Up Down Periscope! Twitter's New Logo Not Creative Enough for Copyright

Up Down Periscope!  Twitter's New Logo Not Creative Enough for Copyright

by Susan Basko, esq

Back on September 9, 2016, Twitter applied for a trademark registration on the logo shown above, for use on its Periscope service.  The Trademark Examiner at the U.S. Patent and Trademark Office (USPTO) did a good deal of thoughtful work to change the wording and category of service to make it fit the international trademark being sought.  On October 3, 2017, the trademark received a certification for the following uses: 

Providing online entertainment and real time news information, namely, providing news, information and commentary in the fields of entertainment, sports, fashion, education, recreation, training, blogging, celebrity, culture, namely, entertainment, sports and popular culture, and current events via the internet and other communications networks; current event news reporting services; entertainment services, namely, providing audio and audiovisual programs featuring entertainment, namely, news, information and commentary in the field of entertainment, and real time news content delivered by streaming via the internet and other communications networks.

The Design Search Codes used to search the database for possible conflicting designs were:

DESIGN SEARCH CODES:
01.11.02 - Moons, crescent
01.11.02 - Moons, half
01.11.02 - Partial moons, including half moons and crescent moons (not a moon with craters)
01.15.08 - Raindrop (a single drop)
01.15.08 - Single drop (rain, tear, etc.)
01.15.08 - Teardrop (a single drop)
26.01.21 - Circles that are totally or partially shaded.

Trademark protects a mark, which designates the source of a good or service. A trademark might be a word, a design, or even a sound. In this instance, Twitter registered a service trademark on both the word, "Periscope," and on the logo shown above.

Twitter also applied to register a Copyright on the logo, but the U.S. Copyright Office refused to register the design, saying it was not creative enough. Twitter asked for a reconsideration and was denied again. Twitter asked for a second reconsideration and was denied yet again.

Copyright law states that works of visual art made of standard geometric shapes cannot be registered. That includes such shapes as circles, squares, ovals, parallelograms, cylinders, and all other common geometric shapes. Copyright law also precludes other stock elements such as letters, numbers, punctuation marks, the marks on a keyboard, smiley faces, etc. However, arrangements of those elements that are sufficiently creative can have copyright. In denying a copyright for the Periscope logo, the Copyright Office stated that it “does not contain a sufficient amount of original and creative graphic or artistic authorship to support a copyright registration.” The third refusal letter explains, "that there are no elements or features in the design, alone or combined, that are eligible for copyright protection."

The Copyright Board concluded that the logo was the same as a vector point on a map, with slight variation.  "Hence, the Board finds that the selection and combination of the Work’s design elements are not sufficient to render the Work original, because the Work is a mere variation of a standard map pointer vector."

The refusal letter continues, "Further, to the extent that the removal of a small portion of the red circle by placement of a white semi-circle causes the interior of the Work to represent an eyeball, the depiction is simplistic and does not exhibit sufficient creativity to render the Work copyrightable. Rather, the evocation of an eyeball in the Work does not amount to materially more than the layering of one uncopyrightable geometric shape upon another. See Feist, 499 U.S. at 359 (“There remains a narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”). Therefore, this basic and elemental rendering of an eyeball does not generate the necessary creative expression. Relatedly, the decision to center common and familiar shapes within a standard industry design does not exhibit the creativity to support a registration."  (The full refusal letter is shown below.)

Okay, so Twitter no doubt paid a small fortune for some designer to create this logo, it managed to pass muster at the USPTO, and the Copyright Office slammed it by relegating it to the “narrow category of Works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”

But aren't logos supposed to be simple but memorable?  This and other Copyright refusals on logos leaves me thinking there should be a Copyright category specifically for logos.  Trademark exists to protect logos, but Copyright has other protections.  

Years ago, I did tech work at one of the most famous art museums in the world.  As part of my work there, I attended hundreds of lectures about art, architecture, design, art conservation, etc.  The lectures about modern art works were especially enlightening for me.  There would be an incredibly simple design, or what looked like a sloppy smearing of paint.  The lecturer would explain the process and the meaning of the art work, and by the end of the lecture, I would have a much greater appreciation for the work of art.  

I think perhaps the Periscope logo fits into this same category of modern art.  I see it as simple, but elegant.  Maybe the Copyright Board lacks appreciation for modern art and design.  Have the people at the Copyright Board making these decisions had any formal training in art and design, or have they simply been educated in Copyright law and precedent?  Under the logic of their decision, a gaudy busy design, which could be considered very poor by logo design standards, would most likely be considered worthy of copyright protection.  

Copyright law does not allow several things to be considered in whether to grant Copyright on a work of art.  The amount of time, work, effort, and money it took to create the work cannot be considered.  The underlying meaning or connotation cannot be considered.  That rules out all those meanings explained by art appreciation lecturers.  To an art lecturer, the eyeball shape in the Periscope logo might represent the individual's view of the world around him or her, but at the Copyright Office, it is an eyeball shape, stock, and not protectible by Copyright.  

This might seem like a simple matter, but quite a few other logos have been denied Copyright, even if they have been given a Trademark certificate, which is no small feat in itself.  There is a bit of a logo crisis.

What protections does Copyright offer a logo that cannot be had by Trademark?  Try to think up examples.  The abuses that people can think up seem far-fetched, until they happen.  For example, someone could probably take the Periscope logo design shown above and print it on notebooks, clothing, umbrellas, or toys.  The Trademark only protects the logo in its use to designate the source of those online services in the description.  The logo in itself is not a protected design, does not have Copyright. 

I propose that the Copyright office and/or Copyright law create a new category of two dimensional visual art work specifically for logos.  Logos should be simple.  Logos should be memorable, and thus, should relate to images already known.  Logos will often consist of an arrangement of other elements that in themselves, cannot have copyright, such as letters and shapes.  I propose that a logo department of the Copyright office would be staffed by people who are trained in art and design, as well as trained in Copyright law.  They would be trained to understand and appreciate simplicity of design.

Copyright Refusal Letter fo... by Sue Basko on Scribd

Trademark office hammers down on fake uses!

Gas station and general store shack in the Wild West

 Trademark Office hammers down on fake uses!

by Susan Basko, esq.

see also: Legal Checklist for Apps, Websites, SaaS

The U.S. Trademark Office has just instituted two new procedures that are meant to weed out fake uses or non-uses of a trademark. These two changes are bound to leave a lot of people losing their trademarks.  

First up, the trademark office has instituted new procedures for detecting fake specimens.  Up till now, the U.S.Trademark Office has been like the Wild West with trademark applicants providing fake specimens -- but there is a new sheriff in town now, or at least, there are new specimen examinations procedures.  A while back, the trademark office noticed that quite a few trademark applicants were submitting specimens that appeared to be digitally created or digitally altered specimens or mock-ups.  Specimens are supposed to be pictures of the real goods with the trademark on them or on the tags, etc.  The goods are supposed to actually exist, and some applicants were faking that or were submitting fake specimens because they thought they looked better or something.  

For example, let's say a person wants a trademark on a certain saying or logo for use on t-shirts.  The person might go to a website that prints anything on anything, such as t-shirts, mugs, etc., and create a digital picture of their saying or logo on a t-shirt, mug, etc.  If that picture is submitted as a specimen, it is a a digitally-created specimen, a fake, and cannot be accepted.  

Mock-ups are also unacceptable specimens.  That's when you create a picture that shows what something would look like if it was ever made.  That is not good enough for the Trademark Office!  To get a trademark, the goods must actually exist and you must actually be selling the goods in commerce, for real.  

What's the problem here?  Many one-off printers have sprung up online. These companies print anything on any of a whole line of products.  They don't print the item until someone orders it.  What this means is that if a trademark applicant wants a trademark for each of those items, the applicant is going to have to get printed up and made at least one of each thing on which they plan to get a trademark.  You want to get a trademark for your logo on t-shirts, hoodies, and hats?  You cannot submit digitally-created pictures of your logo on a t-shirt, hoodie, and hat.  Instead, you have to have at least one of each of those printed and sent to you, take a picture of them, and submit those pictures as your specimens.  

This is a situation created by trademark law not keeping up with real life.  There are many such examples of this lag time between the trademark rules and practices and the way things are done now.  With an online one-off printer, the items really are for sale.  Anyone can order any of the items, and the companies print them up and fulfill the order by shipping them to the buyer.  There is nothing fake or unreal about this.  But the trademark office exists in the olden days, when, in order to sell a t-shirt with a particular logo on it, you had to first have a batch of those printed up, have them in stock, and then sell them.  

The only way to deal with this issue is by having at least one of each item you hope to get trademarked, take pictures, and use those pictures as your specimens.  If you try to use digitally-created specimens, your trademark application will be denied.

The booklet below, published by the U.S. Trademark Office, explains the procedures the examiners will use to weed out fake specimens. They plan to use such top secret tricks, such as searching images in Google.

The second big thing being implemented by the Trademark Office is the Post Registration Proof of Use Audit Program. This is a program where some people who have been granted trademark registration are going to have to prove that they are actually using the trademark in commerce on all the categories of goods or services for which the mark is registered.  

For example, some people or companies will register a trademark on many categories of goods or services, but are not really offering for purchase at least several of those goods or services.  Let's say a trademark owner registered a trademark for women's clothing, hats, wallets, bedsheets, linens, perfume, shoes, stationery, and dishes.  Maybe they are only actually using the trademark in commerce on clothing and perfume.  The audit will show that the other categories are not in use, and then those trademark categories can be cancelled, so the trademark is freed up so someone else can use it.  

Always keep in mind, the main rule about trademark is that you must be using a trademark in order to have a trademark.  Using it is everything.

I'll be attending a seminar run by the Trademark office that will tell about the audit process.  After that, I'll let you all know more about it.

This is the booklet that tells trademark examiners how to detect a digitally created specimen, a digitally altered specimen, and a mock-up.  If you would like to see the booklet full-screen size, click in the lower right-hand corner of the booklet on the "full screen" icon, which is four arrows pointing out.

Trademark Specimens Must Be... by Sue Basko on Scribd

Intellectual Property Basics in 5 minutes

Intellectual Property Basics in 5 Minutes

by Susan Basko, esq.

Intellectual property is the name for creations of the mind that are owned by a person or company.  There are four kinds of intellectual property -  PATENTS, COPYRIGHTS, TRADEMARKS, AND TRADE SECRETS. 

1. PATENTS.  Patents are government certifications and protections given to INVENTIONS.  Inventions can be physical mechanical items that do things, such as machines or gadgets.  Inventions can also be computer programs or code that do things.  Process patents or Method patents are about a method of doing something.  Patents are difficult and expensive to get.  Applying for a patent can take years. If you do not register a patent on your invention, you have no protection.  Whoever registers a patent first, gets the patent.  Some patents are based on prior art, which means the invention relies on and uses one or more earlier inventions.  Patents can be extremely valuable and can be sold or licensed.  A patent lasts 20 years from the date of filing, design patents last 14 years.  After 20 years, the patent enters the public domain.  This is why things such as patented medicine or gadgets become much cheaper to buy after 20 years.

The US Patent Office runs a patent assistance center, which you can read about here: https://www.uspto.gov/learning-and-resources/support-centers/inventors-assistance-center-iac

Helpful hints:

PATENTS = INVENTIONS.

1. Never send your idea or invention to a company or person unless you have a signed contract that says they will not disclose your idea and will not compete with or steal your idea.

2. If you sign a Work for Hire contract to develop an invention, you will lose ownership over your invention and will not own the patent.

3. BEFORE you sell your invention or patent to anyone, you should have a contract and have it read by a lawyer.

4. If you sell or display the things you have invented, and have not applied for a patent, anyone can steal your invention.  If you apply for a patent, but have not yet received the patent, you can write "Patent Pending" and give the application number.

5. If you get a patent, don't sit on it, because it is only protected for 20 years. 

2. COPYRIGHTS.  Copyright protects creative, original works that have been set into tangible form.  Tangible form means it has been written, a photo has been taken, a drawing has been made, a song has been recorded (live performance does not get a copyright), etc.  Copyright does not protect ideas or things that have only been talked about.  Copyright is for things like photos, visual art, creative writings, sound recordings, etc.  The way to get the protections of the Copyright law is by registering copyright with the US Copyright office.  Registering copyright is easy and inexpensive.  Unlike patent and trademark, a copyright registration is not a certification that any part of your work has elements that have copyright.  For example, things that are stock elements cannot have copyright.   If you want to file a lawsuit based on copyright infringement, you must have a completed copyright registration.  Copyright registration takes about 6 months to a year.   If you register copyright in a timely way after creation or before the copyright is infringed, you may be eligible for statutory damages and/or attorney fees.  Registering copyright brings great protections and is so affordable.  Most copyright applications are done online at the US Copyright website and the items to be registered are uploaded as digital files.   For example, if you are registering photographs, you upload jpeg files, and if you are registering writing, you will upload one of the acceptable types of word files. For example, the Copyright office accepts certain screenwriting file formats, if you want to register copyright on a screenplay you have written. 

Copyrights last for the life of the author plus 70 years.  There are other past rules about how long a copyright lasts, but this is the basic rule for things created since 1978. Copyrights are extremely valuable because they protect the right to copy a creative work.  Owning copyrights on desirable creative works can support the author or creator for their lifetime, and then support their family for 70 years after that.  

Copyrights can be difficult and expensive to protect. Many people stop infringing on a copyright just by being told they are infringing and being asked to stop.  If you need to file a lawsuit to stop someone from infringing, there is a 3 year statute of limitations -- a time limit.  The copyright must be fully registered before any such lawsuit can be filed, and keep in mind, the registration usually takes at least months.

Helpful hints: 

COPYRIGHTS  ARE FOR CREATIVE ORIGINAL WORKS IN TANGIBLE FORM. 

COPYRIGHTS PROTECT THE RIGHT TO COPY. 

COPYRIGHT - RIGHT TO COPY. 

1. Register copyright on any creative works you plan to sell, display, or license. Group registrations are available on multiple units of the same type of work by the same author with the same copyright owner -- such as multiple photographs, song lyrics, short stories, etc.

2. iF YOU sign a contract to make something as a Work for Hire, you are giving up the copyright and will not own any rights over the work.

3. Before you sign over any copyrights to anyone, have a lawyer advise you.

3. TRADEMARKS. Trademarks are words or marks (such as logos, symbols, etc) that are used to denote the source of a specific good or service.  Trademark law and rules are extremely complex.  A trademark is difficult and somewhat expensive to get and keep.  A trademark is an extremely valuable and useful asset.  You have to use a trademark to keep it.  Trademark is registered with the US Trademark Office using an online application.  The application process usually takes about a year to two years, and can be very complex.  Most trademark applications fail or are abandoned during the application process.  One a trademark registration is granted, it must be renewed after 5 years, and then again after 10 years.  Then the trademark can become permanently yours, as long as you keep using it and keep others from using it.  It can be time consuming and expensive to protect a trademark.

Helpful hints:

TRADEMARK = A MARK THAT DENOTES A GOOD OR SERVICE

1. Do not use an online service or a do-it-yourself to file a trademark registration. Have a lawyer first advise you on the likelihood of success on a trademark registration, and then, if the likelihood seems good, have the lawyer apply to register the trademark.

2. Trademark law is very complex.  The situation is set up so that if another person or company objects to your trademark application, this can result in a challenge at the trademark office or a lawsuit.  This makes it crucial to know the likelihood of success beforehand and know what you could be getting into.

3. A registered trademark can be an extremely valuable asset and can be used as loan collateral.

4. TRADE SECRETS.  Trade secrets are, by far, the biggest form of intellectual property and the most valuable.  Trade secrets are what make a company work.  Trade secrets are the information, data, processes, customer lists, etc. Your business or company must keep its trade secrets a secret by keeping these items out of the reach of and away from the eyes of anyone that could steal them.  The standard is that trade secrets are literally to be kept under lock and key.  Employees and partners should have a nondisclosure agreement and/or a handbook, but even without that, they owe a duty of loyalty and nondisclosure.  Theft of trade secrets can be a crime.  If you have a business, you should read up on how to protect your trade secrets.  

Helpful hints:

TRADE SECRETS MUST BE KEPT SECRET. 

There ya have it -- INTELLECTUAL PROPERTY in under 5 minutes. 

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.

R Kelly Studio Building Per... by on Scribd

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.

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.

Illinois Talent Agencies - ... by on Scribd

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.

Choreography Copyright Guid... by on Scribd