Big Changes in Copyright Registration


Big Changes in Copyright Registration
by Susan Basko, esq.

Recently, there have been several really big changes in U.S. Copyright Registration.

The first big change was brought about by a Supreme Court ruling.  The law has been that to file a copyright infringement lawsuit, you had to already have registered copyright on the work you were claiming was infringed.  But what did it mean to "register copyright"?  Was it enough to complete the application, or did the entire registration process have to be completed?  In the past, in most courts, you could simply apply for copyright registration and proceed to a lawsuit while the application was pending.  Now, the Supreme Court says the registration must actually be complete.  Copyright registration is a process that, at this time, is taking about a year to complete.  That's right -- I recently filed some copyright applications and the info box popped up saying the current time estimate is one year-- although in the past, I have seen it at times as low as six months.  Depending on the timing of things, this gap of a year's time could mean a person might not be able to meet the 3 year statute of limitations on a copyright claim.

Thus, it is more important than ever to file your applications to register copyright on your creative works as soon as possible after creation.  Having your works registered promptly can often prevent the need for a lawsuit, too, because the threat of a lawsuit is then present, along with the possibility of statutory damages and/or attorney fees. There is no power or leverage in claiming a creative work as your own if you have no copyright registration to back it up; there is a great deal of power and leverage in having clear ownershihp of a registered copyright on your work.  It is also important to name your works so the name given immediately and clearly identifies the work being protected.  There is nothing so powerful as making your work easily searchable and identifiable in the Copyright database.

 There is simply no substitute for registering copyright and now some other changes at the Copyright Office have made it easier and less expensive than ever to register your works.  In the past, we could register "collections" of items.  The Copyright Office meant for all items in a collection to be protected, as well as the collection itself.  Some courts meddled in and interpreted collections to mean that only the collection itself was protected, and not the individual items.  The response of the Copyright Office has been to create an administrative provision allowing the registration of a group of related items using one application and one application fee, but where each item in the group will be specifically registered.  The registration forms ask for information on each item in the group, thus providing a more robust searchability in the database, and thus, better protection.  Group registrations are the best thing to come along in Copyright in a long, long time.   So let's look at what can be registered as a group at this time.

A group registration allows registration of UP TO 10 UNPUBLISHED WORKS by the same author or authors and all of the authors must also be the copyright claimants.  All 10 works must be in the same category and all must be making the same claim.  The application must be made online on the US Copyright website, and digital copies of the works must be uploaded.

The copyright office also has new rules allowing group registration for UP TO 750 PUBLISHED PHOTOGRAPHS.  That's right -- seven hundred fifty photographs are given copyright protection for one small fee.  This is amazing protection for just pennies a picture.  The photos must all be by the same author, all from the same calendar year, all must be published, the copyright claimants must all be the same, a digital copy of each photo must be uploaded, and a list of each photograph and its info must be made using a template provided by the Copyright Office.  This is an incredible bargain in allowing up to 750 photos to be registered for one fee.  Similarly, a group of UP TO 750 UNPUBLISHED PHOTOGRAPHS may also be registered, using similar guidelines, but the set must all be unpublished.

In addition, the Copyright Office is proposing a rule that will allow a group registration of up to 50 short online literary works that were authored within a 3 calendar month period, all with one application and one registration fee.  If this rule comes into practice, it would be useful for "poems, short stories, articles, essays, columns, blog entries, and social media posts."  If this rule goes into effect, it will probably be implemented in late 2019 or in 2020.

With these new Group registrations, there simply is no excuse to not protect your valuable creative works with Copyright registration.


R. Kelly Studio Fiasco/ code violations

 R Kelly Studio space, 2nd floor, photo from 2015, before Kelly rented there.
R. Kelly Studio Fiasco/ code violations
by Susan Basko, esq.

R. Kelly has lots of legal troubles lately, including that he is being evicted from the studio he rents for over $22,000 per month.  According to the Chicago Reader, the studio is owned by Midwest Commercial Funding, LLC.  Chicago got an inspection order, went in and found 48 building code violations.  The building is also up for sale for nearly $4 million.  It's not likely a building being sold with a whole roster of major code violations can be sold for that much money.

The studio building is a warehouse near Union Park in Chicago.  This is an up and coming area with a lot of hip businesses, internet-based start-ups, cafes, etc.  The area is near the Lake Street el, is a few minutes from downtown, but is dicey.

R Kelly Studio building exterior
This is the exterior of the building, as shown in a realtor ad.  According to the realtors, the building was built in 1928.  The second floor is an open area 40 feet by 100 feet, with a 14 foot ceiling.

R Kelly studio 2nd floor, picture from 2015 before Kelly was a tenant.
Kelly was getting bad publicity after a scandalous news article by Jim DeRogatis was published, alleging that Kelly was running a sex cult and/or holding women captive.  The landlords moved to evict Kelly and were trying to sell the building. The City got this inspection order below.

Chicago building inspection order for the building housing R Kelly's studio
If you know anything about Chicago, you know the City uses building code violations to harass people or to gets its way, if they cannot find a more efficient route.  So, the City building inspector came into the studio and found 48 building code violations.  This is a building up for sale for almost $4 million -- so, either the price must be reduced to allow a buyer to repair the place, and/or it must be sold as is and someone has to fix it, or it must be sold as is for demolition. 

In 2010, an inspector found numerous code violations on the exterior of the building, but entry to the interior was refused.  This was before R Kelly was a tenant.  See the notation that in 2010, the building inspector was refused entry to the building.

The report includes the long list of  2019 alleged code violations, which are labeled as being from the Strategic Task Force, which sounds much more dire than just a building inspector.  The building owners are being required to remove plumbing and other work that was done without a permit.  They are required to hire an architect, come up with plans, get permits, and make a lot of structural repairs and improvements.  

Meanwhile, it looks like R. Kelly can take his money and go have a studio somewhere that does not have massive building code violations.  Scroll along the right edge of the report to view all of the alleged violations in detail.


Jussie Smollett -- What Went Uber Wrong with the Plan

Jussie Smollett - photo credit:
By Sister Circle Live 
Jussie Smollett -- What Went Uber Wrong with the Plan
by Susan Basko, esq.


Other writers: If you are going to "borrow" my writing or research, at least give me credit.  I do original research and -- heck, you ought to try that, too.

The latest twist in the Jussie Smollett street attack story is that he paid his two body-building friends, Chicagoans Nigerian brothers Abel and Ola Osundairo, $3500 to stage the mugging.  (Allegedly, someone emailed in to remind me to write allegedly.)

What went wrong with the plan?

1. The story seemed fishy from the beginning for a whole roster of reasons, including that Chicago is not MAGA country, but rather, is a sanctuary city and longtime Democratic stronghold.  Then there was the fact it was an icy cold Chicago night and people were not out strolling about.  Surveillance video had to be searched to find even two people out and about.  Then there was the oddball fact that Jussie Smollett still had his Subway sandwich after being attacked and tossed around.  Subway sandwiches are excellent, but in case of a violent tussle, are likely to be dropped and lost.  All in all, the story came rang up as not likely fully true.  

2. The attack took place - or was staged -- just below a street surveillance camera.  And then it turned out the camera was actually facing the opposite direction. This was the first big snag in the plan; the video evidence was nonexistent.

3. Chicago police located two potential attackers on surveillance video and then, according to at least one news report, used the Uber ride-sharing app to identify one of them.  Uber requires those who join its app to allow the company to have access to the phone's locations, pictures, files, phone calls, texts, contacts lists, etc.  All the CPD had to do was issue a subpoena or warrant to Uber and they could obtain not only the name of the man using the account, but his financial data, airline ticket jpgs and itineraries which were likely stored on the phone, photos, a location history, and tons of other information likely contained on the phone that the user had given Uber permission to access upon joining Uber.  Scary?  The permissions required are why I have not joined Uber; I was shocked when I recently read the permissions list.

Here are screen shots of the Uber app permissions that appeared on a version of the app that recently appeared.  The app gives written notice that "Updates to Uber may automatically add additional capabilities within each group."  In other words, these capabilities may be expanded each time an app update occurs.  Some apps update automatically, and others require a click or permission.  Very rarely would anyone seek out or read what permissions are being given to the app on an update.


This first screen full of permissions gives Uber permission to know the identity of the user, find accounts on the phone, add or remove accounts, read the contact card, read the person's contacts, and find the person's approximate and precise locations.


This second set of permissions gives the Uber app the abilitiy to receive text messages on the user's phone, read the user's text messages, and send text messages from the user's phone.  Uber is also given permission to directly call phone numbers, presumably using your phone or possibly using your phone contacts to make phone calls.  Uber is also given permission to modify or delete contents of the user's SD card.  The SD card is where you may have stored pictures, files, tickets and receipts, songs and videos, games, etc. 


This third set of permissions allows Uber to use the user's camera to take pictures and videos! It also allows Uber to obtain the user's WiFi connection information, which would show which WiFi systems have been available to your phone and which you have logged into.  This would be a way of tracking the Uber user's movements and activities, as well as a way to be able to find out more information, such as what was done on any of those WiFi systems.  Included in this set of permissions is that Uber can read the phone status and identity and the Device ID and phone call information.   You're just calling for a car ride, not joining the CIA, remember.




This fourth set of Uber app permissions overlaps with the third screen.  Here, Uber lists as "Other" a set of "New" permissions.  Uber can: Draw over other apps (I am not sure exactly what this means, but it does not sound good), prevent phone from sleeping, connect and disconnect from WiFi, read Google service configuration, control vibration, pair with bluetooth devices, change your audio settings, use accounts on the device (sounds like it can buy things on your Amazon account? or what?), view network connections, and have full network access.

Basically, when you give Uber all these permissions, you are employing Uber to spy on you, your contacts, your locations, phone calls, your audio, and all your files.

It sounds like with the two Nigerian-Chicagoan brothers, the Chicago Police Department were able to track them via the Uber app.  One day, the men in the grainy photo were unidentified and barely recognizable.  Soon thereafter, Chicago police knew their names, their address, knew when they had flown to Nigeria and when they were coming back.  Police were waiting at O'Hare Airport for them upon their return.

What's the upshot here?  Does Uber need all this information and all these capabilities to arrange for someone to give you a ride?  Likely, it needs some of these capabilities.  Having some of these permissions probably makes Uber riders and drivers safer or at least they can be held accountable easier if they do something bad.  After all, with Uber, you are getting into a car with an unlicensed stranger and that driver is allowing random people off the street into their car.  The Uber app permissions make both the driver and riders more known and less random.   The knowability probably makes the whole enterprise a bit safer for all involved.

The downside is you are giving Uber the right to act as a surveillance machine upon the intimate details of your life that are contained in your phone.  Upon considering this list of permissions, I could not get myself to click, "I accept."   I decided that if I cannot walk or take a bus or train, I will call a taxi or a friend, if one is nearby.  Many times, I am in places where taxis are scarce.  My lack of Uber has meant such things as walking with groceries in the rain or walking a distance to where I knew there was a cab stand.  It's not convenient and I long to use a ride sharing service, if one were respectful of my privacy.

What is the legality of police using information gathered by the Uber app, when the Uber user has given the app permission to gather all that information?  If the police serve a subpoena or warrant upon Uber, it seems likely the Uber user has no standing to object to the subpoena and would probably not even be given notice of the subpoena.  Might the police require Uber to commandeer the phone and, for example, require Uber to give the location of the phone, and likely of the phone owner, since most people carry their phones with them?  Might police require Uber to use the phone camera to show the people or the place where they are located?  Might police require Uber to use the phone as a listening device?  Or would Uber be required to only give the information it would have otherwise obtained in the normal course of its business operations?

Conversely, are there privacy laws that prohibit an app from gathering excess information?  Right now, as far as I know, the legal standard is that the app must get permission from the users to gather or use information.  However, app permissions are always a take-it-or-leave-it proposition -- either you agree to allow the app to do what it does or you do not use the app.  A user cannot opt in or out of the various permissions.  And, as seen above, the app can automatically add on more capabilities with each update.

All these are legal questions that have yet to be explored, as far as I know.   Right now, awareness is the key.  If you are agreeing to turn your phone into a complete surveillance device that can be used against you, then at least be aware you are doing that.


Film Distribution Expenses - Budget for them


Film Distribution Expenses - Budget for them
by Susan Basko, esq.

It is that time of year when "everyone" is pitching show and movie ideas, meeting up with their production staffs, and trying to get a film project rolling.  It's an annual holiday-like season for filmmakers when there is much chatter and lots of coffee.

Let's look at a list:

Pre-production
Production
Post-production
and -- and -- what comes next?

That's right -- Distribution.  Distribution should be the end goal of most productions, but it is most likely to be left off the budgets.  Today, a tiny handful of filmmakers will distribute their films in theaters, The rest will distribute their films online, as VOD, on Youtube, Itunes, Amazon, and other such sites.  Some will sell or rent DVDs, though that method is cumbersome when online streaming is possible  Never skip and never underestimate the distribution budget, because, even in this age of online distribution, the expenses can be quite high.  Without a distribution budget, you cannot get distribution, unless you enter into a usurious distribution contract where you will never see a dime.

Here are some things that should be in your Distribution budget for when a movie is going to be distributed such places as Itunes, Amazon, and other such places, or sold as DVDs.  There are probably other things that should be in the budget, but these are the basics:
  • Errors and Omissions insurance 
  • Closed Captions
  • Encoding 
  • Trailer, Greenband trailer, teasers
  • Photos - stills, set pics, posed cast and crew
  • Art for online sales, art for DVD if that will be a method of distribution
  • DVD authoring and dupes, if DVDs will be a method of distribution
  • Posters
  • Sales sheets
  • Website with press materials, trailer, jpg photos, cast and crew list, etc
  • Someone to run social media accounts
  • Someone to respond to email queries
  • Marketing strategy plan and expenses for that
  • Festival entries
  • Travel to festivals
  • Ads in local or free online weeklies, industry websites or papers, etc.




Jussie Smollett -- Where the Attack Took Place

Subway Sandwich Shop by McClurg Court, Chicago
Jussie Smollett - Where the Attack Took Place
by Susan Basko, esq.

Actor Jussie Smollett recently reported being attacked on a Chicago street near his apartment.  There has been some confusion among people as to the location and situation.  As a Chicagoan who has been on those streets thousands of times, I shall explain with pictures taken off Google maps.

The Loews Hotel Chicago also has apartments, called the North Water Apartments.  Apartment residents can enter from the hotel lobby, the apartment entrance around the side, or the lower level parking garage that goes out onto the 300 block of East Lower North Water Street.

East Lower North Water Street. That street name may sound confusing.  When the hotel was built, it was designed with an upper and lower street level, like the nearby buildings.  The lower level is not actually underground, but appears to be because it has a roof over it.  It is at normal street level.  This lower level is used for an entrance to a parking lot, for delivery vehicles, etc.   The upper level is at the created upper street level and is the "fancy" level. This two-level development scheme started long ago with the Tribune Tower on North Michigan Avenue, and then was extended going East toward Lake Michigan with the University of Chicago Gleacher Center and NBC Tower.  When the Loews Hotel and North Water Apartments were built east of Columbus Drive, those were also built with two street levels.  The North Water Apartments are built over a street created for this purpose, which is called New Street, possibly because they were making a new street.

The upper street levels are fancy, open to sunlight, decorated with plants and flowers, but also open to extreme winds and cold in the winter and blistering hot in the summer.  The lower street level is dark, lit by street lights, and can be choked with car exhaust.  The lower street levels provide some protection from the strong winds and cold that are on the upper levels. How strong are the winds?  A few times a year, local news stations feature videos of people being blown over or nearly swept away by the winds.  Chicago is nicknamed "the windy city," an apt name.

If one is walking outside, to get from the upper levels down to the lower or street levels requires walking down a steep staircase.  I am not aware of any other way of going from the upper to lower levels, such as a ramp or elevator.  In the rain and snow, these staircases are slippery.

The North Water Apartments are designed to attract corporate rentals for their workers and guests who will be in Chicago for stays too long for a hotel room and too short to justify renting a regular apartment or buying a house.  The building works with a furniture rental company, since many renters will be short term.  The North Water Apartments range from studios at over $2000 per month plus amenities fees plus furniture rental, to 2 and 3 bedroom apartments starting at over $4000 per month.  These apartments are considered good as corporate rentals; for wealthier law, medical, and MBA students from the nearby schools; for interns working in Chicago for a few months; and for those just arriving for a new job.

The North Water Apartments have spectacular views. Depending on which way the apartment faces, the views may be of Lake Michigan, the Chicago River, Navy Pier, the downtown skyline, or a city view.  The building has a pool, an outdoor space with shared barbecue grills, and a nook with a media center and digital fireplace.

When I first attended college, the school was a block from where the North Water Apartments are now.  Back then, our film school was in a building rented one on side to film production companies.  On the other side of the building was a water slip, an inlet of Lake Michigan, with boat slips for yachts and motorboats.  We students ate lunch at a cheap cafe down the block, which was the only eatery for many blocks around.  There were many empty lots with scrap shrubbery.  There were blocks lined with mysterious storefronts offering such things as reupholstery services, skateboards for sale, and fortune telling.  Over the years, an enormous amount of development has taken place in that area.  The building where I first learned to edit film is now home to a Target store and an assortment of upscale cafes and shops, with high end boats mooring on the south side.  There are many newer townhouses, highrises, pocket parks, restaurants, and stores.  Despite all this development and the apparently dense population now living in highrises, at night, the area has a feeling of being deserted and potentially unsafe.  In winter, winds rip through the plazas to create frigid wind chill temperatures.  In the summer, all that concrete turns the area into a baking oven.  By day, the area is flooded with tourists and suburbanites and sometimes, notorious teen mobs who ride the subway train to come wreak havoc.  It's an exciting area, but it is not cozy or homey or safe-feeling.  The area is upscale, but seems to draw those seeking to rob or assault or pickpocket or shoplift.  It's the sort of area where one could live a luxurious lifestyle, while constantly on guard for crime.  It's the kind of place where you don't keep a wallet in your back pocket and you wear your purse cross-body.

Let's look at some photos of the area.  All of these have been carefully selected off street view of Google maps.  They are used here in fair use for purposes of analysis.

When viewing the pictures, notice how easy it would be to stand on the upper level and watch someone walking on the lower level -- and then walk quickly down the stairs just in time to mug that person. Also notice the many nooks and crannies where a person could hide and wait to pounce out.


This first picture is of the Loews Hotel.  The North Water Apartments are part of this complex.  This picture is at the upper street level.  If you keep going ahead down this street, you come to the entrance for the North Water Apartments.


This is the street level entrance to the North Water Apartments.


This is the entrance to the North Water Apartments, with the circle drive in front of the entry.  In the distance, we can see one of the buildings that would be passed in going to the Subway shop.


This is the circle drive in front of the North Water Apartments.  In the back corner, you can see the staircase one would have to walk down to get to the lower street level.  This is why many people exit out onto the lower street level, which is dark and tunnel-like.



This is what it looks like on East Lower North Water Street.  One can enter or exit the hotel and apartments, walk down this street, and come out at regular street level of the surrounding streets.  That makes it a shortcut.  The roof above also protects it somewhat from the cold, rain, and snow.



This is the staircase at the end of East Lower North Water Street.  See the tall staircase one would have to climb to get from the upper level to the lower level.  Also note how standing on the staircase would give one a good view of the streets below.  Also note the hiding spaces provided by the staircase structure.


This map shows the route from the North Water Apartments, in the lower left corner, to the Subway restaurant in the upper right corner.  This is about a 5 minute walk, possibly 7 minutes if stopped by a traffic light.



This is a sky view looking from the East.  The pink dot is marked Loews Chicago. The Subway restaurant is on the ground floor of the tall darker bluish building to the right.


This is the reverse route -- looking from north to south.  The Subway is on the ground floor in the building on the lower left corner of the picture.  Walk north to the first street, which is Illinois Street.  Make a right turn and walk a short block to New Street.  At New Street, turn left and walk along New Street.  It is a long block along New Street up to North Water Street.  This is near the top center of this aerial view.  This is where the attack took place, from reports I have heard.


This is a sky view of the corner of New Street and East North Water, near where the attack happened.  At this corner is the street level entrance to the lower level of North Water Street.


 This is the street level at the intersection of New Street and East Lower and East Upper North Water Streets.  If one enters the lower street level, there is an entry to the hotel and apartments, as well as entrances to parking.  If one climbs the staircase seen to the left, this goes to the circle drive seen in earlier pictures and directly to the entrance of the North Water Apartments.  With these being the choices, it is obvious why one might choose the lower level, even though it is dark and tunnel-like.  From reports I have heard, the attack took place near this intersection.  It sounds, from timing on surveillance videos, that the attack was one minute long and took place out of view of the cameras that have been located thus far.



New Illinois Legal Tools Against Cyberstalkers



New Illinois Legal Tools Against Cyberstalkers
by Susan Basko, esq.

Starting in 2019, Illinois ramped up the protections against cyberstalkers by making it illegal to send unwanted social media messages.  This is part of the civil restraining order law. The order puts the stalker on notice  -- and then any unwanted social media messages are a violation that can get the person arrested and charged. 

 Section 5. The Stalking No Contact Order Act is amended by
changing Sections 5, 10, and 15 as follows:
    (740 ILCS 21/5)
    Sec. 5. Purpose. Stalking generally refers to a course of
conduct, not a single act. Stalking behavior includes following
a person, conducting surveillance of the person, appearing at
the person's home, work or school, making unwanted phone calls,
sending unwanted emails, unwanted messages via social media, or
text messages, leaving objects for the person, vandalizing the
person's property, or injuring a pet. Stalking is a serious
crime. Victims experience fear for their safety, fear for the
safety of others and suffer emotional distress. Many victims
alter their daily routines to avoid the persons who are
stalking them. Some victims are in such fear that they relocate
to another city, town or state. While estimates suggest that
70% of victims know the individuals stalking them, only 30% of
victims have dated or been in intimate relationships with their
stalkers. All stalking victims should be able to seek a civil
remedy requiring the offenders stay away from the victims and
third parties.
(Source: P.A. 96-246, eff. 1-1-10.)

The law also adds as prohibited places of contact workplaces, schools, and places of worship -- and authorized those in charge of those places to file restraining orders.



  (740 ILCS 21/10)
    Sec. 10. Definitions. For the purposes of this Act:
    "Course of conduct" means 2 or more acts, including but not
limited to acts in which a respondent directly, indirectly, or
through third parties, by any action, method, device, or means
follows, monitors, observes, surveils, or threatens, or
communicates to or about, a person, workplace, school, or place
of worship, engages in other contact, or interferes with or
damages a person's property or pet. A course of conduct may
include contact via electronic communications. The
incarceration of a person in a penal institution who commits
the course of conduct is not a bar to prosecution under this
Section.
    "Emotional distress" means significant mental suffering,
anxiety or alarm.
    "Contact" includes any contact with the victim, that is
initiated or continued without the victim's consent, or that is
in disregard of the victim's expressed desire that the contact
be avoided or discontinued, including but not limited to being
in the physical presence of the victim; appearing within the
sight of the victim; approaching or confronting the victim in a
public place or on private property; appearing at the workplace
or residence of the victim; entering onto or remaining on
property owned, leased, or occupied by the victim; or placing
an object on, or delivering an object to, property owned,
leased, or occupied by the victim; and appearing at the
prohibited workplace, school, or place of worship.
    "Petitioner" means any named petitioner for the stalking no
contact order or any named victim of stalking on whose behalf
the petition is brought. "Petitioner" includes an authorized
agent of a place of employment, an authorized agent of a place
of worship, or an authorized agent of a school.
    "Reasonable person" means a person in the petitioner's
circumstances with the petitioner's knowledge of the
respondent and the respondent's prior acts.
    "Stalking" means engaging in a course of conduct directed
at a specific person, and he or she knows or should know that
this course of conduct would cause a reasonable person to fear
for his or her safety, the safety of a workplace, school, or
place of worship, or the safety of a third person or suffer
emotional distress. Stalking does not include an exercise of
the right to free speech or assembly that is otherwise lawful
or picketing occurring at the workplace that is otherwise
lawful and arises out of a bona fide labor dispute, including
any controversy concerning wages, salaries, hours, working
conditions or benefits, including health and welfare, sick
leave, insurance, and pension or retirement provisions, the
making or maintaining of collective bargaining agreements, and
the terms to be included in those agreements.
    "Stalking No Contact Order" means an emergency order or 
plenary order granted under this Act, which includes a remedy
authorized by Section 80 of this Act.
(Source: P.A. 96-246, eff. 1-1-10.)

The law widens the group of people who may apply for a restraining order to include those who are being stalked -- which includes those who fear for their safety or suffer distress because of unwanted contact, including unwanted social media postings.  

(740 ILCS 21/15)
    Sec. 15. Persons protected by this Act. A petition for a
stalking no contact order may be filed when relief is not
available to the petitioner under the Illinois Domestic
Violence Act of 1986:
        (1) by any person who is a victim of stalking; or
        (2) by a person on behalf of a minor child or an adult
    who is a victim of stalking but, because of age,
    disability, health, or inaccessibility, cannot file the
    petition; .
        (3) by an authorized agent of a workplace;
        (4) by an authorized agent of a place of worship; or
        (5) by an authorized agent of a school.
(Source: P.A. 96-246, eff. 1-1-10.)

These new changes to the Illinois stalking law give good new tools to combat stalkers and cyberstalkers.  The criminal portion of the Illinois Stalking and Cyberstalking laws are already quite protective.

Illinois Talent Agencies


Illinois Talent Agencies 
by Susan Basko, esq.

The Illinois Talent Agency law is a bit peculiar, in that it is a subsection of the Illinois Employment Agency law.  In Illinois, a Talent Agency is first considered an employment agency, and secondly is considered a talent agency.  Therefore, talent agencies in Illinois are required to take submissions or applications from anyone and everyone, just as an employment agency is required to do.  The agencies are not required to respond, however, unless they are interested in possibly representing the talent.

You can find the Illinois Talent Agency law mixed in with the employment agency law at this link: TALENT AGENCY LAW.  The talent gencies are required to be licensed and insured.  Each agent, which the law calls "employement counselor," is also required to be licensed.  An agency can only charge a registration fee with permission from the Illinois Department of Labor, and the fee cannot exceed $4. (four dollars) .  The law calls talent agencies "theatrical employment agencies."  These are the most pertinent parts of the law:

"Theatrical employment agency" means the business of conducting an agency, bureau, office or any other place for the purpose of procuring or offering, promising or attempting to provide engagements for persons who want employment in the following occupations: circus, vaudeville, theatrical and other entertainment, exhibitions, or performances, or of giving information as to where such engagements may be procured or provided, whether such business is conducted in a building, on the street, or elsewhere. 

    "Theatrical engagement" means any engagement or employment of a person as an actor, performer, or entertainer, in a circus, vaudeville, theatrical or any other entertainment, exhibition, or performance. 

  (225 ILCS 515/8) (from Ch. 111, par. 908) 
    Sec. 8. Any such licensee conducting a theatrical employment agency, before making a theatrical engagement, except an emergency engagement, for an employee with any employer, for services in any such engagement, shall prepare and file in such agency a written statement signed and verified by the employment agent of such licensee, setting forth how long said employer has been engaged in the theatrical business. Every such statement shall be kept for the period of one year and shall set forth whether or not such employer, while financially interested in a theatrical business, has failed to pay salaries, or "left stranded" any company, group or employee during the two years preceding the date of application; and further, shall set forth the names of at least two persons as references. If such employer is a corporation, such statement shall set forth the names of the officers and directors thereof, the length of time such corporation, or any of its officers have been engaged in the theatrical business, and the amount of the paid up capital stock. If the employer conducts a cabaret or night-club, the agent shall include in such statement the name and address of the owner or owners, and whether they have failed to pay salaries to employees within the past two years. If any allegation in such written verified statement is made upon information or belief, the person verifying this statement shall set forth the sources of his information or belief. Such statement so on file shall be kept for the benefit of any employees whose services are sought by any such employers. 


    Every such licensee conducting a theatrical employment agency who shall procure for or offer to an applicant a theatrical engagement, or any kind of employment as an entertainer, shall have executed in triplicate a contract containing the name and address of the applicant, the name and address of the employer and that of the employment agency acting for such employer, in employing or furnishing such applicant for employment, the character of the entertainment to be given, or services to be rendered, the number of performances to be given per day or per week, by whom the transportation, if any, is to be paid, and if it is to be paid by the applicant either the cost of the transportation between the places where said entertainment or services are to be given or rendered, or the average cost of such transportation. Said contract shall state from whom said applicant is to receive his or her salary, the amount of salary promised and the gross commissions or fees are to be paid by said applicant and to whom such gross commissions or fees to be paid. The original contract shall be given to the applicant for employment, the duplicate contract shall be given to the employer and the triplicate contract shall be kept on file in the office of the agency for a period of one year. 
(Source: Laws 1951, p. 1929.)


The Illinois Department of Labor now provides this page with many links that are helpful regarding employment agencies and talent agencies: https://www2.illinois.gov/idol/Laws-Rules/FLS/Pages/Private-Employment-Agencies-Act.aspx

The Illinois Department of Labor lists licensed employment agencies, and mixes the talent agencies among them.  Below are the agencies that were licensed as of the end of 2018.  This is not very useful to those seeking a talent agent in Illinois, but it is at least better than the total non-listing that was the case until recently.   In the list below, scattered among the employment agencies, cleaning agencies, home health care agencies, etc., you will find Talent Agencies, modeling agencies, etc.  Illinois is not very helpful to actors and models, and desperately needs an updated, modern law and a new way of listing these agencies, as well as proactive monitoring of talent and model agencies.



Flossin', the Backpack Kid, Fortnite, Lawsuits, and Copyright Law


  Flossin', the Backpack Kid, Fortnite, Lawsuits, and Copyright Law
by Susan Basko, esq.

The Backpack Kid, Russell Horning, is suing owners of two video games -- Fortnite and NBA 2K -- for using his Floss dance without his permission and without paying him.  

However, to sue someone, there must be a legally-acceptable basis for the lawsuit.  In this instance, there are two possible legal theories for a lawsuit, but neither one meets the legal requirements.

The first possible legal basis for a lawsuit would be Copyright on the Choreography.  However, Copyright law only protects Choreography that is meant to be performed by skilled, professional dancers, and where the choreographer has preserved the dance with notations or video to be used by professional dancers to create their performance.  Copyright law, at this time, does not protect a simple dance movement that is a fad to be performed by anyone.

This is a cool video of the Backpack Kid judging different people trying to Floss.  As you can see, the dance is one simple move.  However, not everyone can get the hang of it.


Below, you can read the circular put out by the U.S. Copyright Office about Copyright of Choreography.  The Copyright Office only recognizes choreography that is notated or set in tangible form, meant to be performed by skilled, professional dancers.  It does not recognize short routines meant to be performed by everyday people.  Unless the U.S. Copyright Office decides to start recognizing common fad dances as having copyright, the copyright portion of this lawsuit cannot succeed. Flossing is similar to the olden days fad of doing the twist -- it is a simple movement meant for everyone to do it.

Another potential basis for a lawsuit by the Backpack Kid against the video games would be the California Right of Publicity, which protects commercial use of a person's name, voice, signature, photograph, and likeness.  However -- the video games are not using any of these things.  Rather, the games are having animated characters doing the Floss dance.

These lawsuits are likely to be an extremely expensive mistake for the Backpack Kid.  Lawsuits are very expensive and can destroy him financially.  That is a shame, because basic legal research would have shown that neither of these causes of action can succeed.

The Backpack Kid still has lots of ways he can make money by capitalizing on his newfound fame -- including personal appearances, television appearances, and by developing some trademarks based on his nickname and dance, and by creating a line of merchandise, such as shirts, posters, greeting cards, action figures, games, etc.  We wish him the best in such creative ventures! Wasting his time and money on a most likely to fail lawsuit is a shame and can destroy him not only financially, but popularity-wise, too, since people will become afraid to deal with him and his dance routine, for fear of becoming a target of a frivolous lawsuit.









Important Copyright Case before the US Supreme Court

between a rock and a hard place
Important Copyright Case before the US Supreme Court
by Susan Basko, esq.

On January 9, 2019, the U.S. Supreme Court will be hearing a case that will decide a very important question regarding Copyright.  The rule, written in US Copyright law, is that a person must register copyright on a creative, original work with the US Copyright Office before that person can file a copyright infringement lawsuit regarding that work.  However, the question is:  What does it mean to register?  Is it good enough to put in the application, deposit (copy of the item to be registered), and the fee?  Or does the law actually require the application to be accepted and registered by the US Copyright Office, a process that takes 6 months to a year?  That is the question that will be decided.

The case is called FOURTH ESTATE PUBLIC BENEFIT CORPORATION V. WALL-STREET.COM.  Fourth Estate provides content for news websites that subscribe to its service.  Wall Street was one of the subscribers to its content. Fourth Estate required its subscribers to delete all of the Fourth Estate content off its websites when canceling a subscription. Wall Street cancelled its subscription, but left the Fourth Estate content on its websites.  Fourth Estate sued for copyright infringement after filing a copyright application, but before that application had been granted or denied.

Federal courts work in circuits, so that federal appeals are valid for an entire circuit, which encompass several states.  With this question, the 10th Circuit and 11th Circuit  have decided that the copyright registration must be either granted or denied before an infringement lawsuit can be filed. The 10th Circuit is a block of western mountain and plains states - Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.  The 11th Circuit is the southeastern states of Florida, Alabama, and Georgia.

The 5th and 9th Federal Circuits have held that a Copyright registration has taken place when the application, deposit, and fee have been sent to the Copyright office.  The 5th Circuit is Texas, Louisiana, and Mississippi.  The 9th Circuit is California, Nevada, Arizona, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands.  Copyright applications can be, and usually are now, made online, so this process takes under one hour.  Thus, the people in the 5th and 9th Circuits have the advantage of at least 6 months over those in the 10th and 11th Circuits.

The question being decided by the US Supreme Court is this:

17-571 FOURTH ESTATE PUBLIC BENEFIT CORPORATION V. WALL-STREET.COM
DECISION BELOW: 856 F3d 1338

QUESTION PRESENTED:

Section 411(a) of the Copyright Act provides (with qualifications) that "no civil action for
infringement of [a] copyright in any United States work shall be instituted until preregistration
or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. §
4ll(a). The question presented is:

Whether "registration of [a] copyright claim has been made" within the meaning of§ 411
(a) when the copyright holder delivers the required application, deposit, and fee to the
Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office
acts on that application, as the Tenth Circuit and, in the decision below, the Eleventh Circuit
have held. 

WHY THIS IS IMPORTANT: With the internet, we are able to instantly publish words, pictures, videos, etc.  If our works are creative and original, and set into tangible form (such as being written, photographed, recorded, etc.), they are imbued with copyright upon their being set into tangible form.  However, the copyright law says we cannot use a lawsuit to protect the copyrights unless we first register copyright.  If we were to follow the rule that "registration" means the full six month of longer process of the Copyright Office registering or denying registration, that leaves the works without the full protection of the law for those 6 months. If we follow the rule that says filing the Copyright application, paying the fee, and depositing the material is "registering," then the works can have the full benefit of the law once the application is filed.  The key then is to be sure to file a Copyright application before filing any copyright infringement lawsuit.  Since this law is interpreted differently by the Courts in these different circuits, those who feel they need to file a copyright infringement lawsuit to protect their works may need to "forum shop" to file their lawsuit in a court in one of the circuits that requires only the filing of a copyright application and not its acceptance and registration by the Copyright office.

This gap of 6 months or more can matter a lot because the statute of limitations on Copyright infringement is only 3 years after the copyright claim "accrues".  After 3 years, the copyright holder is barred from filing a lawsuit.  If the copyright holder has to wait 6 months or more for the copyright to be registered, that cuts the window of time in which a lawsuit can be filed.  But, does the claim accrue at the time of the infringement (known as the injury rule) or does it accrue when the copyright owner finds out about it (known as the discovery rule)?  Different courts across the nation have interpreted this in different ways.  Most federal circuits use the discovery rule -- that the statute of limitations begins to run when the copyright owner knew or should have known that the copyright was being infringed.

Interestingly, it is the 10th and 11th Circuits that follow the more time-limiting "injury rule" and also require the full registration to take place.  These two limitations can severely limit the time frame in which a copyright owner in the 10th and 11th Circuits would be able to file an infringement lawsuit.  For  example, a copyright might be infringed and the copyright owner might not find out about it for a year or two  -- and then, if the work is not already registered, would in addition have to wait the 6 months or longer for the Copyright office to register the work.  That would narrow the window for filing a lawsuit to a few months or in many cases, remove the possibility altogether.

The anticipated result of this Supreme Court case will be to bring the 10th and 11th Circuits into line with the rest of the nation, so that there is a more uniform Copyright protection nationwide.  If the Supreme Court issues a decision other than bringing the 10th and 11th Circuits in line with the rest of the nation, we can foresee a lot more forum shopping on Copyright law cases stemming from within the states in those circuits.  Companies within those states may wish to incorporate a branch elsewhere and register their copyrights from a location that has more normal copyright protections.  Again, the states that are affected by the copyright unfriendly rulings in the 10th and 11th Circuits are Florida, Alabama, Georgia, Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.  The Courts in these two Circuits have essentially stripped a great deal of copyright protection from the people in those states.

OTHER TYPES OF COPYRIGHT PROTECTION:  A great deal of commerce and communication is now done on the internet.  There are several potent forms of copyright protection that exist on the internet that do not apply off the internet.  Among these are the system of having DMCA  (Digital Millennium Copyright Act) registered agents and sending DMCA takedown notices.  Other protections include the takedown systems provided on some of the internet giants, such as Amazon, Youtube, Facebook, and Twitter.

My personal experience is that the Copyright takedown systems are robust on Amazon and Facebook, and very weak and poorly run on Youtube and Twitter.  To add insult to injury, Youtube, which is owned by Google, engages in the incredibly dangerous and harassing practice of posting the name of the copyright holder who has had a video removed -- so that the infringer and his or her fans know exactly who to target and stalk and hack and harass.  There is no legally valid reason for Youtube to engage in such a dangerous practice.  This is yet another example of the practices of Youtube and Twitter both devising systems that create bizarre obstacles for those being injured by the sites' users to simply have the offending materials deleted.  Both sites seem to cater to the users who are offensive or even deranged, rather than simply following basic law and normal concepts of protecting the public from users intent on harming others.

Very few people can afford to file a Copyright lawsuit.  However, Copyright registration is in and of itself a very good protection -- because it opens the possibility and the threat that one could file a copyright infringement lawsuit.  In addition, prompt registration after creation of the work or before the work is infringed brings the added benefits of the possibility of high dollar amount statutory damages, rather than whatever damages can be proven, as well as the possibility of being awarded lawyer fees.  Copyright infringement statutory damages are set very high -- about $150,000 per item infringed -- and this can be had even if the actual damages would be minimal, or de minimis.  The possibility of being awarded lawyer fees can sometimes entice a lawyer to take a case from a client unable to pay.  These two benefits of registering can provide a very powerful impetus to getting an infringer to stop infringing and/or to settle quickly.

Unfortunately, this very dilemna has been abused by Copyright Troll lawyers who have done such idiotic things as filing lawsuits against lots of people who downloaded a song or movie off websites that lured and invited them to do just that.  Some lawyers or their clients have even been caught baiting infringers with tagged porn movies to download -- and then be sued.  Other Copyright Troll lawyers have gone on fishing expeditions where they send out mass mailings about potential copyright infringement, to try to threaten people into settling.  Courts have hammered down on some of these Copyright Trolls, thank goodness.  Copyright is not a game and should not be used to bait and attack.

For the honest creative person who is looking to protect their creative, original work, registering Copyright promptly is a very excellent protection.

For start-up businesses looking for a place to establish -- there are reasons most of the start-ups situate themselves in the States where the courts are copyright-friendly.







Five Persistent Myths About Copyright


Five Persistent Myths About Copyright

There is a set of 5 myths about copyright that persist and seem to be spreading via the internet. Always keep in mind that Copyright has to do with the "Right to Copy."  The person who makes a creative, original work and sets it into tangible form (such as writing, drawing, recording) is (almost always) the one that owns the copyright and is the one that has the right to copy it and to decide if anyone else gets to copy it or use it.

Translation: Copyright = the Right to Copy.

 Here are some of the most common folkloric falsehoods about copyright law:

MYTH #1: If it's on the internet, it's in the public domain.  FALSE.  This is a very common idea that actually makes no sense.  Creative works enter the public domain after copyright wears out because of passage of time, which under current law, is the life of the creator plus 70 years after their death.  While there are works of art and music and writing that are on the internet that are in the public domain, such as pictures of very old paintings and old classical or folk music, anything that was created within the past 70 years cannot possibly be in the public domain.  Putting something onto the internet might be a means of "publishing" the work, as defined in copyright law, but it has nothing to do with public domain.

Translation: Just because it's on the internet does not give anyone else the right to use it.

MYTH #2: If you buy a work of art, you can do whatever you want with it.  FALSE.  No, not if it is painting, drawing, print, sculpture or still photograph that is a single piece made for exhibition or in an edition of 200 or fewer signed and numbered copies.  A 1990 law called VARA or Visual Artists Rights Act creates a sort of caretaker stewardship in any owner of such an art work, and allows the creator these rights:

  • right to claim authorship
  • right to prevent the use of one's name on any work the author did not create
  • right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
  • right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
A more famous artist can prevent the destruction of an art work they have created.  Under this law, in 2018, a court awarded $6.7 million dollars to a group of 21 graffiti artists whose works were destroyed by a building developer.  Their graffiti art was painted onto a New York City building called 5 Pointz that had been artist studios for many years.  When the developer demolished the building to build condos, he destroyed their graffiti art work, in violation of the VARA law.

Translation: If you own a work of fine art, you are its caretaker and there are laws about what you can and cannot do with the art.

MYTH #3. If you take someone else's art work and change it 10%, it becomes yours and you can claim it as your own.  FALSE.  If you take someone else's art work and make changes to it, you are creating a DERIVATIVE WORK, and you need permission from the artist/ copyright owner of the original work to do that.  Creating a derivative work without permission from the copyright owner of the work you are riffing off is copyright infringement and can cost you $150,000 in statutory damages.

Translation: Stealing art is stealing art, even if you change it a bit.

MYTH #4. If you use someone else's work but do not make any money, it's okay. FALSE.  Copying someone else's creative work is copyright violation, whether the infringer makes money or not.  When an art work is registered with the U.S. Copyright Office, the artist may get statutory damages in a copyright infringement lawsuit.  Statutory damages on copyright are very high -- about $150,000, even if the artist cannot prove damages.  This is supposed to act as a deterrent to keep people from infringing copyright.  Writing apologies or notices such as, "No copyright infringement intended," has no legal effect, though it might make the copyright owner dislike you less.

Translation:  Even if you do not make any money by using someone else's copyright registered work, you might end out owing them $150,000 in statutory damages.

MYTH #5.  It's okay to use someone else's art because:  they'll never find out, there is nothing they can do, copyright lawsuits are too expensive, I'm on the other side of the world, I got hired by a company to do this, I feel like this art should belong to everyone. FALSE.  Most artists have fans and friends who will rush to tell them if they see someone stealing their art.  Googling images also makes it easy to find stolen art and counterfeits.  Copyright lawsuits are very expensive, but there is a whole array of other remedies that cost nothing other than time, including having your products removed off Amazon and Etsy and other sites, having your pictures removed off Facebook and imgur, having your products removed out of physical stores and markets, causing your links to go dead on Youtube product and unboxing videos, removing your products and store off printing sites.  Amazon and other sites got a lot more cautious about hosting and selling stolen art and counterfeit goods after several high profile lawsuits cost them tons of money.  If you expect Amazon to collude with you in your sale of shirts and posters adorned with counterfeit art, think again, because that jig is up.

Translation: If you're thinking of stealing art, think again.

If this has been helpful for you, feel free to drop me an email at suebaskomusic@gmail.com