when small business owners need to lawyer up

By Jessica Suotmaa 0

If you’re thinking about starting a small business, or perhaps you’re already the owner of one, hiring an attorney may not have crossed your mind. Perhaps you’re worried about the stereotype of how expensive attorneys can be, or maybe you’re a capable do-it-yourself person who doesn’t need help. Either way, this article will give a brief introduction on when and why small business owners may want to hire a lawyer.

1. Forming a Company

When thinking about forming a company, the best time to consult an attorney is before you register it. You don’t necessarily need a lawyer to fill out and file the paperwork for you, but for the tax and legal purposes, you would want to consult an attorney about which type of company structure will fit your business best.  An experienced attorney can tell you whether that non-profit organization designation is possible. A lawyer can help you review your business plan to determine whether you should form a limited liability company or corporation.  If you’re not sure what the differences and legal consequences for the different types of entities are, you may want to ask a lawyer.

We can tell you if that partnership should be a limited liability partnership. We can also tell you if you should continue with your sole proprietorship, or if you should file for s-corporation status.  Having an experienced attorney assess your business plan before you start your business can save you many headaches later down the road.

2. Drafting Contracts

Written contracts clarify what you’re agreeing on and with whom. Since contracts are legally binding, they offer guarantees to small business owners that will prevent future losses. As such, every small business owner should either hire an attorney to draft clear and concise contracts for their business partners, vendors, employees etc.

At the very least, every small business owner should hire an attorney to review a contract that has been offered to you.  There are many benefits to hiring an attorney to review your contract.  Firstly, it is usually less costly than hiring an attorney to draft a contract on your behalf as it often takes less time.  Secondly, the attorney may come up with questions that you will need to ask the other party, thus improving your contract.  Finally, the attorney can make additions or point out weaknesses that you may or may not want to address with the other party.

3. Handling Employee Issues

Assuming you heeded our contract advice and properly executed contracts for any and all business partners and employees, you shouldn’t have too many issues regarding termination. However, there could still be issues regarding payments, unlawful termination, discrimination, or harassment.  Consulting with an attorney can prevent further losses, and ensure that you are aware of the current employee rights.

4. Licensing

No matter the size of your business, you must follow government licensing regulations.  Depending on your location and industry, you may have to adhere to city, county, state, or federal regulations. By consulting an attorney experienced in your industry and located in your area, you can be prepare in advance for the paperwork and fee requirements for your business license.

5. Registering Intellectual Property

If your business has a special name or logo, you may want to register a trademark to protect your brand. If you don’t, you may find that similar business open with similar names or familiar colors and logos as yours, stealing your customers. Or perhaps you are creative and have creations that need to copyright protection. A good intellectual property attorney will assess your business plan, goods, and branding to determine what is the best strategy for protecting your intellectual property, brand, and business.

 

The issues listed above are just the top five issues on which small business owners should consult an attorney. You may have an issue that has not been listed, or a question you’re not sure needs an attorney. Feel free to comment below, or contact one of our experienced business attorneys for further assistance.

Instagram and Fair Use

By Lum Law Group 0

In my last blog I talked a little about copyrights and the First Sale Doctrine.  In this blog, I’d like to go back to Copyrights to discuss Copyright law and the Fair Use Doctrine.

Here is the situation:  Instagram, with over 1 billion monthly uses, has become a common place for individuals and companies to post original stories, pictures, and short videos about the life and business.  Let’s use a video as an example. What is the copyright protection to the creator of the video from Instagram? From other users who see the material? Let’s use a video as an example. What if another user reposts the original post?  Reposts the photo to critique? Uses the video outside of Instagram?

Under copyright law, the creator, unless he assigns his rights to someone else, or creates the video as an employee or “work for hire”, is the copyright owner.  But what happens when he posts that video on Instagram? Well first, under Instagram’s terms of service, Instagram receives a lifetime royalty free license for the video.  Thus if a user merely shares the original post, there will not be any copyright infringement by the user.

What if a user takes a portion of the video and puts it in a new post, with commentary about the video, for the purpose of critiquing it?  Under the Fair Use doctrine in copyright law (17 USC § 107), use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  Thus, a review of the video would not create an infringement. The idea being that the fair use is designed to give the public some information about that video. This is a clear example of “fair use.”

But what if the video is taken down and then a portion of it is reposted on some other medium? Or a portion of it is taken and reposted on another medium for other purposes, or “repurposed” for comparison to a competitor’s goods?   Well, in such situations, the “Fair Use doctrine” may not be so clear. If the use is clearly for commercial purposes, if there is some gain the person using the video, or part of it, then as you might expect, such a usage would probably be found to be infringing.

So, when seeing material on Instagram, unless sharing other’s posts, limit any uses of other’s materials for a specific purpose as outlined in “Fair Use Principles” above, or better yet, consult an attorney before you consider reposting anyone else’s materials.

copyright first sale doctrine

By Lum Law Group 0

With the explosion of the Internet and the different media outlets, such as Twitter, Instagram, Facebook, Youtube, Tik-Tok, just to name a few, the issues surrounding copyright ownership and rights have come to the forefront. But these also only reflect long time issues regarding copyright ownership. One such issue is what the doctrine of First Sale.

First, one who creates an original piece of art, such as a photograph, painting or statute, or a story or book, owns a copyright to that work. It is created upon the creation of the work. Unless the individual specifically sells the copyright rights to someone, only that individual has a right to make copies of his work. Most people have a general understanding of this.

Where things can get confusing sometimes is when an individual purchases a book, or a poster, or a piece of art. The question then becomes, what can he do with that piece of work? The obvious answer is that if he purchased that item, whether it is a book, poster or piece of art, he can do whatever he wants with it. Display it in his office, at his home, carry it around in his car and show it to his friends wherever he goes. This is covered in copyright law by what we call, the “First Sale” doctrine. Essentially, the holder of the purchased copy of a copyrighted work has the right to do anything he wants with that copy. However, that’s where his rights end as to the copyrighted work.

In one instance, a client has a poster that he used in his own artwork. His use of the poster in his own artwork is perfectly acceptable. He can sell the artwork as well. However, he cannot take photos of the artwork and then display that artwork on flyers or on his website. This is because his rights do not expand to displays of the poster. He does not have the right to advertise the copyrighted work. And in fact, he has repurposed the copyrighted work, or created what is called a “derivative” work. Without authorization, or proof that he purchased the copyright to the artwork, he cannot therefore otherwise display copies of his artwork in any other medium.

So, be careful what you do with Artwork. But what happens if someone posts a copyrighted work on Instagram and hashtags you on Instagram? And you want to repost it? That is a question for our next blog.

creative people need to care about their intellectual property

By Jessica Suotmaa 1

Risk of loss

There is always the risk you will lose the rights to your creations.

With patents, your invention can become a public invention with no exclusive usage rights.

With trademarks, your mark can become generic. In fact, “Google” might lose its trademark because they argue that the verb, “to google something”, is now part of the English language and culture. Other examples of trademarks that have become generic include: Aspirin, Dry Ice, Laundromat, Kerosene, Zipper, Heroin.  Once a trademark becomes generic is possible to lose your right to sue upon perceived infringement.

With copyrights, it is also possible to lose the right to sue.

 

 

Contact Lum Law Group and find out how to protect your intellectual property!

Protect your innovation!

By Jessica Suotmaa 2

Intellectual property refers to creations of the intellect for which a monopoly is assigned to designated owners by law. Intellectual property rights are the rights granted to the creators of Intellectual property and include:

  • trademarks,
  • copyright,
  • patents,
  • industrial design rights, and
  • in some jurisdictions trade secrets.
  • Artistic works including music and literature,
  • as well as discoveries,
  • inventions,
  • words,
  • phrases,
  • symbols, and
  • designs, can all be protected as intellectual property.

Intellectual property has a very broad scope and thus it can be said that Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications, and in some jurisdictions trade secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after the expiry of a patent protecting them) and database rights (in European law).

All businesses have intellectual property, regardless of their size or sector.

Thus, it goes without saying that all businesses have intellectual property, regardless of their size or sector. This could be the name of your business, copyright, designs, patents, and trademarks. Your Intellectual property is likely to be a valuable asset. Securing and protecting it could be essential to your business’ future success. In the other words, Intellectual property often translates directly to monetary gain. If you don’t know how to adequately protect your intellectual property, your business is at risk.

Intellectual property often translates directly to monetary gain.

The importance of protecting your Intellectual property can be more easily understood as follows: if you do not protect it, you will have to risk the losing one of the following:

  1. Branding: Establishing a strong brand is pivotal to business success. Protecting that brand is equally important. The name of your company and its logo are part of the branding that sets your business apart. Elements of your brand, from your company name to your logo can be subsumed and eroded. This can damage perceptions in the market of your quality, products, and reputation.
  2. Products: Unique investments that you’ve made developing technologies may be compromised; only through proper patenting, etc. can you ensure that you control and can market the products you develop.
  3. Ideas and thought leadership: Protecting original contributions to the thinking around your industry can be an important step to establishing your company as a market leader. Copyrights ensure proper attribution of your materials.

As such, there is no doubt that, in a business, intellectual property is everywhere. The name that you choose will be your trademark, even the smallest new process created within your firm may be patentable, and much of the creative work of your employees will be protected by copyright. Protecting your intellectual property rights is protecting your business, so you must claim your intellectual property rights before it’s too late.

Have questions? Talk to an experienced intellectual property attorney today! Contact us.

Definition of a copyright

By Jessica Suotmaa 0

Definition of a Copyright

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship”, including literary, dramatic, musical, artistic, and certain other intellectual works.  This protection is available to both published and unpublished works.  Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • reproduce the work in copies of phonorecords
  • prepare derivative works based upon the work
  • distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work
  • perform the work publicly (in the case of sound recordings) by means of digital audio transmission

(17 U.S.C. Section 102)

Who can claim Copyright?

“Copyright protection subsists from the time the work is created in fixed form.  The copyright in the work of authorship immediately becomes the property of the author who created the work.  Only the author or those deriving their rights through the author can rightfully claim copyright.” – 17 U.S.C, Section 201(a)

Term of a Copyright

For works created after 1978, the duration of ownership is for the life of the author(s) plus seventy (70) years after the author’s death.

For works that are anonymous, pseudonymous, or a work made for hire, the period of time is ninety-five years from the date of first publication, or 120 years from the date of creation, whichever is sooner.

Notice of Copyright

The following symbols are used to show copyright:

(c),  © , Copr. or Copyright

Examples:

  • “Copyright 2017 Albert Justin Lum”
  • “Copr. 2017 Albert Justin Lum”
  • “© 2017 Albert Justin Lum”
  • “Copyright © 2017 Albert Justin Lum”

Why Register your Copyright?

Without copyright registration, damages are limited to actual damages.

With copyright registration, one can obtain statutory damages, up to $30,000 per infringement for innocent infringement (“I didn’t know I was violating copyright laws”) to $150,000 per infringement for willful infringement (“Copyright? Who cares!) as well as attorney fees; and injunctive relief.

What does “Work for Hire” mean?

A “work made for hire” is–

  • a work prepared by an employee within the scope of his or her employment; or
  • a work specially ordered or commissioned for use…
    • as a contribution to a collective work,
    • as a part of a motion picture or other audiovisual work,
    • as a translation,
    • as a supplementary work,
    • as a compilation,
    • as an instructional text,
    • as a test,
    • as answer material for a test, or
    • as an atlas,
  • if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
  • For the purpose of the foregoing sentence, a supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

(17 U.S.C, Section 201(b))

Bottom line, if you hire an independent contractor to create something for you, make sure there is an agreement that whatever is created is made as “work for hire” and the owner of the copyright will be you.

 

Not sure if you should be registering a copyright? Perhaps you’re worried about breaking copyright laws? Read more on how we can help your business with intellectual property!

IP is the sword and shield of your business

By Jessica Suotmaa 0

Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols: names, images, and designs used in commerce.

IP is divided into two categories:

  1. Industrial property, which includes…
    1. inventions (patents),
    2. trademarks,
    3. industrial designs, and
    4. geographic indications of source;
  2. Copyright, which includes…
    1. literary and artistic works, such as
      1. novels,
      2. poems,
      3. plays,
      4. films,
      5. musical works,
      6. artistic works, such as
        1. drawings,
        2. paintings,
        3. photographs and
        4. sculptures,
    2. architectural designs.

Think of intellectual property as the “sword and shield” against your business competitors. By registering your intellectual property, you’re ensuring your “enemies” cannot take your weapons from you or copy your weapon technology.

 

More on how we can help your business secure your intellectual property!

clothing copyright zipper denim

By Justin Lum 0

Do you or your company make designs that are used in fabrics for sale to companies that export to the United States either fabric, or finished clothing companies in the United States?  Or are you a buyer of designs made by people outside the U.S.?  What you may not realize is that there may be companies in the United States that see those same designs and are then making slight variations of those designs and then registering copyrights in the United States on those variations to then accuse the imported fabrics of infringing the variations.

This may impact your company’s ability to sell fabric and/or garments in the United States.

How can you prevent this from happening?  By filing a U.S. copyright registration first.  Our office can help you to register copyrights for your designs in the United States.  This will not only protect your designs from being copied by companies in the United States, but provide assurances to your buyers in the United States and enhance your company’s reputation within the industry drawing companies to use your copyrighted designs because they know they are protected in the United States.  Contact us so we can determine what is the best and most economical way to protect your intellectual property.