sort of behavior.  A few years ago I was hired by local film-maker Chris Stearns to review (for legal issues) his film Topless Shock Syndrome about the travails of Schenectady native Holly Van Voast, a photographer and conceptual artist who, in 2011 and 2012 went around New York as her alter-ego Harvey Van Voast, “the topless paparazzo”.  The film follows Harvey, generally topless, with a painted-on mustache, as she (he?) talks to strangers in the subway and on the street, is hassled endlessly by police, etc. and so on.  Harvey was arrested numerous times, forced into a mental hospital for a psychiatric evaluation, and always, every time, she was set free, mainly because of this 1992 court decision.  She eventually sued the City in federal court, received a nice settlement, and the lawsuit resulted in New York police policy being changed to allow for women going topless.   The documentary is equal parts hilarious and thought-provoking, not to mention extremely timely, and if you’re interested you can find it on Amazon.

            Moving on.  The Pope’s coming and you know what that means:  official Pope merchandise!  The World Meeting of Families organization, a Vatican-sponsored organization that is apparently bringing his Popeness to Philadelphia, commissioned a pop artist named Perry Milou to whip up some nice Pope images.  One in particular, of the Pope throwing a kiss, is available at the WMF site adorning a tote bag, a coffee mug, a t-shirt, a paperweight, and a couple other tchotchkes.   Over on Milou’s site, the image is on a wide variety of expensive limited edition prints (including an “Andy Warhol-style” version), and the “priceless” original painting is up for a cool million.

            There’s just one problem.  As Buzzfeed first reported, the image is a direct cop of a photograph owned by Getty Images.  Oops!  And it’s an extremely realistic painting, wrinkles, warts and all.  Our friends at Techdirt compared this to the Shepard Fairey “Hope” Obama imbroglio from 8 or so years ago, going so far as to say that a painting of a photograph is almost always transformative and therefore fair use and not infringement of the photograph’s copyright owner’s copyright.

            I’m not so sure.  As we’ve discussed here before, I think Fairey would have won his case against the Associated Press (if he hadn’t destroyed his case by hiding evidence and lying to everybody, including the court) because he so drastically altered the original Obama photograph.  By the time Fairey got through with it, there was little left of the original photo other than the contour of Obama’s face and the tilt of his head.  Because the copyright can’t possibly protect these things, I don’t think Fairey’s poster was non-infringing.

            In contrast, the Milou painting, as I just said, is a slavish reproduction of the photograph, really down to minute detail.  While Milou used only the Pope’s head in his painting (the original photograph had some composition in the placement of the Pope and a background of blurry flags), the level of detail is so great that I think Getty has a good claim that Milou ripped off the photograph and that the rip-off constitutes copyright infringement. And it pains me to say this, because I don’t like Getty Images and their nonsensical bullying tactics in chasing around every John Q Public who sticks a precious Getty image on his website.

            Apparently, as we speak, Milou and Getty are “in discussions” and I suspect Getty will get a significant chunk of Milou’s and World Meeting of Family’s proceeds from the sales of this stuff.  Which will probably be pretty huge, Catholics being who they are, and this wonderful Pope being who he is.  We’ll see whether Getty does the right thing and gives the money to charity.  And we’ll see if any of Milou’s other Pope images (there are several) are infringing as well.  Yikes!

Paul Rapp is an entertainment lawyer who over the weekend ignited a nasty online incident over the propriety of horse racing.  So nasty that he decided not to write about it here.  Maybe next year.