Sue Basko
Lawyer for Independent Media

Sue Basko is a lawyer in California and Illinois, with a background in film, television, video, events production, journalism/media, and music.
Sue works with independent people in these and other fields:
  • Musicians
  • Computer Law
  • Internet Law
  • Issues in pornography/ obscenity
  • Rock Bands
  • Website Owners
  • Video makers
  • Journalists
  • Independent Media
  • First Amendment
  • Human Rights
  • Free Speech
  • Media Rights
  • Freedom of Assembly
  • Freedom of Association
  • International Media Rights
  • Internet rights and responsibilities
  • Internet law
  • Media Law
  • Independent Media and Journalism
  • Managers and Agents
  • Recording Studios
  • Record labels
  • Music Festivals
  • Events
  • Protests/ Public Assemblies
  •  Independent Media
  • Venues
  • Music Producers
  • Beat Makers
  • Songwriters
  • Filmmakers
  • Music Video producers/ directors
  • Photographers 
  • Writers
  • Live streamers  
  • Media Content Producers
  • Clothing designers
  • Actors
  • Directors
  • Designers

Terms of Service for Your Website

Terms of Service for Your Website
by Sue Basko

If you have a website that offers any kind of interaction or service, you need a Terms of Service (TOS) or  a Terms of Service and Use (TOSU).  The terms are interchangeable, but TOSU tends to list the responsibilities of the user in greater detail.   Here, we will call them both TOS.

The TOS forms a legally-binding contract between the site owner and the user.  It is also possible that violation of some TOS may be violations of the Computer Fraud and Abuse Act (CFAA), the Federal Criminal statute that lists computer crimes.  

Therefore, because of the incredible importance of the TOS, the TOS should be:

  1. Written by a lawyer.
  2. Written by a lawyer who knows internet law.
  3. Written by a lawyer who can write well.
  4. Written specially for your site.
  5. Written in clear language that can be easily understood by most everyone.
  6. Available on the site to be viewed by the public, before joining or paying anything.
  7. Not posted as a scroll and click.
  8. State some method of agreeing with the contract.  This is often by using the site.
  9. Posted in big enough font with plenty of spacing and appropriate numbering.
  10. Not contain extra verbiage or repetition.
  11. Be divided into pertinent sections with useful titles. 
  12. Written after the website is ready for launch, but before it is launched.
  13. Written by the lawyer after viewing and using the site and discussing with site owners.
  14. Updated frequently to address changes in the site, changes in policies or practices, or concerns that have arisen through use or abuse of the site.
  15. Every TOS is tailor-made for that site and service.
  16. Some sites may have multiple TOS to address different types of users or segments of the service provided.
  17. A TOS is never completed; it is constantly growing and changing.
  18. A TOS represents a significant, necessary, ongoing legal expense.   
  19. The TOS should be adequately budgeted for.  It is a start-up cost and an ongoing cost for the life of the site.

The TOS should address these and many other topics:

  1. Copyright ownership of any user materials.
  2. Copyright ownership and use of site materials.
  3. Allowable use of the site.
  4. Disallowed uses of the site.
  5. Dispute resolution, remedies, liquidated damages.
  6. Conduct and speech of users. 
  7. Privacy policy and compliance with privacy laws.
  8. Subpoenas and queries from legal entities and how these will be handled.
  9. Explanations of costs and payments for using the site.
  10. Explanation of what the site provides; disclaimers. 
  11. DMCA information.
  12. Contact information.

When I write a TOS:  First, I have to see the site and work with it, play around a bit and see how it is functioning.  I will have many questions. Once I think I have a good grip on what the site does and how the users will interact with it, I will write  a draft TOS.  After that is looked at, I will make needed changes.  Then, as the site is used and difficulties or abuses arise, and as any proposed changes are to be made to the site or policy, I will be informed promptly. Then, I will update the TOS to reflect this added knowledge or the changes.  Maintaining a good TOS is an ongoing process that spans the life of the site.   

Trademark Registration:
Have a Real Lawyer Do It

Trademark Registration: Have a Real Lawyer Do It
by Sue Basko

 Once you get a registered trademark, it is like gold.  Many businesses have  been  built upon trademark.  Many businesses also use their registered trademarks as loan collateral.  

For example, Facebook owns trademarks on "facebook," the "like" button, "face," on that certain shade of blue in conjunction with those words, and many more.

If you are starting an online business or website business, a rock band, a design business, a clothing line, a record label, or other such creative business,  I strongly recommend that you work on getting one or more registered trademarks that signify your business.  

If you want to register trademark on the name of your company or product or service, have a real lawyer do it.  DO NOT use one of those online fake "legal service" websites.  Here's why:

Trademark registration is a year-long process.  Filling out the application merely begins the process. If you use one of those non-lawyer "services," who is going to do the rest of the work for you?

The trademark application is crucial and must be filled out correctly for it to work.  The applications I have seen through the online services have been done incorrectly. That means the trademark registrations will fail or will cost a great deal in time and money to fix up.

The main service I have seen is called LegalZoom.  This is a website that auto-generates a trademark application.   This is not a lawyer.  It is highly unlikely your application will be done correctly this way, and you will still have a year of work left to do. This service has slipped through because a California law allows "document preparers."  Since this is on the internet, it is operating in any state -- and I have strong doubts that this is legal in all those states.  Even in California, I think such sites perform a grave disservice for the users.

In a trademark application, you do not need an auto-generated application, you need a lawyer who listens and understands what you are trying to do, understand trademark law, and is there for you for the entire process.  The process involves numerous contacts with the trademark examiner, and often writing replies to the examiner's objections, filing additional papers and information and specimens, making informed decisions and changes, and possibly defending the trademark application against challenges.  
Having a real knowledgeable lawyer do your trademark application is more expensive, but of course it should be. The lawyer will be doing the full job, the full year or more of work  that is actually involved.  

 I charge starting at about $1500 and up for a trademark registration.  What does this include?  First, a good evaluation to see if it is likely the trademark can be successfully registered.  This is the key to the whole process.  If the trademark registration is not likely to succeed, I can help choose other names that are more likely to work.  Second, I work with you to gather the needed information and materials for the application.  Third, I file the application.  Then we wait a few months for the file to be assigned to a trademark examiner.  The examiner will have questions, objections, and all these must be addressed in writing.   Once all is clear, the trademark goes to publication.  Then, the trademark may be challenged by others, and each challenge must be addressed.

Once the trademark process is completed, you own a trademark. These are very valuable and can form the basis for a business.  Loans are given with trademarks as collateral. Trademarks can be sold and assigned.  They are a highly valuable asset and one that most successful companies strive to own.

Working with a Creative Lawyer

Working with a Creative Lawyer
by Sue Basko 

Most people think of a lawyer as someone they go to when there is trouble: a DUI, injury, or lawsuit.  A lawyer for creative people is just the opposite: you come to us when things are going well, when you are doing creative and good things in your life.

I’m a lawyer for creative  people.  That means I work with people who make music, make films and videos, people who write stories and screenplays, independent journalists,  people who run websites, people designing apps or games.  I work with designers, artists, songwriters, record labels, show hosts, live show and festival producers.    

Many people only go to a lawyer when there’s trouble: a DUI, a lawsuit, an injury, they need a will.  For a DUI or other crime, you’d see a criminal defense lawyer.  If you are injured, you’d go to a personal injury (PI) lawyer.  If you need to make a will or trust, you go to a Trusts and Estates lawyer.  There are many other areas of law in which lawyers tend to concentrate their practices, such as Employment law/ ERISA, Corporate law, Tax law, Patent law, Medical malpractice law, Environmental law, Health law, and on.

People come to a lawyer for creative people when things in their lives are gelling, when they are doing what they love.  If a person plans to turn their creative activity into a moneymaking venture, or if they want to protect their creative assets, then it is time to see a creative lawyer.

Creativity + sound legal advice in a timely way =  Productive Creative Career

My areas of law and experience include these and more:

Audio/ Sound design
Computer Fraud and Abuse Act (CFAA)
Computer law
Email law
Film law
Intellectual property
Internet activism
Journalism law
Media law
Music law
Music rights and royalties
Music videos
Phone apps
Pornography/ Indecency/ Obscenity
Radio and TV shows
Record labels
Secret Subpoenas
Show producers  
Social Media law
Software as a Service
Subpoenas/ Warrants on social media/ isps
Terms of Service
Website law
Website ownership

How to Work with a Creative Lawyer:

1) Get Acquainted.  You and the lawyer have to get to know each other a bit to see if you want to work together.  I select clients usually over a course of emailing back and forth.  I only work with people where I think there is a good fit between what they need and what I have to offer.  I am looking for clients who are honest and fair with others, who are very comfortable working on the computer and via internet, and who have a broad world view.  I only work with people who I think have substantial creative talent, who are able to take direction, and work well with others.  People come to me because I have skills,  knowledge, and experience in a wide range of creative fields.

2) Plan to Pay.  When you are planning your project or business, budget for legal help.  In most creative projects, legal work will be 10% to 25% of the budget. I make it very easy for clients to come to me, by not requiring credit checks or retainers.  I simply require payment in advance.  That way, my clients get the best help for the least expense, and I don’t spend my time being a bill collector.  It is extremely expensive and difficult to become a lawyer, and even moreso to develop special legal skills.  Lawyers need to be paid.    

3) If you need Free Help: If you can’t pay or are on a limited budget, you need to state this upfront, and see if the Creative lawyer is able to help you anyway.   I make a judgment call as to what the person really needs.  If a person tells me about a project where they are paying for the other services, but want free legal help, I suggest they rework that budget to be fair to me.  At any given time, I have clients I am helping for free.  These are people where I like what they are doing and where I think my skills are well-suited to what they need.

4) Don’t Misuse a Lawyer.  Some people try to use a lawyer to get an approval for a questionable or illegal thing they plan to do.  They’re trying to get a lawyer to find them a loophole or a way to do something that is unfair or illegal, and then plan to blame the lawyer when their scheme backfires.  I don’t work with such people.  If you plan to screw someone, I am not the lawyer for you.  Keep away, thanks.

5) Get to Know You: I have many questions for my clients.  I need to know who they are, what they are doing, what their goals are, etc.  Be prepared to tell me a lot of things.  Be prepared to show your records.  Then, be ready to answer more questions.  I need to know about you and what you are doing. 

6) Let Me Help You:  Please come to me with an open mind, willing to communicate.  I think of things you probably haven’t thought of.  That’s what I’m good for.  Sometimes, there may be issues that are more serious than you were thinking, or solutions that are easier than you thought.  

7) Follow Through.  If I tell you to do something, do it.  If you need a lawyer who will hold your hand and do everything for you, expect to pay a lot.  If I tell you to file a report with a certain agency or to remove something off your website, and you fail to do it, then you are making it so I cannot help you.  

8) Let Me Make a Plan for You.  I can lay out what you need now, what should be goals over the next months, and what should be long-term goals.  For example, if you have a website, maybe now you should register a trademark, and over the next month, have me write a Terms of Service.  Then we may need to get music and photo clearances,  and write contracts for you to use on a regular basis.  Then over the coming year, you will need updates on the Terms of Service, registration on some copyrights, employment contracts, and a few additional trademarks.  Legal work is a constant need. but it ebbs and flows.  

9) Don’t Wait!  Don’t wait till you have big trouble and things are falling apart.  If you are forming a company, partnership, band, record label – get legal help asap.  And if you are being asked to sign a contract, get a lawyer involved.

10) Don’t Undo my work or go around my back.  If I’ve written a contract, you don’t get to change it. If you want to change it, you need to talk to me.  If I am working on a deal, you don’t get to sabotage it by going behind my back.  If you do these things, you are what is considered a nightmare client, and you get dropped.  This is like going to a doctor for a surgery and bringing your own scalpel and doing your own little surgery while in the waiting room.  Ridiculous, right?  Lawyers don’t put up with it.  If you are a know it all, do-it-yourself-er, then do it yourself from the get-go and don’t trouble a lawyer.

11) Do lawyers kill the deal?  Some do.  I try not to.  My goal is to treat everyone fairly.  I try to honor everyone involved.  Usually when I write a contract, people are happy to sign it.  I believe in win-win situations.  I believe I am best helping my clients’ creative plans if I write contracts that lead to happy, healthy, long-lasting relationships with other valuable, honorable, talented people.  

12) Contracts I write:  I have a specific style of writing that I use in contracts.  I write contracts that are clear and easy for regular people to understand.  I also write contracts to be fair to all, and to honor all the parties.   I am starting to see contracts that I wrote being used by others, circulating, and  coming back to me, especially in Hollywood.  My "style" of contract is catching on.  I think this is great!