Derivative Work -"Play that Song"

 Derivative Work - "Play that Song"
by Susan Basko, esq.

Recently, a Facebook friend who is a talented pianist and composer posted this question:

"so the song "Play that Song" by the band Train.... to me, is essentially the classic "Heart and Soul"; the melody is pretty much verbatim, so... is there copyright infringement here?"

The question piqued my interest because I am a lawyer who works in music law and copyright.  Listen to the video above to hear "Play that Song," by Train.

First, I looked and found that "Heart and Soul" is an old song by Hoagy Carmichael.  Listen to that in the video below.

My friend was right -- the two song melodies are undeniably the same.  Was this copyright infringement?

Next, I looked up the names of the songwriters on each of the songs.

"Heart and Soul" is listed as being written by Hoagy Carmichael and Frank Loesser.

"Play that Song" is listed as being written by Hoagy Carmichael, Frank Loesser, William Wiik Larsen, and Pat Monahan.  See-- the new song is naming Hoagy Carmichael and Frank Loesser, the two writers from "Heart and Soul," in its list of songwriters.

And who are Pat Monahan and William Wiik Larsen? Pat Monahan is the lead singer of Train and also an accomplished songwriter.  William Wiik Larsen is a long time songwriter and producer with many professional songwriting credits.  (Please note the correct spelling is William Wiik (two i's) Larsen, not William Wilk Larsen.)

Thus, "Play that Song" has four songwriters -- two of whom are alive, and two of whom died many years ago.

 "Play that Song" is what is known as a derivative work in Copyright Law.  The melodic tune created by Hoagy Carmichael and Frank Loesser was used with permission of the owners of the copyright of the songwriting on "Heart and Soul," which would be the publisher or the estates of the men, since both Mr. Carmichael and Mr. Loesser passed away many years ago.  Both men are also listed as songwriters on "Play that Song," which means their publishers and estates will share in the songwriter royalties on the new song.  This shows a perfect example of how registering copyright on songwriting can be of benefit even long after the death of the songwriter.

A work that is creative and original and set into a tangible medium can have copyright. Copyright gives a whole list of protections and rights.  One of those rights is the right to control who gets to make a  "derivative work."  A "derivative work" is a new work that is derived from one or more existing copyrighted works.  This pdf booklet gives a lot of information on derivative works.

If you wish to create a song that is a derivative work, you should have your music lawyer contact the owners of the copyright on the songwriting that you wish to use.  First, the lawyer will look up and see who the actual songwriters are on the song.  Next, the lawyer will try to locate all the current publishers for the song. Next, the lawyer will contact the publishers and seek permission for you to create the derivative song.  If the new song qualifies as a derivative work, it will then be copyright registered naming both you and the original songwriters as the songwriters.

If a songwriter creates a derivative work song without getting permission and without naming the original songwriter, that is copyright infringement and can lead to a lawsuit.  If you are borrowing from the songs of others, you must get their permission or risk legal trouble.

NOW THINK ABOUT THIS:  When a song is very old, it no longer has copyright protection.  Then, it is in the public domain.  If you create a new version of a song in the public domain, or use parts of it, or create a remix of several such songs, or create a new arrangement, you do not need permission.  If you do create such a work, you can register your name as the songwriter or arranger, along with the original songwriter.  For example, if you create a remix of Pachelbel's Canon in D, you can list yourself as the songwriter alongside Pachelbel, as many songwriters and composers have done.

Or, if you come up with an updated version of "Fur Elise," you can list your name as songwriter along with Ludwig van Beethoven.  Check out this version of "Fur Elise" created by Josh Vietti.

May this information help you to create.  Enjoy the music.

Chicago Street Performer Law -
Proposed Changes and why they are Bad

RE:  02017-217  Changes to Street Performer law

Alderman Reilly of Chicago has proposed a major amendment to the Street Performer Law.  This amendment would make it illegal for street performers on Michigan Avenue or State Street to make any sound that can he heard at 20 feet.  This, in essence, makes all or most music illegal on these two streets, since all or most music from any instrument can be heard at 20 feet.


Please keep in mind that street performers and potential street performers are often NOT represented by any Alderman, since they may reside outside the City.  Also, many or most audience members for street performers are not represented by any Alderman as many are visitors to Chicago.

We all oppose the amendments to this law for the following reasons:

1. There has been no notice to the Street Performers and no opportunity to be heard. When selling the licenses, the City requires contact information of the licensees, including address, phone, and email.  Yet, the holders of Street Performers Licenses were not contacted by phone, mail, or email by the City about this proposed change to the law.   There was no public hearing about which they were personally notified and to which they were invited. It is absolutely illegal and outlandish that a business license would be so drastically changed as to become meaningless and no notice has been given.  This makes this process unconstitutional.

2. Street Performer Licenses are two year licenses, and so a minimum of 2 years should be the waiting period before such changes to the law can take effect. Otherwise, the licenses have been sold under false pretexts. The change to the law is to take effect immediately upon passage.  This makes the new law unconstitutional.

3. Treating those with Street Performer Licenses in this way is unconstitutional because it treats them in a way unlike the holders of other business licenses, as if they can be disregarded and maltreated.  

4. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking "20 feet" is some magical number.  Almost any sort of music can be heard at over 20 feet by a person with normal hearing.  In effect, this law makes all music illegal on Michigan Avenue and State Street.  In many spots, the sidewalk itself is 20 feet wide.  What is "20 feet" based on?

5. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking that removing music from Michigan Avenue and State Street will mean that the complainers will no longer hear music -- since the musicians will simply be able to go around the corner, for example, onto Randolph, and make the sound, which will still be heard by the complainers.

6. The law is unconstitutional because it is irrational, because if the complainers on Michigan Avenue and State Street "need" protection from music, don't the people on all the other streets also "need" to be protected from music?

7.  The law is unconstitutional because it is racist, because it will mainly or disproportionately in practice affect young Black male bucket drummers.  These young men should be encouraged to feel they are part of the City and that they are welcomed on the streets.  This is their chance to make the City their own, to feel pride in showcasing their talents.  They are greatly beloved by tourists and other visitors to the downtown areas.  Many depend on the money they make by street performing.  Under the proposed law, all this is lost.

8. The City of Chicago is already unconstitutionally barring street performers from all places in Millennium Park at all times.  This has been shown in litigation in other cities to be unconstitutional.  Barring a street performer's right to make music in a city's showcase park has been shown to be an unconstitutional violation of the First Amendment rights, not only of the Street Performer, but of the potential audience and the City dwellers.  There is a constitutional right to hear these messages as much as there is a right to give these messages.

9. Just as street performers have a constitutional right to perform in a city's showcase parks, they also have a constitutional right to perform on a city's showcase streets, including Michigan Avenue and State Street. And just as the buskers have the right to perform, the intended audience, the public, has the right to hear the messages/ music.  And restricting music that can be heard at 20 feet is essentially removing all music from the streets.

10. The City of Chicago Street Performers License Law is probably illegal in itself, in requiring licensing and payment from people to exercise their First Amendment rights on public streets.

Punch a Nazi?? 10 Reasons Why Not

Punch a Nazi?? 10 Reasons Why Not
by Susan Basko, esq.

There's a recent fad topic about Punching a Nazi.  This topic started when a man was speaking with a journalist on video livestream at a protest and another man, wearing a dark hoodie, ran up and punched the man in the face.  The internet gossip line soon identified the man who was punched, labeled him a "Nazi," and said the person who punched him did it as some form of protest against his ideas.  The words "antifa" and "diversity of tactics" got tossed around.  An alleged partial quote from the man, taken out of context and with no sourcing, was offered as validation or justification that he "deserved" to be punched.  

I am here to tell you this is all nonsensical and not to be involved with punching anyone, no matter what you think of their ideas.  

Here are 10 Reasons Why You Should Not "Punch a Nazi":

1) A protest or any public event is a delicate balance where it can easily become violent and dangerous.  If you are constructive, you want to keep any public gathering safe for all.  If you are there causing trouble, the vast majority of other participants are wise enough to not want you there.  They see you as a troublemaker and a thug, not as a noble hero or dashing masked man.  

2) We are adults.  We realize that people have viewpoints that differ from ours.  We don't run through the streets punching people for having different viewpoints.  Do you want to be punched for having your viewpoints?

3) The people or groups who are advocating violence against those who hold different opinions call themselves "antifascists."  They are so hyped up in their own nonsense that they don't see the irony of this. The people wearing masks and punching people for holding different views are actually fascists.  When they run through the streets attacking people, they instill fear and silence people.  That sort of violence + fear  + silencing =  what fascism is all about.

4) The argument of the pro-punchers is that if a person holds a view that they find repugnant, that this justifies physically attacking the person.  It is beyond my ken how anyone could have lived such an isolated, parochial life that they do not realize that everyone holds different views, and that a great many people hold views that others find repugnant or even shocking.  In a pluralistic society, people get to hold such views, but are not allowed to physically harm or attack others.  If the person you call a "Nazi" has made a direct threat to harm you immediately and is armed and ready to do so, then you get out of the way and call the police.  If you are running up to people on the street and punching them, then you are the one that is antisocial and a criminal.

5) A big part of growing up is realizing that many others do not agree with us, but that we can live and let live.  We do not need to control everyone's thoughts.  We don't get to hit them because they have ideas with which we disagree.  Even if we think their ideas are appalling or repugnant, we don't get to physically attack them.  They have the right to hold their views and to walk on the streets unassailed.

6) It is a crime to punch someone, whether or not you disagree with their ideas.  It is a crime to advocate violence, such as urging others to attack people on the street.

7) If you punch or attack a person, you are legally responsible for everything that happens to them.  If the person has a heart attack or stroke, you are legally responsible.  If the person gets a blood clot and dies, you are responsible.  In a recent non-protest street incident in Chicago, a man punched another man in the head.  The man who was punched fell into the street and was run over by a taxi and died.  The man who punched the man is possibly being charged with murder.  When you engage in a criminal attack upon another person, you are responsible for the whole chain of events that follows.  You cannot accurately predict what that chain of events might be.  Your motive in harming the person is usually considered enough motive for whatever ensues.

8) Normal civilized adults do not run around the streets punching people.  Do you know who stands on street corners attacking people they think disagree with them? The Taliban.  In the U.S., we respect the right of every person to walk on the street and not be attacked.    

9) If you start justifying or engaging in violence against people because you disagree with their ideas, it is a very short, very slippery slope to where you may allow yourself to become a full-fledged criminal, or in your eyes - a martyr.  Examples of people who have attacked others based on their beliefs include: Dylann Roof, who killed 9 Black people in a Christian Church because he thought it would start a race war; Timothy McVeigh, who exploded a federal building, killing 168 and injuring 600, because he disagreed with the actions of the ATF at an incident at Waco, Texas;  the many acts of murder, arson, kidnappings, and bombings against abortion providers engaged in by people who find abortion immoral or repugnant;  and many other such incidents.  The logic behind these incidents is the same as the logic behind "Punch a Nazi": the untrue notion that you can control the flow of ideas by attacking or terrorizing those who hold those ideas.  

10) Engaging in the "Punch a Nazi" nonsense means you are frittering away your time and energy on this negative, anti-social activity, when you could be engaged in productive, intelligent change.  Worse still, if you get arrested and tossed in jail for punching someone on the street or for advocating such violence, you will have managed to make yourself socially neutralized.  And that is just plain stupid.

Thoughts on former CIA Director John Brennan

Thoughts on former CIA Director John Brennan 
 by Susan Basko, esq.

In early January, 2017, CIA Director John Brennan, spoke at the University of Chicago Institute of Politics.  We were invited to come see him a few months earlier, but he had to cancel out at the last minute.  Finally, he was able to make his eagerly-awaited appearance, and so much had changed since the first invitation was sent out in October of 2016.   In the meantime, the expected easy win of Hillary Clinton for President did not happen. Instead, Donald Trump had been elected. Trump's inexperience and caustic rhetoric were causing uneasiness in the nation.  Thus, the entire context of the earlier anticipated Brennan talk, looking forward to his CIA Directorship under Hillary Clinton, shifted to one of memoirs of the past, with foreboding of a highly uncertain future for our nation.

The invitation to the John Brennan event noted there would be security procedures in place and "no signs" allowed. As it turned out, the audience was sedate and respectful and the questions asked by audience members were intelligent and on point.  

Overall, I was impressed by how intelligent, personable, and forthright Director Brennan was.  Please watch the video and see what you think.  Several times in the talk, he mentioned that he had "15 days left" as CIA Director.  This came about because he publicly stated that if President Elect Donald Trump planned to reinstate waterboarding torture as a CIA practice, as Trump had publicly stated, that the soon-to-be President would have to find himself a new CIA Director.  Donald Trump beat Brennan to the punch and appointed Rep. Mike Pompeo to be Director of the CIA.  However, in appearing before the Senate Select Committee on Intelligence, Pompeo said he also would refuse to bring back waterboarding as an interrogation tactic.  Donald Trump never explained why he would want to bring back torture as an interrogation technique in violation of international law.

In the days following this talk, John Brennan became outspoken in his public objections to Donald Trump's relations with the Russian government and to Trump's provocative, reckless manner of speaking about topics of great importance to national security.

My overall thoughts about John Brennan, which I admit came as a bit of a surprise, is that he seems highly intelligent, forthright, very experienced in government and international relations, and a really decent person.  If he decided to run for some public office in the future, he seems to have the makings of a good candidate. Please, watch the video and see what you think.

Still Being Cyberstalked - Smear Campaign Ongoing

 Still Being Cyberstalked - Smear Campaign Ongoing

Dear Folks,

Today I have decided to finally address a bit of cyberstalking that I have been dealing with for a few years.  A mentally deranged stalker person(s) has repeatedly posted some lies about me that are supposed to harm my reputation or scare me.  After ignoring this nonsense for several years, I have decided to address it.

The crazed stalker person keeps posting something that is supposed to be an "invoice" from me to a young man for whom I did a small amount of volunteer legal work several years ago.  There is no such invoice.  I have never actually seen what it is that is being passed around, but whatever it is, it is not an invoice.  Aside from which, if I do issue an invoice, that is a private matter between myself and my client, and such a thing would not ever be posted openly on the internet.  Any invoice would be a strictly private matter between me and a client and would not ever be anyone else's business. And, in any case, when I do volunteer work, I would not issue an invoice.

I help many people for free, because I believe in giving back to the community.  Providing a significant number of hours of pro bono service is also a requirement of lawyers in one of the states in which I am licensed.  "Pro bono" is a Latin phrase that means "for good," and I take this call to social justice very seriously. I was raised very strongly with the value of volunteerism and feel it is an integral part of life to help others and give back to the community. I am delighted that I was able to get my law licenses later in life and feel it is a privilege and honor to be able to use my knowledge to do good things to help society.

The person who has posted this imaginary "invoice" has also wound a whole conspiracy theory about it.  According to this person's twisted conspiracy theory, I traded legal services to the young man client in exchange for some sort of "services" from him.  No such thing ever happened.  This is nonsensical lying on the part of the deranged person(s) making up and spreading this story.

This wild conspiracy theory almost makes me laugh, since I am unaware of this young man having any "skills" or "services" that would be of any use or interest to me, having never even met him.  If he were ever nearby in person, perhaps he could wash my dishes or rake my garden?  However, even then, I would never trade my legal services for any such services, just on the principle of it.  When I give legal services for free, which I do very often, there are never any strings attached.  If the person I assist says "Thanks," that warms my heart.  

 While I have barely been in view of this young man client -- I have never met him and we were not even "friends" or "followers" on any social media  -- I am aware that he was trying to build up his life and he made a lot of progress.  Words and phrases like "encourage" and "build up" mean a lot to me.

I want to say to this person who is conducting this smear campaign against me:  Get a life.  Go get mental health care. Get yourself involved in meaningful work.  Do something with your life besides creating outlandish lies about other people. Life is short and you are wasting yours.  If your lies and smear campaign are meant to harden my heart against giving help to those in need -- sorry, you have failed.  Good is always stronger than evil, and you lose out.

If anyone knows exactly who it is that is posting this fake "invoice" or who exactly it is that is telling these lies and conducting this smear campaign against me, please email me to let me know.  I can be reached at SueBaskoMusic(at)   I will then file police and FBI stalking reports against that person(s). I take such things seriously and I report these forms of cyberstalking and harassment.

Thank you.

Computer Genius Case Goes to Supreme Court

Computer Genius Case Goes to Supreme Court
by Susan Basko, esq.

The case of Eric Eoin Marques, the computer genius who invented Tormail and developed Freedom Hosting, an easy-to-use website hosting service for the Dark Web, is now before the Supreme Court of Ireland.  Mr. Marques faces extradition to the U.S., which is charging him with various crimes involved in being an internet service provider and hosting company on which some customers allegedly ran websites that trafficked in child abuse pornography.

If extradited to the U.S., Mr. Marques likely faces life in prison.  Therefore, Mr. Marques asked the Irish Courts to try him there.  He even offered to plead guilty.  The Irish Courts refused to try him in Ireland and gave no reasoning for the refusal.  Mr. Marques appealed this refusal to give a reason, but lost the appeal.  The Appeals Court stated that he was not entitled under law to be given a reason for the refusal.

The case has now been sent to the Irish Supreme Court, which has agreed to a stay in any extradition until after the Court either hears the case or declines to hear the case.

Charging an internet service provider with crimes based on the content  of websites owned and operated by the customers of the internet service provider is new, but not uncharted, territory for the U.S. Department of Justice.  This is akin to holding Amazon Web Services criminally responsible for the content of all websites hosted on its servers.  There has been no allegation that Mr. Marques himself ran the offensive websites.

This case stems out of the federal court in Maryland, USA.  This is the same location of the infamous Silk Road case, involving a Dark Web site that sold items for bitcoins.  In that case, some of the users of the site sold illicit drugs. The alleged Silk Road site owner, Ross Ulbricht, was held criminally responsible for the drug transactions on the site.  As it turned out, two or more of the investigators in the case, including Carl Mark Force IV, of the DEA, and Shaun Bridges of the Secret Service, were eventually charged with stealing large quantities of bitcoins from the Silk Road.  Both were charged with federal crimes and sentenced to prison terms.  The Maryland-based investigation into Freedom Hosting was in the same time frame as the Maryland-based investigation into Silk Road. Note, the Silk Road case was eventually tried in New York, where the US DOJ claimed a parallel investigation had taken place.  The ties to New York are unclear and the main investigator present at the arrest and trial of Ross Ulbricht was Jared Der-Yeghiayan, from the Chicago office of the Department of Homeland Security.  

There are numerous parallels between the Silk Road case and the Freedom Hosting case.  Both services were started by young men with a knack for creating lucrative internet businesses.  Both services operated on the Dark Web.  Both ran minimal operations -- though the operator of Silk Road, known as DPR (Dread Pirate Roberts) had a few helpers running forums and such things, Eric Eoin Marques ran Tormail and Freedom Hosting entirely by himself.  The Freedom Hosting website assured customers it was not a one-man operation, but it was.  Freedom Hosting also assured its customers, in writing on the site,  that their sites would not be visited or supervised by the hosting company.  The Freedom Hosting Terms Of Service had forbidden the users from using the sites for any illegal purposes.

The Freedom Hosting site offered anyone, for a small cost, the ability to start a Dark Web site with the same ease and familiarity as one might start a Google or Wordpress blog.  Tormail offered anonymous email accounts.  Both services were innovative and made the highly technical usable by the average person.  Both services have been shut down by the U.S. government.

Eric Eoin Marques is autistic, has dual U.S.- Irish citizenship, and lived with his father in Dublin until his arrest several years ago.  Mr. Marques was extremely quiet and stayed hidden in his bedroom, where he invented Tormail, founded Freedom Hosting, and ran his businesses.  He allegedly left the bedroom once each day to go out to eat at McDonald's.  If Mr. Marques is extradited to the U.S., this will impose a great hardship upon his father, who has never been to Maryland and does not know anyone there, but wishes dearly to be there for his autistic son.  The father hopes that the Irish Supreme Court will allow this matter to be handled in Ireland.   That decision is now in the hands of the Irish Supreme Court.

Illinois Cyberstalking Law

Illinois Cyberstalking Law
by Susan Basko, esq.

Illinois has laws to protect people from stalking, placement of their photos or name on a site that contains pornography, and other such laws.  You can read about those here:

Below is the Illinois Cyberstalking Law. 

 (720 ILCS 5/12-7.5) 
    Sec. 12-7.5. Cyberstalking. 
    (a) A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:
        (1) fear for his or her safety or the safety of a
third person; or
        (2) suffer other emotional distress.
    (a-3) A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and: 
        (1) at any time transmits a threat of immediate or
future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or
        (2) places that person or a family member of that
person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or
        (3) at any time knowingly solicits the commission of
an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (a-5) A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:
        (1) which communicates a threat of immediate or
future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person, or
        (2) which places that person or a family member of
that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint, or
        (3) which knowingly solicits the commission of an act
by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (b) Sentence. Cyberstalking is a Class 4 felony; a second or subsequent conviction is a Class 3 felony. 
    (c) For purposes of this Section:
        (1) "Course of conduct" means 2 or more acts,
including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.
        (2) "Electronic communication" means any transfer of
signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions through an electronic device including, but not limited to, a telephone, cellular phone, computer, or pager, which communication includes, but is not limited to, e-mail, instant message, text message, or voice mail.
        (3) "Emotional distress" means significant mental
suffering, anxiety or alarm.
        (4) "Harass" means to engage in a knowing and willful
course of conduct directed at a specific person that alarms, torments, or terrorizes that person.
        (5) "Non-consensual contact" means any contact with
the victim that is initiated or continued without the victim's consent, 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.
        (6) "Reasonable person" means a person in the
victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.
        (7) "Third party" means any person other than the
person violating these provisions and the person or persons towards whom the violator's actions are directed.
    (d) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section. 
    (e) A defendant who directed the actions of a third party to violate this Section, under the principles of accountability set forth in Article 5 of this Code, is guilty of violating this Section as if the same had been personally done by the defendant, without regard to the mental state of the third party acting at the direction of the defendant. 
(Source: P.A. 96-328, eff. 8-11-09; 96-686, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-303, eff. 8-11-11; 97-311, eff. 8-11-11; 97-1109, eff. 1-1-13.)