I’m regularly astounded by the stories I hear from friends, colleagues, and clients regarding job interviews. Many of the most frequently asked interview questions are off-limits. As a job-seeker it is essential that you be prepared to (politely) bypass such improper questions.

Much to my horror, I’ve seen all of these questions asked in interview situation – in one form or another – and often by C-level staff who should know better.

I’ve outlined the most common areas below, but as always, if you encounter a questionable situation your best bet is to contact an attorney and ask for his or her advice.

  1. How old are you? (Or other questions related to your age.)

You are not required to respond to any questions related to your age other than confirmation that you are over 18 years old. There’s also no need to provide a photo ID during the interview session. In this situation, I recommend you simply say that you’re (justifiably) concerned about the security of your personal information and politely decline to hand over the document until it is decided whether you will be joining the team or not.

  1. What’s your nationality? (Or other questions related to your ethnic heritage.)

Same goes with this question, you need not answer questions that relate to your nationality, citizenship status or your length of residence in the US or any other country. Just politely confirm that you are legally permitted to work in the US.

  1. Are you married? Do you have any children? (Or other questions related to familial status.)

Interviewers are are not permitted to ask you about your marital status, children, or about any future plans to start a family or have more children. My recommendation is simply to answer yes or no to questions about the existence of a family, and explain that your family life is private and you prefer not to share such intimate details with someone you’ve just met.

  1. Do you have any spiritual or religious beliefs?

These questions are completely out of bounds in a job interview. Your interviewer should know better. But if the issue comes up, you should not volunteer any information and politely state that your spirituality is a very private affair and you are uncomfortable sharing such intimate details with a stranger.

The above are the most common issues that pop up during job interviews. Since this is primarily an informational post, I’m glossing over a whole host of other issues in the interest of brevity. You should, however, be aware of other potential areas of HR exposure related to the interview process.

  1. Credit Rating
  2. Political Party Affiliation
  3. (Specific) Physical Disabilities
  4. Sexual Orientation, Height, or Weight
  5. Arrest, Court, or Arrest Records (Conviction records are permissible if they relate to the job function/duties)


Again, this is only intended to be an overview. If you have questions, feel free to reach out to me any time at


Today’s blog post is in direct response to questions I regularly field at conventions and workshops. This question continually hits home the fact that most creatives really have no clear idea what “Fair Use” actually is, and how it works. (Or if you’re completely ADHD / impatient – you can skip right to the video at the end.)


The Copyright Act gives copyright holders an exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. Fair use allows someone other than the copyright holder to copy some or all of a work – even if the copyright holder has not given (or refuses to give) permission.


Copyright law gives copyright holders certain exclusive rights, for a limited time, as an incentive to create works for the enrichment of society as a whole. In exchange for what is essentially a limited monopoly, the law expects that intellectual property creators will enrich society by contributing to the growth of science, education and the arts.

However, copyright law does not give copyright holders total control of their works. Copyrighted works transition to the public domain and become available for use by the public when the copyright term expires. But even before those works enter the public domain, the public is free to make ‘fair uses’ of copyrighted works.

I should note here that there is a deep ideological divide between creatives and the corporate entities that own most copyrighted works. This … disagreement … is related to the extreme lengths of copyright terms. For example, any work created after 2002 expires 70 years after the death of author. If the work is of corporate authorship, the term expires 95 years from publication or 120 years from creation, whichever expires first. Needless to say, there are a whole host of arguments against these terms – not the least of which is the fact that such lengthy terms appear, on their face, to contravene the law’s intent as an incentive to contribute to society as a whole. I can see how some might consider a 100-year monopoly “excessive” and only contributory to the enrichment of the copyright holder.

All that said, by carving out a space for creative uses of music, literature, movies, etc… during the period that a work is protected by copyright, fair use is intended to help reduce (if not relieve) these tensions between copyright law and the First Amendment’s guarantee of freedom of expression. The Supreme Court’s description of fair use is “the guarantee of breathing space for new expression within the confines of Copyright law.”


Whether a use is fair always depends on the specific facts of the use. Fair use is decided by courts on a case-by-case basis after considering four factors. These factors are found in Section 107 of the Copyright Act. I’ve broken them down (with examples) below. Note that some of these examples are applicable to more than one factor.

1. PURPOSE AND CHARACTER of the use of the copyrighted work:

a. TRANSFORMATIVE QUALITY – Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way? In my experience, this is where most creatives run afoul of the courts, which, in general, take a much more conservative view than artists.


A Google search engine turned the photos on a subscription-only website into thumbnail images for its search results. In this case, the court ruled that Google’s use of thumbnail photos was “highly transformative,” since the search engine changed the image’s original purpose of entertainment and aesthetics into providing Google’s users with links to images.

American artist Jeff Koons used a portion of a designer photo advertisement (a model’s legs in Gucci sandals) amongst a collection of iconic images in his painting, “Niagara.” In that case, the court held that the painting’s use of the copyrighted images was a transformative fair use, in part because it commented on fashion and consumer culture.

b.  COMMERCIAL OR NONCOMMERCIAL – Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.


A biographer of author Richard Wright quoted from six of Wright’s unpublished letters and ten unpublished journal entries. The court found that the biographer’s use was fair, in part because the biographer’s purpose was to educate and inform the public, and his use constituted less than 1% of Wright’s unpublished letters.

A major electronics manufacturer developed a video tape recording device that allowed the consumer to “time-shift”—record a complete TV program in real-time and hold the show for a later viewing. Several major film studios filed a copyright infringement suit against the electronics manufacturer claiming the device could be used for copyright infringement. In 1984’s Sony v. Universal Studios (the “Betamax case”), the Supreme Court held that time-shifting with a VCR qualified as fair use. The courts noted that the private, non-commercial home taping of free television programs for later viewing was not infringing and did not hurt the market value of the copyrighted material.

2. NATURE of the copyrighted work:

a. A particular use is more likely to be considered fair when the copied work is factual rather than creative.


A book publisher used several stills from the famous 1963 Zapruder footage of President Kennedy’s assassination for the historical book Six Seconds in Dallas. Time Inc., the owner of the footage, sued the book publisher for copyright infringement. In that case, the court ruled that the publisher’s use of the stills was “fair and reasonable,” in part because the use was based on a factual and historical news event.

3. AMOUNT AND SUBSTANTIALITY of the portion used in relation to the copyrighted work as a whole:

a. How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its “heart,” will count against fair use. But how-much-is-too-much will generally depend on the purpose for which the work is intended. For example, parodies may need to make extensive use of an original work to get the point across.


 The Washington Post newspaper used several brief quotations from Church of Scientology texts that were posted on the Internet. The court found the use to be fair, in part because the newspaper excerpted only a small portion of the work and the purpose was for news commentary.


a. This factor applies even if the original is given away for free. If you use the copied work in a way that takes market share away from the copyright holder, that will weigh against fair use. Uses of copyrighted material that serve a different market, audience or purpose are more likely to be considered fair.


An episode of “Family Guy” made fun of comedian Carol Burnett’s image and signature characters from her 1960’s comedy variety show. In that case, the court ruled that the show’s use was fair, in part because the “Family Guy” episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market.

These factors are guidelines, and they are not exclusive. Generally, courts are most interested in whether or not the individual making use of a work has acted in good faith. Have they sought the permission of the holder? Are they actual artists or scientists acting for “the good of humanity” – or are they businesses, looking to “cash in” on someone else’s intellectual property?

Finally, if you are still confused about fair use, and how it relates to you as a creative, I submit to you a wonderful video, created by Professor Eric Faden of Bucknell University. This video serves the triple purpose of 1) inspiring the title of this post, 2) entertaining and educating at the same time, and 3) causing Disney’s lawyers an apoplectic fit.



The Federal Aviation Administration recently announced a rule requiring drone owners to register their UAS (Unmanned Aircraft Systems) by Feb. 19, 2016. Drone owners must register through a website unveiled, yesterday, Dec. 21 2015.

If you, like many of my clients (and friends) are a hobbyist – which is to say that you do not use your UAS for commercial purposes – and your UAS weighs more than 0.55 lbs. (250 g) and less than 55 lbs. (25 kg), you should register here: Unmanned aircraft weighing more than 55 lbs. cannot use this registration process and must register using the FAA’s Aircraft Registry process.

The registration fee is $5 per UAS owner, in line with current FAA requirements for registering an aircraft. To encourage registration, the FAA will refund the $5 fee for drones registered in the first thirty (30) days of the site’s availability, through Jan. 20. Registration will cover all of an owner’s drones weighing between 0.55 pounds and 55 pounds.

If you use your UAS for commercial purposes, there’s a paper application, but the FAA themselves have indicated that, “The online registration system does not yet support registration of small UAS used for any purpose other than hobby or recreation – for example, using an unmanned aircraft in connection with a business. The FAA is developing enhancements that will allow such online registrations by spring of 2016.”

The FAA said the rules are meant to educate drone operators who don’t necessarily realize it may be unsafe to fly a certain way, such as near an airport, while allowing enforcement and easier identification of operators behind reckless drone flights.

To register, a UAS owner must provide his or her name, physical address, email address, and credit card information to process the payment. After registering, operators will receive a certificate of registration with a unique identification number, which the owner must then clearly display on all UAS’s. Registration isn’t required at point-of-sale, but is mandatory before drone operation.

Registration must be renewed every three years, and prior to selling your drone, you should remember to remove your personal registration number.

Civil penalties for violation of these rules could include a fine of up to $27,500, and criminal penalties include a fine of up to $250,000 and three (3) years in jail.


There is no end to the ways that unscrupulous people will attempt to defraud others – especially at this time of year. Please keep these in mind this holiday season:
If you get a shipping notice claiming that you have a package from UPS, FedEx, USPS or DHL but you need to click on a link for details, DO NOT CLICK on the link. Go to the courier’s website to authenticate the message.
Think before you click a link, especially when you have been searching for popular items and see these items for bargain prices. Often these are rogue retailers that will deliver malware when you click on these links.
Another reminder to never enter credit card information on any page that does not start with https://.
These may seem like “old” tips but it is startling how many people are still caught in these scams and the tips bear repeating.


While the title may be flippant, the subject of this entry is near and dear to my heart and is the result of a conversation (admittedly over drinks) with a group of professional illustrators at this year’s Illuxcon.

Let’s start with a question. In today’s marketplace where the download of an “illegal” MP3 could bring down the wrath of the RIAA – what organization provides similar protection for illustrators’ intellectual property? For the fantasy and sci-fi community? There are several professional association entities out there, but as I’ve discovered, none of them seem to provide the quick and dirty support that most independent illustrators need.

Three drinks in, Jim Pavelec sat down. I’d been told that we should meet since I was just launching my solo firm and he had this thing called PACT that I should hear more about. Sitting around that table at a hotel bar in Allentown, PA, I learned that most illustrators need simple contract documents and clear tools they can use to protect and enforce their rights.

So, I volunteered to provide a few.

You can learn more about PACT here, but the real point of this article is the following summary of your IP rights if you are an illustrator, painter, designer, writer or other creative. In keeping with the “quick and dirty” theme, and without excessive legal jargon, here’s what you need to know:

1. You need to be absolutely sure the infringer is really infringing. Is it actually your work? If so, proceed to #2.

2. If you’ve sold or licensed all rights in the work to a client, you should notify that client immediately. They are responsible for protecting the value of their IP.

3. If the work is yours, it is your responsibility to enforce your rights. No one will do it for you.

4. If your IP is in a physical product, sold in stores, or about to be sold in stores, contact an attorney immediately. At this late stage of f the game, you should not attempt to confront the infringer on you own.

5. If your IP is on a website, I’d still recommend the attorney route, but you can (and should):

a. Immediately contact the website owner and send a cease and desist letter;

b. Immediately contact the website host and send a DMCA takedown notice.

6. In all cases you need to set a hard deadline (I recommend a week) for a written response.

7. If your communication(s) are ignored, you need an attorney. Do not be afraid of this. Many will take these cases on a contingent fee basis – though you can expect to pay them a good chunk of whatever they are able to recover.

8. If all else fails, have your attorney (you have hired one by now, right?) write a final letter before filing a suit against the infringer.

9. Finally – do not be afraid of litigation should it come to that. It is your attorney’s job to worry and be stressed about your case. Not yours.

Top Ten Employment Law Myths

Over the last decade or so, I’ve heard many of my clients and friends tell stories about how they “know their employment rights” – and, invariably that “knowledge” comes back to bite them in the proverbial posterior. The problem is, most of them have learned what they know from Law & Order, Boston Legal and (I shudder to think of this one) Ally McBeal.

In contemplation of our favorite courtroom dramas, I offer the following summary of the top ten Employment Law Myths.

1. Wrongful termination

If you live in Montana an employer can only fire you for just cause. Otherwise, your employer can fire you for any reason or no reason at all. On the whole, employers don’t have to have a good reason to terminate employment, and they certainly aren’t required to give you a reason.

2. Retaliation

Another common misconception is that an employer can’t “retaliate” against an employee. There is no law prohibiting an employer from retaliating against an employee for reporting or objecting to policy violations, ethical violations, bullying, or general crappy behavior. There are certain protections that apply if an employee does something that puts him or her in a legally protected category. Examples are, objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

3. Breaks

Believe it or not, there is no federal law that requires employers to offer any work breaks for anything, even meals. Many state laws do require work breaks, but it’s not a majority, and no law requires bathroom breaks – but that gets into the realm of health issues and OSHA likely applies. If the employee is a nursing mother, she’s entitled to an unpaid break to express breast milk, assuming the employer meets certain size standards.

4. Hostile work environment and harassment

Another common misconception is “hostile work environment”. This, on its face, is not illegal. Harassment is not illegal. Bullying is not illegal. That said, however, hostile work environments or harassment based on race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal. Employers are free to play host to any type of terrible work environment they care to – so long as any discrimination is not based on a protected class.

5. Free speech and online speech (the Facebook myth)

Only government employees have free speech protections, and even those are limited. Employees may be fired for their speech either in the workplace or outside the workplace if they work for a private employer. In certain limited situations, speech is protected: (i) for speaking on behalf of coworkers in order to improve work conditions, or (ii) for objecting to something illegal.

6. Privacy (Email, Phone, Paper & Internet)

I’ve seen this one more times than I care to remember. There is no law giving employees any privacy protection in their work emails, documents or internet usage. If an employer is going to listen into or record phone calls, there are some legal restrictions (which are too complex to cover here). Your take-away here is that, as an employee, you should never assume anything you do at work, about work or on an employer’s computer, phone or network is in any way private.

7. Discrimination

This one is, hands down, the most common misunderstood aspect of employment law. Discriminating against you for being you is never illegal. Favoritism, nepotism, being a complete a$$hole are not illegal. Protection from discrimination based on a protected class, that is to say discrimination that is based on age, race, sex, religion, national origin, disability, color and/or genetic information, is illegal.

8. Right to your HR file

There is no federal law requiring private employers to allow employees to inspect or make a copy of their own personnel files. Some states do require employers to allow employees to look at their files, and fewer still allow them to copy items in their files. In most instances, the only way for an individual out what’s in their HR file is to file a suit and demand it via Discovery – or to subpoena it in unemployment or other proceedings.

9. Right to work

Right to work does not mean an employer can’t require the signature of a non-compete agreement or restrict an employee’s ability to work for competitors after they leave. There are state-based exceptions and guidelines (which, again are too complex to cover here). What right to work does mean, however, is that employers can’t make employees join a union in order to work there. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.

10. Individual liability

I’ve heard many a bitter ex-employee talk about this one. As much as it may give you joy to sue your boss personally, you probably can’t. Most Federal and State laws simply don’t allow it. The one exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what’s the point? Unless they’re rich, they’re probably what we call “judgment proof” and you likely wouldn’t be able to collect anyhow.


In the spring of 2000, I wrote a paper for my Space Law class. The title of the paper was “Beam Me Up Scotty – There’s No Intelligent Life Down Here!” It was an analysis of the applicable law in a “first contact” situation. (I know, pretty dorky, right?)

But I’ve a lifelong love of things sci-fi and this week’s news gave me renewed hope that space travel might be a commonplace occurrence in my lifetime.

A new law expected to pass presidential approval this week would exempt private spaceflight ventures from a wide range of government oversight. H.R. 2262, which has been passed by both the House and Senate (they’re currently “resolving their differences”), would exempt private space travel ventures like Blue Origin, SpaceX and Virgin Galactic from federal regulation for the next eight years. The bill helps ameliorate their fears that close oversight by the FAA or other government agencies will seriously slow innovation.

In general, I’m all for government oversight, but I’m willing to set that aside in this instance. SPACEFLIGHT people!

There appears to be a second benefit in H.R. 2262, primarily for private space exploration ventures. In addition to expanding the lifespan of the International Space Station into the 2020s, it will also give commercial firms the rights to resources they extract from asteroids and other space bodies. This is huge news for companies that plan to mine for rare minerals on asteroids.

Under the new bill, the FAA will still have some oversight to regulate commercial space travel, such as issuing rocket launch licenses.

In all honestly, I’m probably much more excited by this stuff than I ought to be, but given that I carry around what is effectively a Star Trek communicator in my pocket, and I can access all the knowledge of humanity on that device with a few simple commands – I’m disappointed that I can’t Uber myself a flight to the moon yet. Here’s hoping that it happens soon!

Give Us Your Money And Go Away!

Today we’re going to talk about classes of stock. Boring right? (Okay, there really isn’t anything clever I can say here that will instill you with a burning passion to learn about classes of stock, but I’ll try to keep it simple, brief and pithy – and maybe you’ll take something useful away with you.)

Yesterday, I received an email from Square, Inc. You know them. They make those little things that plug into your mobile devices so buyers and sellers can transact credit card purchases at conventions, pop-up clubs and the renaissance festival. The email offered me a chance to “own part of Square” through purchasing some Class A common stock in their upcoming initial public offering (IPO), since I’m a current user of their product. (My wife and I use Square all the time in our indie film production company, Cavegirl Productions.)

Being the kind of guy that I am, I clicked on the link to their draft prospectus. Here’s what I focused on, and what this post is about:

We have two classes of authorized common stock: the Class A common stock offered hereby and Class B common stock. The rights of the holders of Class A common stock and Class B common stock are identical, except with respect to voting and conversion rights. Each share of Class A common stock is entitled to one vote. Each share of Class B common stock is entitled to ten votes and is convertible at any time into one share of Class A common stock. After the completion of this offering, our existing stockholders will continue to hold all of our issued and outstanding Class B common stock and will hold approximately 99.1% of the combined voting power of our common stock. As a result of their ownership, they will be able to control any action requiring the general approval of our stockholders, including the election of our board of directors, the adoption of certain amendments to our certificate of incorporation and bylaws, the approval of any merger or sale of substantially all of our assets, and certain provisions that impact their rights and privileges as Class B common stockholders.” (emphasis added)

Interesting no? The Class B, which is not offered, gets all the power and control, and the Class A gets to “own a piece of Square” – for what that might be worth.

The bottom line here is that most of the people who are going to “bite” at this offering probably haven’t read the prospectus – and may not understand that they don’t have any real way to participate in the company’s governance. What’s actually happening here is that the company’s Board, controlled by the venture capital firms that invested in Square (Victory Park Capital) are maintaining control of the company and all decisions it makes.

Your takeaway? If you’re going to buy stock, make sure you read the d**m prospectus!

The Option Pool Shuffle Pt. 2

Today’s post continues our discussion of the “Option Pool Shuffle.” Last time we discussed the two general approaches – VC friendly and founder friendly.

To educate by means of example, consider the following:

Buffy has a lumber company, Stakes’n’Stuff LLC, and she’s managed to negotiate a $2M (2 million dollar) investment on an $8M pre-money valuation by playing Angel Investments and Spike Capital against one another. She returns to Sunnydale excited to tell the rest of the gang that they’ve created a company worth $8M.

Xander, Willow and Rupert want to know what their shares are worth, and Buffy explains that since Stakes’n’Stuff’s outstanding shares are 6M (6 million) – the investors must be valuing the company’s stock at $1.33 a share. She expects the calculation will look something like this:

$8M pre-money ÷ 6M existing shares = $1.33 per share

Unfortunately when they finally get the VC’s term sheet, it lists the share price at $1.00. Willow becomes distraught. The term also includes language to the effect of, “The $8M pre-money valuation includes an option pool equal to twenty percent (20%) of the post-financing, fully diluted capitalization.”

So what happened?

Most VCs will try to control the creation of your option pool in a manner that benefits the VC first. Their pre-money valuation will always include a large, unallocated option pool for new employees. It is essential, as a founder or owner of a company, that you control the option pool and the manner in which it is created.

What Spike actually offered Buffy was not tantamount to an $8M valuation. What the term sheet actually revealed was that Spike Capital really thought the company was worth $6M, but they wanted to add $2M in new options, add that to the “value” and call the total $8M the “pre-money valuation”. Rupert explains that what the calculation actually looks like is:

$6M effective valuation + $2M new options + $2M cash = a $10M post-money valuation; or,

         60% effective valuation + 20% new options + 20% cash = 100% total.

Sneaking the option pool in the pre-money lowers the founders/owners effective valuation to $6M. The actual value of the company Buffy built is $6M, not the $8M the Spike keeps talking about – and the new options lower Stakes’n’Stuff’s share price from $1.33 to $1.00.

VCs benefit from the pre-money option pool in many ways.

First, the VC will make sure the option pool only dilutes common shareholders. If it came out post-money, the option pool would dilute both the common and preferred shareholders proportionally.

Second, the VC-created option pool eats into the pre-money more than you’d think. To the uninitiated, it seems smaller because it is presented to founders/owners as a percentage of the post-money even though it is allocated from the pre-money. Using the example we used above, the new option pool is 20% of the post-money, but is actually 25% of the pre-money!

Third, if Buffy sold Stakes’n’Stuff before a further round of investment, all un-issued and un-vested options would be cancelled. This “reverse dilution” would benefit both preferred and common stock proportionally – even though the common stock holders paid for all of the initial dilution in the first place – and would effectively, upon exit, put more money back in the investor’s pockets!

Moreover, if Buffy had to do a B or C round of investment, the A and B (and potentially C) VCs will all try to play the option pool shuffle against one another. Unfortunately, all the unused options that you “paid” your VC for in the A round will go into the B option – and so on and so one. The shuffle allows your existing investors to avoid playing the shuffle and, over and over again, avoid dilution at the company’s expense.

Welcome to the wonderful world of venture capital funding!

The Option Pool Shuffle Pt. 1

(Credit where credit’s due – this post was inspired, in large part, by an excellent and still relevant post available at Venture Hacks.)

For this inaugural, two-part, blog entry I thought it appropriate to start with a topic near and dear to my heart, and to those of others involved in the startup world – the “option pool shuffle”. Every few months I find myself explaining to a client or friend exactly how venture capital entities (“VCs”) would like to “help” you structure your startup’s employee stock option plan (“ESOP”).

Broadly speaking, you can go one of two routes – VC friendly or founder friendly.

The VC friendly approach provides the VC with a greater share of the company. The share options are allocated first, and then the VC is allocated its shares. The impact is that the VC share allocation dilutes the share option pool and the VC ends up with a greater percentage of the company.

The founder friendly approach gives the VC a smaller share of the company. The VC is allocated its shares first. The impact is that the VC is diluted by the new share option pool, consequently the VC ends up with a smaller percentage of the company.

We’ll examine the ramifications of each type of plan in our next post. Which I’m sure you’ll all await with bated breath.