Lawyer for Creative People and Tech Businesses - Trademark, Copyright, Contracts, More

Susan Basko is a lawyer working with creative people and tech businesses to help them make their dreams come true.  She helps those working in music, film, video, writing, art, design, clothing design, jewelry, stage plays, musical stage plays, festivals and events, drones, independent journalism, bakery, and those starting online and offline businesses, websites, apps, SaaS, PaaS, social media, and much more.

This work includes Trademarks, Copyright, Contracts, Terms of Service and Use; Name/ image/ likeness advising, Events and permits, and more.

Susan is a licensed lawyer on the State Bars of California and Illinois and an Attorney and Counselor on the Bar of the United States Supreme Court.  

Susan has a Juris Doctorate magna cum laude from Simmons Law School at Southern Illinois University, as well as a Bachelor of Arts in Film and Video from Columbia College Chicago.  She also studied in the Master of Arts program in Mass Communication Media Arts Management at Southern Illinois University, including work in digital media, investigative journalism, and historic research.

Susan has a special interest in Free Speech and the Right to Peacefully Assemble, which in the U.S. is encapsulated in the First Amendment of the U.S. Constitution. Susan was invited to participate in a gathering of over 70 nations in the OSCE-ODIHR, Organization for Security and Cooperation in Europe, Office of Democratic Institutions and Human Rights at the Hofburg in Vienna, Austria, which put forth legislative goals to the member nations to secure freedom of assembly rights under law. 

in 2017, Susan was sworn in as an Attorney and Counselor of the Bar of the U.S. Supreme Court by Justice Roberts in front of the full Supreme Court.  A reception afterwards in the Supreme Court building was attended by the now late Justice Ruth Bader Ginsburg, who encouraged Susan and the other newly-admitted members to use their law licenses to do good.  Susan takes this mandate very seriously.  In practicing law, she works to help others make the most of their gifts and talents to make the world a better place.  

Contact via email at: suebasko@gmail.com

Photo Credits:

Hollywood sign, Griffith Park, Los Angeles, California: Photo by Gabe on Unsplash

Chicago, Cloud Gate Sculpture, aka The Bean, in Millennium Park: Photo by Christopher Alvarenga on Unsplash

 

Trademark Law

 

Trademarks are words or images, or sometimes colors or sounds or designs that are used to show the source of goods or services in commerce.  Trademarks can be registered with the U.S. Trademark Office.  

Susan loves to register trademarks, which is also called trademark prosecution.  The process of registering a trademark takes a full year or more.  The process begins with choosing a good trademark that is likely to succeed at registration.  A good, strong trademark is a valuable asset for your company.  

The trademark must be used to help sell goods or services.  The goods and services are divided into Classes.  Each class has hundreds or thousands of accepted Listings.  The Listings specifically name what is being offered.  

Trademark registration is very complicated!  It is not a do-it-yourself activity.  There are many rules.  Among many other rules, a trademark cannot be "merely descriptive" of the goods or services, nor can it be misdescriptive.   A trademark cannot be accurately geographic or misleadingly inaccurate geographically.  It cannot be the title of a single work as a goods.  It cannot be "primarily a surname."  It cannot conflict with an existing trademark and it cannot confuse the potential buyers.  And on and on.  The strongest trademarks are said to be those that are fanciful created words.

Susan loves working on trademarks.  She handles each one with great care.

Registering a trademark is a significant expenditure of money and time.  The filing fees and other fees can add up.  Susan knows how to keep fees as low as possible by planning the registration process to keep it as efficient as possible.  The lawyer's fees are also significant, but in keeping with the specialized knowledge that is required to successfully prosecute a trademark.

Every business today needs three basic things --- a website, email, and at least one registered trademark. 

top of page: Photo by Bob Osias on Unsplash

Copyright Law

 Copyright protects creative works that are set in tangible form.  Copyright law comes from the U.S. Constitution, Article I, Section 8, Clause 8.

Copyright is the right to copy.  The owner of the copyright is the one that has the right to copy, as well as many other rights, such as the right of attribution.  That means you have the right to be given name credit on the works you have created.

Copyright protects works such as writing, art, design, photos, movies, screenplays and stage plays, songwriting and sound recordings, computer software, and other creative works.  These works must be "set in tangible form," meaning, they must be written or recorded or set on paper, etc.  

Today, we register copyrights with the Electronic Copyright Office, ECo.  

Copyright registration is an excellent "bang for the buck."  Copyright registration has a filing fee of about $60.  Some types of groups of works can go in on one application.  Copyright protection generally lasts for the lifetime of the creator plus 70 years. That way, the person who created the work can benefit from it for their lifetime, and after they are gone, their children and grandchildren can also benefit from it.

There are some things that do not have copyright, such as letters and numbers and standard type characters, and fonts.  Arrangements of these might have copyright.  Also, works created by Artificial intelligence do not generally have copyright.  

It takes several months to get a completed copyright registration.  There are advantages to registering a copyright, including the availability of statutory damages and attorney fees.

Intertwined with Copyright law are other laws, such as the Visual Artists Rights Act, known as VARA, which protects certain kinds of visual arts.  Artist Moral rights are part of VARA.  These give a certain amount of sanctity to the art works by providing protections for the creations.

The Digital Millennium Copyright Act (DMCA) provides some protections for digital creative works online.  In many instances, the DMCA has been twisted to make it easier to use and abuse copyrighted works online.

Section 1202 of the DMCA of 1998 protects Copyright Management Information (CMI), and makes it illegal to intentionally remove, alter, or distribute works with altered CMI such as the title of the work, name of the author/ creator, name of copyright owner, terms of use, which can be on the surface of the art work of embedded in metadata or watermarks.  This is meant to deter people or companies from removing or changing the CMI in order to engage in Copyright infringment.  This law provides very generous statutory damages per violation.  There can be criminal penalities up to $500,000 and 5 years in prison for a first offense.  

Copyright can be a potent tool.  But to make use of most of the tools, the Copyright must be registered with the US Copyright Office.

Top of page:    Photo by Hal Gatewood on Unsplash

Contracts for Creative Activities

Contracts are private written agreements between two parties. Susan writes, reads, and negotiates contracts involved in creative works, such as movies, screenplays, art commissions, song rights, writing agreements, and much more.

Some contracts are subject to Guild Agreements, such as standard contracts approved by the Screen Actors Guild, Writers Guild, Directors Guild, etc. 

Licensed Talent Agents in California and Illinois must have their contracts approved by or meeting the requirements of the State Labor bureau.  

Many contracts are rather hidden.  For example, when you sign up to use a service online, you might click something that is considered a contract.  It is so important to know what you are agreeing to before you agree to it.  Often it is considered that if you use a service, you are agreeing to the contract.

A contract for a website, social media, or online service is often called the Terms of Service (TOS) or Terms of Service and Use (TOSU).  Susan writes these.  She works hard to make these easy to understand. She writes them in clear, plain language.  It can be more difficult to write something simply than it would be to load it down with complex wording.

The contract is the written pathway to what will happen in a creative project.

Susan has written Terms of Service.  She has also written contracts that give a writer or producer the Life Story Rights of a person who is interesting.  She has also written Option Contracts that give a producer the right to buy the Film Rights on a story for an agreed-upon amount of time.

All these contracts should be written so they can be clearly understood by the parties.  That's a fine art and not easy to accomplish. 

top of page: Photo by Markus Winkler on Unsplash

Terms of Service and Use for your Website or App

Terms of Service and Use (TOSU) are the contracts that explain the rules of how the Owners want their Users to make use of a website, app, social media, online service, Software as Service (SaaS) or Platform or a Service (PaaS).  

The TOSU tells who can use a online service, how they can use it, what they can and cannot do.  The TOSU tells how disputes will be handled.  The TOSU tells how Copyright ownership will be handled for things uploaded by a User and things that are provided by the online service.  

The TOSU tells what data is being collected from the Users, how it is stored, and how it will be used.  

If payments are made by or to the Users, that is explained in the TOSU.

Most TOSU start out simple when an online service is first begun and get more detailed as time goes on.  

A TOSU is best if it is written in plain, clear language so the Users know what they are agreeing to and what is expected of them.  

Sadly, many internet Users like to push the limits to the edge and beyond, and so the TOSU often has to spell out what the limits are.  

A TOSU is best if it have headings and capsule summaries or TL;Dr for those who are in a hurry.  

Most TOSU state how disputes are to be handled, so the Owners of the internet service do not get bogged down in lawsuits.  However, as internet services grow very large, it seems lawsuits become inevitable.  Google, Twitter/X, Amazon, Facebook/Meta have all been involved in gigantic class action lawsuits.  If you are building a new internet service, you want to protect yourself as much as possible with your TOSU.


Photo by Markus Winkler on Unsplash

Music Law

 

Copyright can and should be registered on Songwriting, including music and lyrics, as well as on Sound Recording.  It is a wise idea to register Copyright on every song you write or record.

Trademarks can be registered on an artist's name or stage name, as well as on a band name

Music trademarks can be registered as "services" for such things as performances, music producing, music mixing, and on things such as rentals of audio equipment.   Music streaming is also a service in trademark law.

Music trademarks can be registered as "goods" for such things such as sales of CDs and vinyl, or downloads of mp3s or other digital formats.

Taylor Swift is registering trademarks on her image and voice to help protect her Name/Image/Likeness (NIL) to try to prevent impostors and AI (Artificial Intelligence) use of her NIL to create fakes.

If you are active in creating music, you should protect the name you use when making music, which might be your real name, a stage or performer name, or a band name.

Be very careful with any contracts involving your music.  You should ALWAYS have a music lawyer (not just any lawyer -- but a lawyer who specifically deals in music contract) read and negotiate every contact involving your music.  These contracts will affect you for life and will likely affect your loved ones long after you are gone.  Copyright protects your work for your lifetime plus 70 years.  That is a long time, so be sure to do it right.

Contracts are also on every music service and website that you may use online.  These contracts are usually called the Terms of Service, Terms of Use, or sometimes called the Agreement.  It's a good idea to have a music lawyer read these for you BEFORE you sign them.  

If you register Copyright on your songs before they are published, you can register up to 10 songs as a Group Registration of Unpublished Works, (GRUW) if you are an individual or small business, if all the works are of the same type, and all the works have the same author/creator and copyright claimant.  This can save a lot of money because you pay one registration fee for all 10 songs.  However, it is much easier to find Copyright records in the database if each song is registered separately, if you can afford that.

"Published" means a song has been available for sale or licensing.  If a song is simply on the internet so your friends and potential fans can listen to it, this is not published, and you can still use the GRUW registration.

Contact:  suebaskomusic@gmail.com


Photo by Caught In Joy on Unsplash

Film and Video Law

 

Film law is about contracts of all sorts, copyright, and trademark.  

Susan has written and negotiated contracts for Life Story Rights.  That's when someone wants to make a movie about someone's life.  

She has also written Options contracts.  In film, an Option is a contract between a screenwriter and a Producer.  The Producer pays the screenwriter some money to reserve, for a set amount of time, the right to purchase their screenplay for a set amount of money.  For example, an Option might say the Producer is paying the Screenwriter $5,000 to reserve the right, for one year, to purchase the screenplay for $100,000.  At any time within that one year, the Producer can pay the screenwriter $100,000 and have the exclusive right to make a movie from the screenplay.

There are laws and rules about how a film can be financed and who can finance it.  In many cases, film financing is an SEC matter and financers must be considered qualified.  That means they must have a certain amount of fluid assets and knowledge of film financing and production.  This is because financing a film is a very risky business where people are very likely to see no return on their investment and may even lose money. 

Film contracts include contracts that are required by Guilds, such as the Screen Actors Guild, Writers Guild, or Directors Guild.  These contracts have been deemed fair by these Guilds.  The contracts have provisions for films that are made at various budgets, from ultra low budget on up to a full Hollywood high budget.  

Photo by Jakob Owens on Unsplash