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Race to the Bottom

I’d hesitate to call this a “good” article, but it is something I’ve been intensely interested in for some time: States Vie to Shield the Wealth of the 1%.

Intellectual Property II: The Wrath of Con(s)

This past weekend I was privileged enough to attend a wonderful pop culture convention that shall remain nameless. While participating in the excellent panel discussions, film screenings, and photo ops, I crystalized an idea I’d been flirting with for a while now: How to attack the problem of copyright infringement by vendors at conventions.

All it took was a walk through “Artist Alley” to really understand the magnitude of the problem. Without exaggeration or hyperbole, 70-80% of the vendors and artists were selling infringing intellectual property (‘IP’).

Wrath of Con Pic 01

(This artist/vendor even uses the name “Avengers” in one of the prints on the left.)

 

(I doubt this artist/vendor has been granted the appropriate licenses for Flash, Deadpool, Agent Carter… oh and Star Wars.)

(I doubt this artist/vendor has been granted the appropriate licenses for Flash, Deadpool, Agent Carter… oh and Star Wars.)

There are multiple, overlapping problems here, and I’m not sure that there’s an easy way to unravel ye olde Gordian Knot. Here are the issues as I see them:

  1. Artists/vendors are selling items that clearly infringe the copyrights of others.
  2. Artists/vendors often do not understand how IP rights work, and more troubling, often don’t understand the risk they’ve taken on by selling potentially infringing items at a convention.
  3. Artists often rely on selling such work to make ends meet.
  4. Convention organizations, with few exceptions, turn a blind eye to their vendors’ sale of infringing material.
  5. IP rights holders aren’t enforcing their rights – or perhaps not even paying attention to the issue.
  6. Consumers (that is to say con-goers) either don’t understand that what they’re doing is supporting theft, or they don’t care.

 

The obvious legal answer is that all conventions should stop allowing the sale of infringing items, and attendees should refuse to purchase them. But I’m not naïve enough to think that attendees or organizers are going to stop any time soon. Indeed most conventions simply shift the risk onto the vendors and artists. In my experience, their agreements include a clause similar to:


“Vendor/Artist certifies that, i) it is and shall remain in compliance with all State and local laws, regulations, statutes and rules, ii) it has the legal right to sell and offer for sale the products it sells at the Convention, and iii) it shall indemnify, defend, and hold harmless the Convention and any of its officers, directors, employees, and agents from claims in any way related to Vendor/Artist’s violation of any term of this Agreement.”

So what’s the answer? Is there an answer? Who is the most at risk here, and how can everyone – artists, vendors, attendees, and organizers – protect themselves?

In the discussions below, I’ve attempted to provide some suggestions intended to help artists, vendors, and con-goers alike navigate their way through this … ridiculousness.

 

  1. Artists/vendors are selling items that clearly infringe the copyrights of others.

 

This is a statement of fact. It is indisputable. 

(I’d be floored if this artist had been granted a license to reproduce and sell Yoda prints. And Indiana Jones. And Xena.)

(I’d be floored if this artist had been granted a license to reproduce and sell Yoda prints. And Indiana Jones. And Xena.)

 

(Just because you’ve ironically put Boba Fett “hunting” Carmen San Diego and Waldo in your painting, you haven’t satisfied any requirement(s) for a fair use exception.)

(Just because you’ve ironically put Boba Fett “hunting” Carmen San Diego and Waldo in your painting, you haven’t satisfied any requirement(s) for a fair use exception.)

 

I regularly hear uneducated arguments, often citing “fair use”, but in 99.9% of the situations I’ve encountered these arguments are utterly inappropriate.

They often go something like this:

  • One-of-a-kind, original drawings and paintings of someone else’s IP are okay.
  • Since everyone does it, copyright holders must not care.
  • If I only sell it at conventions, and not online or in stores, it is okay.
  • If I’m not making a profit, it is legal to draw someone else’s characters.

 

Each and every one of these is false. Let me repeat that. Each and every one of these is false. Any questions?

In any event a claim of fair use is always a question of law and artists/vendors can potentially be dragged into costly litigation over their mistaken belief that there is some sort of legal precedent that allows them to violate someone else’s IP rights. (For a detailed discussion of “fair use” please see one of my previous articles, here.)

 

  1. Artists/vendors often do not understand how IP rights work, and more troubling, often don’t understand the risk they’ve taken on by selling potentially infringing products at a convention.

 

The arguments I’ve listed above, and that I regularly hear from artists/vendors, are clear and convincing evidence that most of them really don’t understand what they’re doing. (At least one hopes so – though there are those who know exactly what they’re doing and just don’t care. See section 5, below.)

Here’s a quick and dirty test anyone can perform at any time to answer questions about fan art or infringement issues:

Question:        Do you own the IP in question?

          A1: Yes.

Then you may do as you wish with the IP.

          A2: No.

You have no right to profit from work featuring the IP, and almost no rights to create infringing work not for profit either.

          A3: No, but I have a license with the IP rights holder.

Then you may do as you wish with the IP, subject to the terms of the license.

 

  1. Artists often rely on selling such work to make ends meet.

 

From a purely legal perspective, these artists are violating the copyright of the IP rights holder. Replication, or the creation of a derivative work, of someone else’s IP is infringement.

Copyright is a powerful thing. It was intended to protect authors, but today is mostly used by corporations to protect the rights transferred to them from artists via “work for hire” contracts. We’ll get deeper into the corporate side of things later, but keep that in mind for now.

As a result of my personal and professional experience, my discussions with clients, my discussions with artists, and many detailed reviews of illustrator’s contracts, it is clear that the industry is in need of better contracts/agreements that commission a work (or employ an artist).

Moreover, given the conspicuous absence of litigation by major corporations, indeed their conspicuous absence in weighing in at all, it stands to reason that they really should have no problem with ceding some small rights back to the artists.

Wizards of the Coast/Hasbro has taken a good first step here by allowing Magic the Gathering (‘MTG’) artists to reproduce their work on playmats. Prior to 2016, the vast majority of MTG art was work-for-hire, and the artists retained few or no rights.

 

  1. Convention organizations, with few exceptions, turn a blind eye to their vendors’ sale of infringing material.

 

This is also incontrovertible truth. Here’s an excerpt from San Diego Comicon’s vendor agreement:


“15. Copyrighted Materials
Exhibitors shall not play or permit the playing or performance of, or distribution of any copyrighted material at the Event unless it has obtained all necessary rights and paid all required royalties, fees or other payments.”

As you can see, they’ve shifted any risk from themselves onto the vendors and artists. And perhaps rightly so. Is it the job of convention organizers to enforce the law? Con organizers have many, many responsibilities – is enforcing IP law one of them?

From a legal perspective, it isn’t their responsibility – assuming they’ve shifted the risk to the vendors and artists. Which most of them have done.

Now that said, I do believe that Con organizers have a responsibility to require vendors and artists remove infringing products from the vendor room floor – once they’ve been notified that it’s there.

By way of illustration, here’s an excerpt from the Otakon artist alley agreement. I had the opportunity to speak with some of the Otakon staff this weekend, and they actually do police the floor for obviously infringing work. While not perfect, their agreement goes go a long way towards protecting IP rights, in that they regularly request artists and vendors remove infringing works.


“The artist bears all responsibility and risk for the items brought for sale at Otakorp, Inc. Any questions regarding this policy will be resolved by the Department Head of Artist Alley, in consultation with Otakorp Inc.’s lawyer when needed. If a piece of art appears to be very similar to a licensed, copyrighted, etc. piece of art, the artist may be asked to remove it from display and sale at the discretion of the Department Head. The Department Head’s decision is final.” 

 

  1. IP rights holders aren’t enforcing their rights – or perhaps not even paying attention to the issue.

 

This is troublesome. It leads to the situation we find ourselves in today. In my experience, the combination of artists and vendors who are ignorant of IP law, and the lack of any legal repercussions or penalties, leads to flagrant and widespread IP violations.

Take the recent case of Tim Lundmark. He appeared at Minneapolis Comic Con selling unlicensed prints of many artists’ work. Aldrin Aw / Buzz, who has worked on titles such as X-Factor, Justice League, etc… reported him to the Con organizers, posted extensively on social media, and had the story picked up by Bleeding Cool.

I can’t even begin to imagine what it must feel like to have worked on a popular comic, not own the work I did (most in-house artists are employees, and their art is the property of their employer), and show up at a convention to see someone selling blurry, photocopied prints of my own work – that I’m not even permitted to sell?!?

Unfortunately, to date no significant action has been taken by any of the larger corporate IP rights holders. Until the large corporations get involved, and make it economically risky to the convention organizers, things are unlikely to change. What it’s going to take is something like the Star Trek Axnar case – which is to say something attached to six-figure dollar signs – before they sit up and take notice.

 

  1. Consumers (that is to say con-goers) either don’t understand that what they’re doing is supporting theft, or they don’t care.

 

This, to me, is the crux of the issue. Fans attend conventions because they love the characters, shows, and art. When addressed one-on-one, the vast majority of fans are law-abiding folk who love their favorite comics, characters, and games. I suspect if you asked each individual con-goer, very few, if any, would agree that they’re happy to support what basically amounts to theft.

I submit to you that the answer here, as in so many other arenas, is education. Fans, con-goers, artists, vendors, and convention organizers alike need to understand that much of this type of work is unlawful.

So how do we educate? San Diego Comic Con brought in John Wells, Deviant Art’s General Counsel, who gave an excellent talk on the subject. More conventions should take a page from this book, and include these excellent discussions in their programming.

In all honesty, I expect that nothing’s going to change until someone gets made an example of. Given that Disney is now the parent company of Marvel – the “example” may come sooner rather than later. (In case you’ve been living under a rock, Disney controls its brand and IP with an iron fist.) I urge you … don’t be the horrible, horrible example.

Practical Advice for Artists and Fans

If you’ve read this far, I’m assuming you’re still interested and wondering what you can do to help.

If you’re a fan it is incredibly easy. All you have to do is ask one of these simple questions of the artist or vendor.

  1. “Do you have a license for this print/t-shirt/tea-cozy?”; or
  2. “Did you create that character/image/item and keep the appropriate rights?”

 

As a fan, you bear part of the responsibility to help fix the problem. Don’t buy art or products that rip off the stuff you love.

If you’re an artist or convention vendor, you need to educate yourself with regard to intellectual property. After all, as an artist, your job is the creation of intellectual property; and as a convention vendor, your job is selling items that contain someone’s intellectual property. This is the world you live in. It is in your best interest to understand it!

  1. Ask yourself, “Do I have the right to use/paint/draw/sell this IP?” (And be honest with yourself. It is unlikely that you’ve substantially altered the IP enough to satisfy any fair use requirements. As I mentioned above, if you want to delve deeper into fair use – I’ve written a fairly extensive blog post about it here.)

 

  1. Read the contract or agreement that describes what you’ve agreed to by selling/attending each convention. As we’ve seen above, it is likely you’ve agreed that anything you offer for sale will not infringe the IP rights of another, and that you’ll pay for (the legal jargon here is indemnify and defend) any suits or claims against the convention. Do you really want to have to pay a Comic Con to defend a lawsuit brought by Disney, Hasbro or Warner Brothers?

 

Finally, a last word of advice for artists. If you’re at a convention and you see someone selling what appear to be unauthorized copies of a work – say something to the organizers, take a picture, and bring it to social media. But most importantly, keep it civil. If it ever comes to litigation, you want to make sure you look like a rational businessperson. Not a foul-mouthed cretin. It is much more likely (at least in today’s environment) that the issue will play out in the court of public opinion.

Things aren’t going to change overnight, but I believe that with a concerted effort on the part of artists, fans, IP rights holders, and convention organizers, we’ll get there eventually.

As always, if any of you have more questions, or find yourself in need of legal advice in this arena, my door is always open.

C IS FOR COOKIE!

Have you ever wondered why (in the last few years) you’ve been barraged with “cookie” notices on many websites you visit? Well you’re not alone. Today’s blog post will explain more than you really wanted to know about cookies. (Note that this post assumes a basic understanding of the way the internet works … which may be assuming a lot. Additionally – if you do this stuff for a living, you’ll find this semi-remedial.)

At its core, this is about privacy. Why? Because a cookie is a file placed on your computer by a website you visit, which it then also retrieves when you return to the site using the same browser. It can contain any text based information, but it cannot be used to spread viruses or other malicious software. It can, however, be used for a wide variety of purposes – many that could be considered terribly invasive to your personal privacy. (To find more about cookies, have a look at Cookiepedia – a leading resource on the subject.)

Although cookies are in many ways essential to the modern internet, ever since they were created a debate has been going on about their impact on the privacy of web users. They are basically a way for a website, and the people who own that site, to store and retrieve data about the user or their interaction with the site. They do this, generally speaking, to either alter what that person sees, or record their activity (which is to say, the pages they visit, how long they spent on a site, etc…). Cookies are central to the modern web experience. So although they are not inherently ‘bad’ there do engender valid privacy concerns.

This all started in the 90’s in the European Union (“EU”). The European Commission (“EC”) promulgated a data protection directive that regulated the processing of personal data within the EU. The intent behind the directive was to increase the options available for consumers to protect their data privacy. Both then and now, many websites collect(ed) user data without any user awareness, and every day more and more companies are learning to exploit the value of that data.

The directive hoped to enable consumers to strike a new bargain with these businesses – requiring businesses to inform consumers of what is being gathered, and enabling them to choose to participate in this or not, at their discretion. We should note here that the EU directive does not simply apply to cookies. It includes Flash cookies, HTML5 local storage, etc… indicating that it isn’t good enough to just re-implement the tracking some other way outside of cookie storage.

Now that we understand the what and the why, to whom does this directive apply? The answer – any website available in the EU.  (Or in legalese – the “…processing of personal data by any person whose activities are governed by Community law”.) Given the “messy” nature of the EU, the EC left it up to each member country to legislate and enforce this directive. To say that enforcement and legislation across the EU has been … spotty … is an understatement.

So where does that leave us – the users of the internet and the beneficiaries of the EU’s privacy directive?

Apparently with a banner on every website we visit, notifying us that the site uses cookies. Whether you want to block them or not is your choice. Though I suspect if you’re reading this on Facebook or Linkedin – they’re currently enabled.

(I would be remiss if I failed to note that there will be serious revisions of the EU privacy directive in the coming months. I could have gone into them here, but perhaps that’s another blog post…)

 

 

MRS. INTERVIEWEE – ARE YOU GOING TO HAVE ANOTHER BABY?

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 seth@sethpolanskylaw.com.

A FAIR(Y) USE TALE

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.)

BACKGROUND

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.

WHY ALLOW FAIR USE?

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.”

HOW DOES A COURT DECIDE IF A USE IS “FAIR”?

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.

Examples:

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.

Examples

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.

Example

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.

Example

 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.


4. EFFECT OF THE USE ON THE POTENTIAL MARKET OR VALUE of the copyrighted work.

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.

Example

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.

 

UNMANNED AIRCRAFT SYSTEMS (OR, IN PLAIN ENGLISH, “DRONES”)

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: https://www.faa.gov/uas/registration/. 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.

‘TIS THE SEASON FOR SCAMS

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.

STOP! ART THIEF!

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.

SPACESHIP!

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!