Important Copyright Case before the US Supreme Court

between a rock and a hard place
Important Copyright Case before the US Supreme Court
by Susan Basko, esq.

On January 9, 2019, the U.S. Supreme Court will be hearing a case that will decide a very important question regarding Copyright.  The rule, written in US Copyright law, is that a person must register copyright on a creative, original work with the US Copyright Office before that person can file a copyright infringement lawsuit regarding that work.  However, the question is:  What does it mean to register?  Is it good enough to put in the application, deposit (copy of the item to be registered), and the fee?  Or does the law actually require the application to be accepted and registered by the US Copyright Office, a process that takes 6 months to a year?  That is the question that will be decided.

The case is called FOURTH ESTATE PUBLIC BENEFIT CORPORATION V. WALL-STREET.COM.  Fourth Estate provides content for news websites that subscribe to its service.  Wall Street was one of the subscribers to its content. Fourth Estate required its subscribers to delete all of the Fourth Estate content off its websites when canceling a subscription. Wall Street cancelled its subscription, but left the Fourth Estate content on its websites.  Fourth Estate sued for copyright infringement after filing a copyright application, but before that application had been granted or denied.

Federal courts work in circuits, so that federal appeals are valid for an entire circuit, which encompass several states.  With this question, the 10th Circuit and 11th Circuit  have decided that the copyright registration must be either granted or denied before an infringement lawsuit can be filed. The 10th Circuit is a block of western mountain and plains states - Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.  The 11th Circuit is the southeastern states of Florida, Alabama, and Georgia.

The 5th and 9th Federal Circuits have held that a Copyright registration has taken place when the application, deposit, and fee have been sent to the Copyright office.  The 5th Circuit is Texas, Louisiana, and Mississippi.  The 9th Circuit is California, Nevada, Arizona, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands.  Copyright applications can be, and usually are now, made online, so this process takes under one hour.  Thus, the people in the 5th and 9th Circuits have the advantage of at least 6 months over those in the 10th and 11th Circuits.

The question being decided by the US Supreme Court is this:

DECISION BELOW: 856 F3d 1338


Section 411(a) of the Copyright Act provides (with qualifications) that "no civil action for
infringement of [a] copyright in any United States work shall be instituted until preregistration
or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. §
4ll(a). The question presented is:

Whether "registration of [a] copyright claim has been made" within the meaning of§ 411
(a) when the copyright holder delivers the required application, deposit, and fee to the
have held. 

WHY THIS IS IMPORTANT: With the internet, we are able to instantly publish words, pictures, videos, etc.  If our works are creative and original, and set into tangible form (such as being written, photographed, recorded, etc.), they are imbued with copyright upon their being set into tangible form.  However, the copyright law says we cannot use a lawsuit to protect the copyrights unless we first register copyright.  If we were to follow the rule that "registration" means the full six month of longer process of the Copyright Office registering or denying registration, that leaves the works without the full protection of the law for those 6 months. If we follow the rule that says filing the Copyright application, paying the fee, and depositing the material is "registering," then the works can have the full benefit of the law once the application is filed.  The key then is to be sure to file a Copyright application before filing any copyright infringement lawsuit.  Since this law is interpreted differently by the Courts in these different circuits, those who feel they need to file a copyright infringement lawsuit to protect their works may need to "forum shop" to file their lawsuit in a court in one of the circuits that requires only the filing of a copyright application and not its acceptance and registration by the Copyright office.

This gap of 6 months or more can matter a lot because the statute of limitations on Copyright infringement is only 3 years after the copyright claim "accrues".  After 3 years, the copyright holder is barred from filing a lawsuit.  If the copyright holder has to wait 6 months or more for the copyright to be registered, that cuts the window of time in which a lawsuit can be filed.  But, does the claim accrue at the time of the infringement (known as the injury rule) or does it accrue when the copyright owner finds out about it (known as the discovery rule)?  Different courts across the nation have interpreted this in different ways.  Most federal circuits use the discovery rule -- that the statute of limitations begins to run when the copyright owner knew or should have known that the copyright was being infringed.

Interestingly, it is the 10th and 11th Circuits that follow the more time-limiting "injury rule" and also require the full registration to take place.  These two limitations can severely limit the time frame in which a copyright owner in the 10th and 11th Circuits would be able to file an infringement lawsuit.  For  example, a copyright might be infringed and the copyright owner might not find out about it for a year or two  -- and then, if the work is not already registered, would in addition have to wait the 6 months or longer for the Copyright office to register the work.  That would narrow the window for filing a lawsuit to a few months or in many cases, remove the possibility altogether.

The anticipated result of this Supreme Court case will be to bring the 10th and 11th Circuits into line with the rest of the nation, so that there is a more uniform Copyright protection nationwide.  If the Supreme Court issues a decision other than bringing the 10th and 11th Circuits in line with the rest of the nation, we can foresee a lot more forum shopping on Copyright law cases stemming from within the states in those circuits.  Companies within those states may wish to incorporate a branch elsewhere and register their copyrights from a location that has more normal copyright protections.  Again, the states that are affected by the copyright unfriendly rulings in the 10th and 11th Circuits are Florida, Alabama, Georgia, Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.  The Courts in these two Circuits have essentially stripped a great deal of copyright protection from the people in those states.

OTHER TYPES OF COPYRIGHT PROTECTION:  A great deal of commerce and communication is now done on the internet.  There are several potent forms of copyright protection that exist on the internet that do not apply off the internet.  Among these are the system of having DMCA  (Digital Millennium Copyright Act) registered agents and sending DMCA takedown notices.  Other protections include the takedown systems provided on some of the internet giants, such as Amazon, Youtube, Facebook, and Twitter.

My personal experience is that the Copyright takedown systems are robust on Amazon and Facebook, and very weak and poorly run on Youtube and Twitter.  To add insult to injury, Youtube, which is owned by Google, engages in the incredibly dangerous and harassing practice of posting the name of the copyright holder who has had a video removed -- so that the infringer and his or her fans know exactly who to target and stalk and hack and harass.  There is no legally valid reason for Youtube to engage in such a dangerous practice.  This is yet another example of the practices of Youtube and Twitter both devising systems that create bizarre obstacles for those being injured by the sites' users to simply have the offending materials deleted.  Both sites seem to cater to the users who are offensive or even deranged, rather than simply following basic law and normal concepts of protecting the public from users intent on harming others.

Very few people can afford to file a Copyright lawsuit.  However, Copyright registration is in and of itself a very good protection -- because it opens the possibility and the threat that one could file a copyright infringement lawsuit.  In addition, prompt registration after creation of the work or before the work is infringed brings the added benefits of the possibility of high dollar amount statutory damages, rather than whatever damages can be proven, as well as the possibility of being awarded lawyer fees.  Copyright infringement statutory damages are set very high -- about $150,000 per item infringed -- and this can be had even if the actual damages would be minimal, or de minimis.  The possibility of being awarded lawyer fees can sometimes entice a lawyer to take a case from a client unable to pay.  These two benefits of registering can provide a very powerful impetus to getting an infringer to stop infringing and/or to settle quickly.

Unfortunately, this very dilemna has been abused by Copyright Troll lawyers who have done such idiotic things as filing lawsuits against lots of people who downloaded a song or movie off websites that lured and invited them to do just that.  Some lawyers or their clients have even been caught baiting infringers with tagged porn movies to download -- and then be sued.  Other Copyright Troll lawyers have gone on fishing expeditions where they send out mass mailings about potential copyright infringement, to try to threaten people into settling.  Courts have hammered down on some of these Copyright Trolls, thank goodness.  Copyright is not a game and should not be used to bait and attack.

For the honest creative person who is looking to protect their creative, original work, registering Copyright promptly is a very excellent protection.

For start-up businesses looking for a place to establish -- there are reasons most of the start-ups situate themselves in the States where the courts are copyright-friendly.

Five Persistent Myths About Copyright

Five Persistent Myths About Copyright

There is a set of 5 myths about copyright that persist and seem to be spreading via the internet. Always keep in mind that Copyright has to do with the "Right to Copy."  The person who makes a creative, original work and sets it into tangible form (such as writing, drawing, recording) is (almost always) the one that owns the copyright and is the one that has the right to copy it and to decide if anyone else gets to copy it or use it.

Translation: Copyright = the Right to Copy.

 Here are some of the most common folkloric falsehoods about copyright law:

MYTH #1: If it's on the internet, it's in the public domain.  FALSE.  This is a very common idea that actually makes no sense.  Creative works enter the public domain after copyright wears out because of passage of time, which under current law, is the life of the creator plus 70 years after their death.  While there are works of art and music and writing that are on the internet that are in the public domain, such as pictures of very old paintings and old classical or folk music, anything that was created within the past 70 years cannot possibly be in the public domain.  Putting something onto the internet might be a means of "publishing" the work, as defined in copyright law, but it has nothing to do with public domain.

Translation: Just because it's on the internet does not give anyone else the right to use it.

MYTH #2: If you buy a work of art, you can do whatever you want with it.  FALSE.  No, not if it is painting, drawing, print, sculpture or still photograph that is a single piece made for exhibition or in an edition of 200 or fewer signed and numbered copies.  A 1990 law called VARA or Visual Artists Rights Act creates a sort of caretaker stewardship in any owner of such an art work, and allows the creator these rights:

  • right to claim authorship
  • right to prevent the use of one's name on any work the author did not create
  • right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
  • right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
A more famous artist can prevent the destruction of an art work they have created.  Under this law, in 2018, a court awarded $6.7 million dollars to a group of 21 graffiti artists whose works were destroyed by a building developer.  Their graffiti art was painted onto a New York City building called 5 Pointz that had been artist studios for many years.  When the developer demolished the building to build condos, he destroyed their graffiti art work, in violation of the VARA law.

Translation: If you own a work of fine art, you are its caretaker and there are laws about what you can and cannot do with the art.

MYTH #3. If you take someone else's art work and change it 10%, it becomes yours and you can claim it as your own.  FALSE.  If you take someone else's art work and make changes to it, you are creating a DERIVATIVE WORK, and you need permission from the artist/ copyright owner of the original work to do that.  Creating a derivative work without permission from the copyright owner of the work you are riffing off is copyright infringement and can cost you $150,000 in statutory damages.

Translation: Stealing art is stealing art, even if you change it a bit.

MYTH #4. If you use someone else's work but do not make any money, it's okay. FALSE.  Copying someone else's creative work is copyright violation, whether the infringer makes money or not.  When an art work is registered with the U.S. Copyright Office, the artist may get statutory damages in a copyright infringement lawsuit.  Statutory damages on copyright are very high -- about $150,000, even if the artist cannot prove damages.  This is supposed to act as a deterrent to keep people from infringing copyright.  Writing apologies or notices such as, "No copyright infringement intended," has no legal effect, though it might make the copyright owner dislike you less.

Translation:  Even if you do not make any money by using someone else's copyright registered work, you might end out owing them $150,000 in statutory damages.

MYTH #5.  It's okay to use someone else's art because:  they'll never find out, there is nothing they can do, copyright lawsuits are too expensive, I'm on the other side of the world, I got hired by a company to do this, I feel like this art should belong to everyone. FALSE.  Most artists have fans and friends who will rush to tell them if they see someone stealing their art.  Googling images also makes it easy to find stolen art and counterfeits.  Copyright lawsuits are very expensive, but there is a whole array of other remedies that cost nothing other than time, including having your products removed off Amazon and Etsy and other sites, having your pictures removed off Facebook and imgur, having your products removed out of physical stores and markets, causing your links to go dead on Youtube product and unboxing videos, removing your products and store off printing sites.  Amazon and other sites got a lot more cautious about hosting and selling stolen art and counterfeit goods after several high profile lawsuits cost them tons of money.  If you expect Amazon to collude with you in your sale of shirts and posters adorned with counterfeit art, think again, because that jig is up.

Translation: If you're thinking of stealing art, think again.

If this has been helpful for you, feel free to drop me an email at

Amicus Brief from Reporters Committee for Freedom of the Press

a relief sculpture of "hell," which appears to have all broken loose
in the court battle between Jason Lee Van Dyke and Thomas Retzlaff

Amicus Brief from Reporters Committee for Freedom of the Press 
in Support of Thomas Retzlaff in Van Dyke v Retzlaff
re: TCPA Should Apply in Federal Court
by Susan Basko, esq.

November 28, 2018. The following amicus brief was filed today by the Reporters Committee for Freedom of the Press and 39 Media Organizations in support of Thomas Retlaff in a lawsuit filed against him by Jason Lee Van Dyke, a lawyer and Chairman of the Proud Boys.  The amici argue that the Texas Citizens Participation Act, or TCPA, which is the Texas Anti-SLAPP statute, should apply in Federal Court cases.

The amici are: Reporters Committee for Freedom of the Press, American Society of News Editors, Associated Press, The Associated Press Media Editors, Association of Alternative Newsmedia (“AAN”), California News Publishers Association (“CNPA”), Reveal from The Center for Investigative Reporting (“CIR”), Courthouse News Service, Dow Jones & Company, Inc., The E.W. Scripps Company, First Amendment Coalition, First Look Media Works, Inc., Fox Television Stations, LLC, Freedom of Information Foundation of Texas, Gannett Co., Inc., Hearst Corporation, International Documentary Assn., Investigative Reporting Program, Investigative Reporting Workshop at American University, The McClatchy Company, The Media Institute, Digital First Media, MPA – The Association of Magazine Media, National Press Photographers Association, National Public Radio, Inc., The New York Times Company, News Media Alliance, Nexstar Media Group, Inc., Online News Association, POLITICO LLC, ProPublica, Radio Television Digital News Association, Reporters Without Borders, The Seattle Times Company, Sinclair Broadcast Group, Inc., Society of Professional Journalists, Texas Association of Broadcasters, Texas Press Association, Tully Center for Free Speech, and The Washington Post.

Music Artists: Does Sound Exchange Have Money for You?

Music Artists: Does Sound Exchange Have Money for You?
by Susan Basko, esq.

Sound Exchange collects and divvies out the royalties for non-interactive streaming play, such as satellite radio providers, webcasters, and digital cable music providers.  Sound Exchange pays money to featured artists and SRCO - sound recording copyright owners.   This is different from the PROs - performing rights organizations, such as ASCAP, BMI, and SESAC, which deal with performing rights royalties for broadcast radio and pay songwriters through their publishers.  Sound Exchange does not deal in any royalties from Youtube or other video sites or services.

A lot of featured artists and sound recording copyright owners fail to register themselves and their works with Sound Exchange, possibly because they don't know what Sound Exchange does.  Every year, there is a big glut of money that goes unclaimed.  You have to register to get the money! 

Does Sound Exchange have money waiting for you?  

If you are a sound recording copyright owner, such as a record label, you can search here to find out if there is money waiting for you:

Among the 37,614 music artists or rights owners that currently have unclaimed money waiting for them are some fairly big names, including Dan Gibson, Josh Vietti, James Cordon, Molly Ringwald, The Bornagen Beatles, Chicago Symphony Orchestra, Cleveland Jazz Orchestra, Portland Cello Project, Blue Chicago, Chicago Sessions, Marky Mark, Kevin Costner, New York Philharmonic, Flosstradamus, 4 Alarm, and thousands more.

There are 2,657 sound recording copyright owners with "Records" in their names who have not claimed their money, including Los Feliz Records, Lost Cat Records, Capstone Records, Datapunk Recordings, and so many others.

If you search and see that you are owed money, you have to register, which you can do using one of the many forms at this link:

The layout for music royalties is quite complex, with different types of royalties coming from lots of different sources and going to different types of people or entities.  Sound Exchange is the only (or one of the few?) organizations that is authorized to make payments to featured performers and sound recording copyright owners.  

If you have learned something new from this post, feel free to drop me a note at   Have a great day!

Volunteer: Give and Get

Volunteers rappel down to pick up trash dropped by hikers and tourists.
Volunteer: Give and Get
by Susan Basko, esq.

Volunteering can bring more meaning into your life.  If you are feeling bored or stuck, consider volunteering some time to a good activity.  My family was always strong with the spirit of volunteering to make for a better world, and I want to share that with you.  In doing so, I hope to spark you with some ideas of the many ways you can volunteer.

Volunteering can take a small amount of time, such as a few hours per month, or can take a lot of time, all the way up to a big time commitment.  The time span commitment level in volunteering can be a one-time project that takes a half a day, all the way up to being a years-long commitment.  The skill level needed for volunteering depends on the job to be done.  All volunteer jobs require a person to be reliable and on time and to do the task that is needed, but this can vary from picking up trash to searching for evidence to performing legal work or medical work.  There is almost always a cost involved in volunteering, such as paying for transportation, meals, babysitter, etc.  Some volunteer spots require the purchase or ownership of special equipment.  There is as much variety in volunteer work as there is in paid work.

There are so many reasons to volunteer your time.  The main reason is that you can make society a better place while becoming a better person.  Volunteering is character building.  Volunteering gives you a chance to do good things for others, which, in itself, is very satisfying.  You can learn new skills and build confidence in old skills by volunteering.  

I want to give some examples of volunteering that my family members, friends, and I have done through the years.  These examples are meant to give you ideas and inspire you to volunteer.

When I was growing up, my uncles helped run a group that provided an after-school club for kids in a rough inner city neighborhood of Chicago.  Every summer, the same group ran a one week sleep-away camp for the same kids.  I remember going to the fundraiser picnics that paid for the clubhouse and camp.  My uncles were just regular men, but joined together with others, they were able to make a week in the country happen each summer for children from some of the bleakest concrete spaces in the city.  I'd like to think those kids grew up better because of it.

My mother and aunt volunteered at a famous old theater that a group was saving from demolition.  To make it work financially, a group of volunteers ran and worked the front end of the theater - collecting tickets, passing out playbills, ushering people to their seats.  When the lights went down, the ushers took seats and watched the shows, which were often musical stage plays.  

My mother also volunteered to teach recent Hispanic immigrants how to speak English.  The program taught her how to teach one-on-one lessons in English as a second language.  My mother had a series of students, who attended their tutoring sessions free of charge.  My mother got a kick out of it.  She enjoyed welcoming new people to our nation.  She felt good knowing she was making them more employable and better able to support their families.

When we were in high school, my sisters volunteered at a tutoring program in "the projects."  They went to a housing project and tutored students in their schoolwork.  Both of those sisters went on to get teaching degrees and certificates.  One went on to run a mentoring program where the accomplished adults and community leaders in her city come in and mentor students in reading by sitting one-on-one with a student who reads to them.  It is said that mentoring a student in this way helps them to read and also builds their self-esteem, so they set higher goals for themselves.

Some of my friends run a volunteer activity that provides free hot soup to over 100 people three times a week.  This is their way of addressing the food insecurity of people in their city.  They gather donations of food and disposable bowls and utensils, prepare big pots of nutritious soup and bread and muffins.   They take the hot soup out to the same location three evenings a week and feed whoever shows up wanting a free meal.  My own family has helped with this wonderful activity and have found it good in every way.  

One of my family members volunteers with a mountain search and rescue group.  This is a volunteer activity that is hard to get into.  There is a complex system of application and being selected, and an ongoing rigorous program of training sessions in things such as communications, emergency medical treatment, rope climbing, rappelling, biking, running, orienteering, carrying a person, and much more.  There is also a significant expense involved, since each volunteer must pay supply their own clothing and equipment and supplies, as well as providing their own transportation.  As part of this group, my family member has helped rescue many lost or injured people, as well as helping to recover and carry out a few people who did not survive.  

I personally have done a huge amount of volunteering, often such things as saving historic buildings or working to make an area more livable for pedestrians by getting walk lights and pedestrian crossings installed.  My volunteer efforts have used my specialized skills of advocacy and organization.  I have also participated in several zoning boards where we would be presented with proposals by developers and then give our feedback or recommendations. 

One of my other main areas of volunteer work has been to help people and groups that want to run a legal, peaceful protest.  I have helped people all over the U.S. and all over the world to understand where and how they can protest, how they can determine if a permit is needed, how to obtain a permit if one is needed, how to schedule a protest and plan the agenda to keep the protests safe and meaningful.  I have helped people from all over the political spectrum with running protests, as long as they want to run a legal, peaceful protest.  I also run a blog that tells people how to do these very same things.  It is very fulfilling to know that I have helped people all over to engage in their basic rights of freedom of association and freedom of speech.

I have also done one-day volunteering sessions.  One I recall was with a group that plants trees in the city.  We spent an afternoon taking care of trees the group had planted the year before.  First, we were trained, and then we broke into pairs.  Each pair handled a row of trees.  We cleaned, dug, mulched, watered, and added new protective mulching materials at the base of the trees.  By the end of the afternoon, I was tired, hot, and streaked with dirt.  It was a wonderful experience and I learned basic maintenance of a tree.  Before that, I had never realized how hard it is for a tree to survive in the city, amid air pollution and misuse.

One of my young relatives has been volunteering at his local library for about 6 years now.  He helps with the reading club for younger children.  He runs the reading club desk when children come in to say which books they have read and to collect their points and prizes.  He also sits on the library teen board, reading and reviewing books and making recommendations.  This activity combines his love of reading with his natural kindness toward younger children.  He started volunteering at this when he was about 11 years old.  He was old enough to show up on time and take his duties seriously.

I know a man who runs an organization that builds gardens for schools.  They work with the school principals to design a space with growing areas and planters, benches and work tables, an outdoor sink.  Then, the group gathers volunteers who come in for a whirlwind of hard, highly organized work and build an amazing outdoor space in a day or weekend.  The volunteers carry wood, shovel and haul dirt, drill holes and screw screws.  At the end of the day, they have turned a dilapidated empty space into a wonderful outdoor nature learning area.  They are always looking for hard workers with lots of stamina and the ability to closely follow instructions.

I have friends who have volunteered on a suicide hotline.  They had to apply and be selected, and then were trained.  Apparently, weekend nights are big times for people to contemplate suicide, so the volunteers were needed during those time slots.  My friends would volunteer one or two weekend nights per month.  They said it was very difficult work, but very worthwhile knowing they were saving lives. 

I know a plumber who volunteers one day a year to go to schools and homes of people who need a specific plumbing job done.  He has gone in and put in a toilet or sink or cleaned a sewer line, or whatever needed doing.  This volunteer day is organized by his plumbers' union.

Whatever your specific skill set is, there are volunteer opportunities to match it.  You can even create your own volunteer activity.  I often see a man who walks around picking up litter on the street.  He's out there making the world a little bit nicer.

If you are looking for your first volunteer activity, you can usually find notices in your local paper, on bulletin boards, or on Facebook groups.  If you have a special skill set, look for opportunities that will make good use of it.  If you have an interest you would like to explore, look for a volunteer activity that will bring you in contact with others who have the skill set you desire.  

Be realistic about how much time and money you are able to spend on volunteering and how much is required for the activity you are considering.  Maybe you want to do a one-time activity that lasts 3 hours and costs only your transportation.  Maybe you are enticed, like my relative on the mountain search and rescue team, to join an activity that is all-encompassing.  Find what is right for you.

There is a famous old quote from the late President John F. Kennedy: "Ask not what your country can do for you.  Ask what you can do for your country."  To that I would add, "Ask what you can do for  your city or your neighborhood or your school or your park or your library or your street."  Go for it!

Brett Kavanaugh's New Job

Brett Kavanaugh's New Job
by Susan Basko, esq.

Brett Kavanaugh is now Justice Kavanaugh of the U.S. Supreme Court.  The photo above shows Justice Kavanaugh being sworn in by Chief Justice Roberts in the Justices' conference room.  This is the actual room where the Justices meet and sit around a table and take a vote on the cases they have heard.  There are several conference rooms at the Supreme Court building, and they have lovely old chandeliers, as shown below.  In the Justice's conference room, the chandeliers were replaced with bright lights because one of the Chief Justices thought it would help them to see better.  Look how bright that room is!   

As the Junior Justice, it will be Kavanaugh's duty to answer the door to the conference room, should anyone come knocking while the justices are meeting.  The doors to the conference rooms are very tall and heavy and ornate.  There will be security and staff and workers, but not directly inside the room, which is private, since the deliberations are considered secret.  The junior justice is also in charge of taking notes during the meetings.

Another duty of the Junior Justice is to supervise the cafeteria that is on the ground floor of the Supreme Court building.  That cafeteria is open to the public and is frequented by staff from the U.S. Capitol building across the street.  When Elena Kagan was the junior justice, she earned a reputation of having healthy foods in the cafeteria.  The cafeteria had a well-stocked, fresh salad bar.  She also introduced some local foods from her region.  Since Justice Kavanaugh is from Maryland, perhaps he will introduce crab cakes and hush puppies to the cafeteria line-up.  Maryland is also known for its official dessert, Smith Island cake, a yellow cake that has many thin layers, each cemented to the next with a layer of rich chocolate filling.  We'll have to wait and see what goodies this new justice brings to the cafeteria.

The Supreme Court hears cases in an ornate old courtroom that has much of the original furniture from 1935, when the building was completed.  The Justices sit on a raised stage, behind a long desk.  Each Justice gets a special chair made to his or her measurements and specifications.   Considering they have to sit for long hours listening to case arguments, they need comfy chairs.  Sometimes a justice might appear to doze off, but you will never see this in pictures or video, because cameras are strictly forbidden in the Supreme Court courtroom.  The hearings are audio recorded and the archives of those recordings are on the Supreme Court website.

When Justice Kavanaugh comes to work each day, he does not have to walk up the tall staircase out front.  There is a side door on the ground level, and elevators that go to the courtroom level.

Above the courtroom is a gymnasium and basketball court.  It is open when the court ends for the day.  If someone were shooting hoops during court, it would sound like boom boom boom on the courtroom ceiling. Can you picture Justice Kavanaugh going up to the gym to shoot hoops with Justices Gorsuch and Kagan?  Maybe, right?  Or maybe he will join Justice Ruth Bader Ginsburg in doing callisthenics and thai chi?

Note: Susan Basko, the author of this blog, is an attorney and counselor of the U.S. Supreme Court.

Dear Sir, Google Canned Responses

Dear Sir, Google Canned Responses
by Susan Basko, esq.

Gmail has this new feature where when you send an email, it automatically creates a selection of 3 Canned Responses for your receiver to use in replying to you.  As the sender, you do not get to pick the responses being sent, and you do not even see them.  There is a way to turn them off, and this will be shown further below.

What kind of Canned Responses does Gmail generate?  I started sending emails to find out.  I started with a religious query to a pastor.  This is my email and in the blue are the Canned Responses.

Next, I tried a business letter regarding contracts ready to be signed, with a possible side of fries.

Perhaps Sunday dinner with Martha Stewart and Snoop Dogg.

Then I thought I'd ask Elon Musk to put me in his space program and send me to Mars.  Let's see what his reply options are.

 Next it seemed like Southwest Airlines needed a talking-to.

Harvard University was up next.

Then I got to thinking how poorly Serena Williams was treated on the tennis court recently.

Maybe Donald Trump needed a few encouraging words?

Maybe Kanye West could run for president next time?

And what's up with Jack at Twitter?

Finally, it seemed like Sergey at Google needed a few words of advice from me.

"It works"?  What sort of reply is that when I write to say gmail is broken?

This is how to turn off the Canned Responses on Gmail: Go up on the top right hand side to the little GEAR thing.  Click it and choose SETTINGS.  From the top bar menu, choose ADVANCED.  Next choose: CANNED RESPONSES -- and choose DISABLE.  Then you need to scroll to the bottom and click on SAVE CHANGES.

Illinois No Guns Allowed Signs

Illinois No Guns Allowed Signs 
by Susan Basko, esq.

The U.S. State of Illinois has an interesting law that allows the owner of any private real property to prohibit anyone from bringing a firearm onto or into the property simply by posting a copy of the sign above at the entrance to the property.  No sign is needed if the property is a private residence.  The sign must be 4 inches by 6 inches in size and must be clearly and conspicuously posted at the entrance to the property or building.

The law is found in 430 ILCS 66/ Firearm Concealed Carry Act , a much longer law that allows people to apply for a concealed carry permit, and gives a long list of places where any firearm is prohibited, including schools, daycare centers, government buildings, courts, jails, prisons, hospitals, buses or trains, bars or any place that serves alcohol, special events held in public, playgrounds, parks, athletic fields and facilities, trails and bikeways, forest preserves, any college or university building or facility, any horse racing or gambling facility, any sporting arena or stadium, libraries, airports, amusement parks, zoos, museums, nuclear facilities, and anywhere else prohibited by federal law.

That long list leaves a few private locations, and the owners of those properties can opt to make their properties Gun-Free Zones simply by posting the sign shown above.  The sections of the law that detail this are:

(a-10) The owner of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control. The owner must post a sign in accordance with subsection (d) of this Section indicating that firearms are prohibited on the property, unless the property is a private residence.


(d) Signs stating that the carrying of firearms is prohibited shall be clearly and conspicuously posted at the entrance of a building, premises, or real property specified in this Section as a prohibited area, unless the building or premises is a private residence. Signs shall be of a uniform design as established by the Department and shall be 4 inches by 6 inches in size. The Department shall adopt rules for standardized signs to be used under this subsection. 

In Chicago, the biggest city in Illinois, the little signs are posted on the entry doors to many buildings, usually just above the door handle.   Just by posting these signs at the entrance to the property, the owner creates a law for their own property.

The signs are sold online by sign companies.  The signs have to be exactly as stated in the law, with no additional wording or graphics.  If you look, you will see these signs all over Illinois on the doors to restaurants, hotels, shopping malls, stores, laundries, and other places open to the public.

Let's look at an example.  Stephen Paddock brought many guns into his hotel suite on a high floor in a  Las Vegas, Nevada, casino hotel. Paddock loaded up his cache of automated weapons and ammunition onto luggage carts and wheeled it into the freight elevator and brought it up to his room.  He returned to his home several times to bring more guns and ammo back to the hotel.  He used those guns to shoot and kill many people who were at a concert down below outside in view of his hotel windows.  

It has been reported that in the year before that massacre, Paddock had booked a hotel room in Chicago, Illinois, overlooking the site of Lollapalooza, a big music festival.  Paddock never showed up at his reserved rooms in Chicago.  This Illinois law that allows hotel owners to prohibit guns may be the reason Paddock never showed up.

What is the difference between Las Vegas and Chicago?  Most Chicago hotels do not allow firearms.   The hotels post the little signs, thus making it illegal to bring a gun to the hotel.  The hotels also post the firearms policy on their websites.  Below is the policy as stated by the hotel that Paddock had booked overlooking Lollapalooza.  It is from the Chicago Hilton on Michigan Avenue.  The policy states: "FIREARMS POLICY Carrying a weapon on these premises is prohibited and violators may be subject to arrest for trespass under applicable law."  

At most hotels in Illinois where it is illegal to bring in a firearm, if the person has a concealed carry permit, it is usually legal for them to leave the firearm locked in a case in their locked car in the parking lot.  You can ask any hotel what their policy is regarding the parking lot.  Most downtown Chicago hotels charge a high daily parking lot fee, usually around $50 per day.

If you want to buy some of the No Gun signs, you can find them for sale online at several places, including this site: Compliance Signs   You will notice the signs are not inexpensive, but they do appear to meet the legal requirements.  By googling, you can find other sites selling the signs.  if you are a property owner in Illinois and want to make it illegal for anyone to bring in a gun, get some of the signs and put them on your entry doors.  The signs are sold as decals, so all you need is a clean door and you can have the sign up in a few minutes.

Basic Venue Safety
for Festivals, Concerts, Shows, Protests, Parties

Basic Venue Safety
for Festivals, Concerts, Shows, Protests, Parties, and More
by Susan Basko, esq.

When you gather a large group of people for an event, your topmost priority should be their safety.  Disasters happen very quickly and are almost always avoidable.  The conditions that cause a disaster are almost always the result of those running the event taking a shortcut, not thinking things through, being lazy, or being cheap (or being too poor to do things right and going ahead and risking lives).   By "disaster," we mean something that causes multiple deaths or injuries. In a venue disaster, the deaths will usually be from smoke/fire, trampling, or crushing.

The place where the event is being held is the venue.  The venue may be indoors or outdoors. Disasters happen at outdoor venues, too.  Different types of events have different purposes, but the safety factors on all of them are quite similar.   Here are some basics:

Capacity:  Every venue, indoors or out,  has a maximum legal capacity of how many people are to be allowed in.  Exceeding the capacity is extremely dangerous.  The capacity of an indoor venue may be stated as one number if standing and another number if seated.  If a venue is such that patrons are flowing in and out, then you must use counters and see how many are inside before letting more in.

At most venues, the legal capacity is posted on a sign on the wall.  If you make a habit of looking at these signs, you will see that most venues have a much lower legal capacity than you might expect.  The legal capacity is based on square feet, purpose, whether patrons will be standing or seated, and if seated, at chairs or at tables, number of exits, number of toilets, and other factors.  It is great for an event to draw a crowd, but if the crowd exceeds the capacity of the venue, it is dangerous.

Permits/ Inspections:  Almost every locale requires any venue to be inspected and licensed as a permanent venue or permitted as a special venue.  These permits and inspections go a  long way in providing for safety. Most locales will inspect the layout of the space, the exits, the smoke detectors and sprinklers, lighting, electricity, platforms and stages, structures, props and hangings, sanitation, and any food service.  Many locales have written laws, rules, or policies that spell these factors out in detail.  You should work with people who know the rules and follow them.  Buy the guidebooks and have your staff use them.

Layout:  The floor layout for an event should be done in advance to scale with a computer rendering.  It should be done according to the local laws.  By law,  there must be large amounts of space between two tables.  By law, there must be a very wide open space in front of and around any exit or pre-exit.  A pre-exit is the exit from a room to another space that is not the outdoors.  A venue may have 5 or  6 pre-exits from the event space to the outdoors.  Each pre-exit must be carefully planned and the space around it must be laid out properly.   At set-up time, the floor is measured and marked with chalk, so the layout matches the rendering.

Exits:  Disasters often happen because there are inadequate exits or exits have been blocked or locked. Even if a place has been inspected and licensed, if a manager or security guard gets it into their heads to lock exits, for their reasons of "safety," they can invalidate the license, invalidate the insurance, and endanger lives.  Never allow anyone to lock or block an exit.  If a venue has been licensed or permitted based on  a certain number of exits, if one of those exits is not functioning, at any time or for any reason, the entire venue becomes unsafe and usually also is invalidating its license and insurance and well as endangering lives.  If a venue needs to hire an extra set of people to stand by a door to make sure people do not sneak in, or whatever the concern is, then that is what must be done.  An exit cannot be locked or blocked for any reason.  (Managers of stores or fast food restaurants often lock or block one of the exit doors, thinking that this will slow down a thief.  This practice is illegal and very dangerous and should be reported to the town or city.  Exits are required by law and causing any exit to not work can easily lead to disaster.  If you work for a business that blocks or locks exits, you can make an anonymous complaint to the town or city. )

Never allow any item to be placed in front of an exit. Items that some may be tempted to place in front of an exit include a ticket table, merchandise table or booth, autographs table, coat rack, etc.   Laws in most places require wide aisles or spaces between tables or between banks of chairs, and at least 10 feet of clearance in all directions at any exit.  Most places require lit "Exit" signs.  Venues should have emergency light systems that go on if the other lights fail, or in case of smoke or fire.

Exit Path:  The exit path should be designed so that each succeeding exit space is bigger and wider than the last.  This is equally important at an outdoor venue as indoors.  There was a terrible crushing disaster a few years ago at an outdoor festival where the exit gates led to a wide space that then led to a narrower tunnel.  Too many people got into the tunnel and people were crushed to death.  In an indoor venue, make sure the exit path is not made narrower by lines to bathrooms, furniture, a snack bar, magazine racks, etc.  If the lights are out and the place is dark and filled with smoke, anyone walking or crawling to an exit should meet no obstacles.  Turn out the lights and try it.

Fire Hazards:  Disasters have been caused by such things as sound insulation that was not fireproof, use of pyrotechnics, use of open flames or candles, decorations that were not flameproof, patrons using lighters to see, and other such things that, in hindsight, were easy to detect.  Absolutely any item that is used as a structure, decoration, prop, or furnishing in a venue should be flameproof or highly flame retardant.  Hold a lighter to it for 10 minutes and see if it burns.  Curtains, insulation, table cloths, upholstered chairs, decorations, ceiling tiles, etc. must all be flameproof.  Pyrotechnics or flame should never be used indoors, and if outdoors, should only be run by licensed professionals in a space that has been inspected by a fire marshal.   Venues that bend these rules are the ones where a disaster is more likely.  There was a disaster that was caused by a spinning birthday candle that lit decorative ceiling tiles on fire. Always think of the worst case scenario and plan accordingly.

Structures:  Collapse of stages or structures is sure to be disastrous.  Hire only a licensed, bonded, insured company and have the structures inspected by an outside source.  If a stage or structure appears to be top heavy, flimsy, off-balance, shaky, etc., it probably is.  Such situations may occur because those holding the event are trying to cut corners, save money, do things cheaply.  This is unacceptable.

Crushing: Crushing disasters happen when too many people get into one space at one time.  That's simple and logical, but preventing it is a fine art.  At outdoor venues with open lawn area, venues still often have the area just in front of the stage as a seating area, often with tickets. This is to prevent stage crush.

Even if an entire venue has seating, there can be crush if open seating, first-come, first in, is used.  This is sometimes called "festival seating," a term that makes no sense.  At festivals, the audience does not sit, but walks around.  It might also be called "General Admission."  This type of ticketing has been outlawed in some places.  It is much safer to assign tickets to seats.

It is now very common at festivals to have a large empty space in front of the stage, protected by fences and guards.  This is to prevent stage rushes as well as to give leeway to prevent crushing if the crowd begins to push.  However, people might also be crushed against such a fence, so fences that are flexible and will give way if needed are often used.  It is best to only allow into any section of space the number of people that can be safely accommodated in that space.  That requires refusing entrance once any space is already filled.

Rowdy Patrons:  Patrons who are intoxicated or agitated can present a danger, obviously.  The usual techniques of screening at the entry and a good security force work well to prevent fights.  Rowdy people are also the ones likely to cause a panic that leads to a rush to the exits.  A rush to an exit can happen quickly.  Security should be trained to isolate and contain any incident, so it does not result in a rush of people, with danger of a crush.  Making sure the venue is laid out properly and that it is not over capacity also helps avoid crush or rush.

Other Causes of Crushing:  Crushing and trampling can cause many deaths and injuries very quickly.  Other causes of crushing include locked or blocked exits, a real or perceived sense of danger, such as smoke, an odor, a sound that is or is perceived as a gunshot or explosions, a real or perceived terrorist attack, a real or perceived special happening, such as the belief that a special star is about to appear on the stage, etc.


Mark Zuckerberg Senate Testimony: My Review

Mark Zuckerberg Senate Testimony: My Review
by Susan Basko, Esq.









7. What was the name of the personality quiz?











Copyright: How to Protect Your Visual Art

Copyright: How to Protect Your Visual Art

Visual art is often copyright infringed these days, in large part because of online printing companies that allow art created by anyone, without properly vetting the source. There are several things you can do to help protect your visual art.

Examples of visual art protected by U.S. Copyright include (but are not limited to):

(visual / photography)
Architectural Works
Artwork (2D, 3D)
Board Games (visual aspects)
(maps / globes)
Cartoons, Comic Strips, Comic Books
Catalogs (visual aspects)
Craft Kits Drawings
Fabric Designs
Flooring Designs
Geologic Charts
Graphic Designs
Greeting Cards
Jewelry Designs
Labels (visual aspects)
Prints / Reproductions
Product Packaging
Scientific Drawings
Technical Drawings
Textile Designs
Vessel Hulls
Wrapping Paper


1. Register Copyright with the U.S. Copyright office on each visual art work.  In some instances, registering a group of works as a collection is more affordable.  Registering each work separately and carefully providing a name that actually describes the content of the work, and giving solid contact information, goes a very long way in protecting copyright.  While copyright theoretically exists on any work that is creative and original and set into tangible form, the only way to make use of Copyright protections is to register the work with the U.S. Copyright Office.  Registration before the work is infringed or shortly after it is created is the only method that brings the possibility of statutory damages and attorney fees in case of an infringement lawsuit.  There is no substitute for Copyright registration. There is virtually no copyright protection on any work unless it is registered.

2. Put the Copyright sign onto the work.  That's the copyright symbol ©, followed by the first year of publication, followed by the name of the copyright owner. © 2018 Susan Basko   Having the copyright notice on your work gives notice and also removes any defense that the infringement was inadvertent.

3. Watermark the copyright symbol and name of the owner using a watermarking or tagging app, or by including it into the design itself.

4. License Information you provide must be crystal clear.  "The work must not be altered.  The artist's name must not be removed. No derivative works allowed without permission." Etc.

5. Periodically Check to see if your work is being infringed online, on social media, by online sellers, in stores, by art or photo licensing companies, by print-on-demand companies, elsewhere.

6. Send take down and removal notices. Learn how to do this.  The most potent way to tell someone to take down your art work is by providing the registered copyright information.  To be able to provide that, you need to first register copyright on the work.

7. Work closely with a lawyer who will help protect your copyrights.

Jason Lee Van Dyke Applies for "Proud Boys" Trademark

Specimen from Proud Boys Trademark Application
Jason Lee Van Dyke Applies for "Proud Boys" Trademark
by Susan Basko, esq.

Important: Jason Lee Van Dyke, the Texas lawyer, is a completely different person than Jason Van Dyke, the former Chicago police officer.

BIG Update!  April 8, 2018.  Jason Lee Van Dyke has sent in changes he would like published -- so I am going to put them below each paragraph, labeled "From JLVD," and highlight those in a soft blue tint.  That way, you can compare what I wrote and what he is saying, which seem to be clarifications.

April 8, 2018.
  Jason Lee Van Dyke, a Texas lawyer who calls himself the Sgt. at Arms of the Proud Boys, is soon to get the registered trademark on the words "Proud Boys" under International Class 35, described on the application as "Association services, namely, organizing chapters of a fraternity and promoting the interests of the members thereof."  The application, filed August 9, 2017, was published for opposition on February 20, 2018. There is a 30 day opportunity to object.  The USPTO application page shows no oppositions, thus the mark is most likely going to be entered onto the principal register under the ownership of JLVD Holdings, LLC, of Crossroads, Texas.

From JLVD: This is false.  I am the Sergeant-at-Arms of the Dallas/Fort Worth chapter of the Proud Boys.  There is no Sergeant-at-Arms for the fraternity as a whole.

The Proud Boys is basically a group of white men that might be called KKK-Lite.  The Southern Poverty Law Center (SPLC) has labeled the Proud Boys a hate group, and you can read about that in detail at this LINK.  The last few paragraphs of the long SPLC write-up covers Mr. Van Dyke.

From JLVD: This is false.  The Proud Boys is a multi-racial organization with two criteria for membership:  (1)  The person must be biologically male; and (2) The person must believe that the West is the Best.  By this, the “West” refers to western culture generally while recognizing the contributions of a multitude of races to the West.  In fact, our bylaws explicitly prohibit membership by persons associated with white nationalism, white supremacy, or the alt-right.  This would naturally include the KKK. 

Note: Mr. Van Dyke has also applied for a trademark on "West is the Best." As of this date, that trademark application is on its Final Notice of rejection, based on technicality involving the specimen.

Jason Lee Van Dyke is notorious for several years ago posting shocking racist tweets on Twitter.  The tweets use the word "nigger," and show a photo of a noose, and make death threats.  Mr. Van Dyke says he was responding to harassment.  The tweets will not be shown here to avoid repeating that hate, but they can be easily found on the internet if anyone has a need to see them.

From JLVD: This is accurate except that I was not responding to harassment.  I was responding to an individual that had posted my social security number, and those of both my elderly parents, on Twitter while encouraging other users to rob us.  I have said repeatedly that I regret by choice of words, but I absolutely do not regret threatening that individual and I would do it again using different words. 

Tom Retzlaff, a notable pro se litigant from Arizona and Texas, filed a bar complaint against Jason Lee Van Dyke.   The Texas State Bar dismissed the complaint, and Mr. Retzlaff appealed that decision.  The appeal result found that complaint showed violations of several ethical rules and the matter was sent back to the State Bar for findings.

From JLVD: This is false.  The bar initially dismissed the complaint as an inquiry, which means that the complaint failed on its face to allege professional misconduct.  Mr. Retzlaff appealed to the Board of Disciplinary Appeals which found that, when considering the complaint and nothing else, it alleged a violation of the rules on its face.  The only effect of this ruling was to return he complaint to the State Bar for investigation.  The investigation is ongoing and no findings have been made one way or the other.

Meanwhile, Mr. Van Dyke had been offered and accepted a position with the Victoria County, Texas, Criminal District Attorney's Office on March 1, 2018, and the offer was rescinded on March 21, 2018.   Jason Lee Van Dyke believed that Mr. Retzlaff was behind the rescission of the offer. Jason Lee Van Dyke then sued Tom Retzlaff for defamation, asking for $10 million.  Mr. Retzlaff then filed with the court a settlement offer, demanding $75,000 from Mr. Van Dyke to settle the lawsuit, or stating he would take much more in an anti-SLAPP motion.  

From JLVD: This is false.  Mr. Retzlaff admitted in his bar complaint, dated December 20, 2017, that he was the person responsible for the rescission of the job offer.  This is how I obtained the legal basis to sue him over the rescission of that offer.  On or around March 27, 2018, he was also responsible for my termination from a different company due to his own postings online about the company.  He is being sued for that as well.  I didn’t sue him for $10 million: I sued for $100 million.  Mr. Retzlaff’s settlement offer has been received, and it has been rejected. 

An anti-SLAPP is a motion allowed in some states, including Texas, aimed to end a lawsuit quickly when it has been brought for the purpose of silencing speech on a public topic. SLAPP stands for "Strategic Lawsuit Against Public Participation." An anti-SLAPP motion that is won requires the Court to award sanctions to the defendant/ motion plaintiff.   In that settlement offer, Mr. Retzlaff goes into a full-fledged rant about the inappropriateness of someone who belongs to the Proud Boys and who makes racist posts on Twitter thinking he can work for a District Attorney's Office.  If you have always wanted to read a court filing that includes the word "shithead," you might want to look this one up. I'd post it here, but I do not want to get too far off-track from the topic of this trademark application.

So, that is the lowdown on who JLVD and the Proud Boys are -- now back to this trademark application.  Below, you can see the category of the goods or service is International Class 35, described as "Association services, namely, organizing chapters of a fraternity and promoting the interests of the members thereof."

Okay, so Proud Boys is a fraternity.   

Proud Boys Trademark Application showing description of the service

Proud Boys Trademark application stating JLVD  Holdings as owner.

Jason Lee Van Dyke lists himself as the attorney of record as well as the correspondent on the file.

Proud Boys trademark application, showing Jason Lee Van Dyke as both the attorney and correspondent.

When applying for a trademark, one must include a "specimen," which is an example of the mark being used in commerce.  In this application, Mr. Van Dyke provided 3 specimens, shown below.

The first specimen is shown above.  It shows the words "Proud Boys," a clenched fist, and the word "Uhuru."  As far as I know, "Uhuru" means "Freedom" in an African language, and is a symbol of the African Nationalist movement.  Okay, whatever.
 This second specimen looks like a picture of a rooster wind vane.

This last specimen shows a t-shirt with the words "Proud Boys," with an American flag in the background.  By the way, this appears to be a "fake specimen," meaning a stock photo from a t-shirt printing company, not a photo of an actual real, existing t-shirt. However, since it is one of three specimens, its inauthenticity would probably not kill the application.

The big question is whether the USPTO will allow a group that is said to be a racist hate group to have a trademark on the name of the group.  There are two legal factors in this.  First, is that the Trademark Manual of Examining and Procedure, Section 1203.01, as well as Section 2(a) of the Trademark Act, 15 U.S.C. §1052(a), prohibits trademarks that are "scandalous or immoral." The second factor is that the goods or services themselves must be legal.  For example, marijuana is federally illegal, and so trademarks cannot be registered where the good, or product, is marijuana.  

The mark "Proud Boys" is not in itself "scandalous or immoral," for example, as a pornographic picture  or words would be.  But the connotations might be scandalous or immoral.  A 2005 application for a trademark on the "Southern White Knights of the Ku Klux Klan" was rejected by the trademark examiner on the Section 2a basis, as follows:

"Section 2(a) Refusal
Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter.  Trademark Act Section 2(a), 15 U.S.C. §1052(a); TMEP §1203.01.  According to the attached evidence from the Internet, the proposed mark includes the wording KU KLUX KLAN and is thus scandalous because a majority of the public finds references to the KU KLUX KLAN offensive in light of their beliefs and historical behavior.

 To be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation,” in the context of the marketplace as applied to goods or services described in the application.  In re Mavety Media Group Ltd., 33 F.3d 1367, 1371 , 31 USPQ2d 1923, 1925 (Fed. Cir. 1994); In re Wilcher Corp., 40 USPQ2d 1929, 1930 (TTAB 1996).  Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.  Id.

 A mark that is deemed scandalous under Section 2(a) is not registrable on either the Principal or Supplemental Register.  TMEP §1203.01."

However, since then, the U.S. Supreme Court ruled in a case involving a rock group called the Slants that its name could be registered as a trademark, although the name was considered "disparaging" to Asian Americans.  However, that ruling was made under a different part of the Lanham Act, which forbids a trademark that brings disparagement upon any person, living or dead.  You can read about that case at this LINK, which includes the document of the ruling made the U.S. Supreme Court.  To me, it looks like this ruling does not affect the law that refuses trademarks that are scandalous or immoral.

"Proud Boys" does not have the history or notoriety of the Ku Klux Klan, so most likely the name itself would not be considered "scandalous or immoral."  A case could be made for that, however, based on information of the Southern Poverty Law Center site listings on both the Proud Boys and one of its subgroups called FOAK

Let's look at a few other groups that some might consider "scandalous," that have or are seeking to register trademarks on their names:

The OATH KEEPERS has a pending trademark application on these categories:

“Association services, namely, promoting the interests of current and formerly serving military, peace officers and first responders by advocating its members disobey any order that violates the Constitution of the United States; charitable services, namely, organizing volunteers to undertake charitable projects in the field of disaster response,” in class 35;

 “Training services in the field of disaster preparedness, civil defense operations and physical security,” in class 41.

The Southern Poverty Law Center also lists Oath Keepers as an extremist group, although the site gives no examples of any "hate" activities.  The Oath Keepers application was published for opposition on February 20, 2018, the same date as the publication on the Proud Boys application.

The BLACK PANTHER PARTY: Since 2012, the Dr. Huey P. Newton Foundation, Inc. has had a registered trademark on "The Black Panther Party" in these categories:

Educational services, namely, organizing and conducting educational youth conferences; museum curator services, namely, exhibiting to the public historical archives; developing tutorial and mentorship programs, namely, training youth in black history, conflict resolution and reading and writing; producing documentary films.

Books in the field of history, politics, art, philosophy, psychology, science and social commentary; Calendars; Graphic art reproductions; Newsletters in the field of history, politics, philosophy, psychology, science and social commentary; Newspapers; Pamphlets in the field of history, politics, philosophy, psychology, science and social commentary; Paper bags; Photographs; Posters; Stationery.

 NATION OF ISLAM: In 2010, Muhammad's Holy Temple of Islam on Stony Island Avenue in Chicago, Illinois, applied for a trademark on the words "Nation of Islam" as "religious instruction services."  The Trademark Examiner refused the application as being "merely descriptive," meaning the words "nation" is equivalent to "group of people" and "Islam" is a religion, so the trademark is merely describing the service being provided and does not have any secondary meaning.

However, the Trademark Examiner also found that the trademark "Nation of Islam" (NOI) had "acquired distinctiveness" over 5 years in continuous use, and offered that the trademark could be registered by the group if they responded within 6 months stating their acceptance and acknowledging that the trademark had been in use for 5 years.  The Attorney of Record never replied to the USPTO, and the application was considered Abandoned and Dead.   It seems odd to me that the trademark was not accepted by the NOI group on the basis of acquired distinctiveness. That Maryam Mosque on Stony Island Avenue is now considered the headquarters of the Nation of Islam and could rightly lay claim to the trademark.  The failure to respond within 6 months could have been an oversight or misunderstanding of trademark process.

The Southern Poverty Law Center considers Nation of Islam  an "extremist group." Despite the group's history associated with anti-White racism, the Trademark Examiner did not raise an objection of the trademark being "scandalous or immoral."

WHAT WILL HAPPEN TO THE PROUD BOYS TRADEMARK APPLICATION?  So far, it looks like it will be granted. The Trademark Examiner has not made a finding of the trademark being "scandalous or immoral," nor has there been an investigation as to whether the activities of the group are considered illegal.  

However, as they say, it's not over till the fat lady sings, so let's keep an eye out to see what happens.

This could happen.  
Note: If you are going to "borrow" my work, at least give me credit.