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
    "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:

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.