Category: Featured Post

  • Starting a Business in Arizona

    Little Waitrose - Birmingham Snow Hill - Colmore Row - Now open - sign by Elliott Brown from Flickr (Creative Commons License)
    Little Waitrose – Birmingham Snow Hill – Colmore Row – Now open – sign by Elliott Brown from Flickr (Creative Commons License)

    Starting a business is exciting and can be overwhelming at times with everything that has to get done. I wish more business owners put more energy into creating structure within their business when they contemplate and launch their endeavors. It will save a lot of pain and frustration in the long run. If your plans for 2015 include starting a business, make sure these steps are on your to-do list in the first month or two of starting your company.

    Discuss with your accountant what type of entity you should form. Every company needs an accountant. In Arizona, you have the option to create a C corporation, an S corporation, a B corporation, or an LLC. I tell all my clients to meet with their accountant to make sure they select the right entity and understand the corresponding tax implications and other responsibilities.

    Check with the Arizona Corporation Commission and the U.S. Patent and Trademark Office to ensure that the name you want for your business is available. Many companies make the mistake of assuming that just because the website domain they want is available that their desired company or product name hasn’t been registered as a trademark for another company. If you use a name that has already been registered by someone else in the same or similar industry, they can make you rebrand.

    Submit the necessary paperwork and fee with the Arizona Corporation Commission. Consider filing your trade name with the Secretary of State’s Office as well. The forms to file your Articles of Incorporation or your Articles of Organization are on the Arizona Corporation Commission’s website. Make sure you get all the supplemental forms you need. The standard filing fee is $60 for a corporation and $50 for an LLC. The filing fee to register a trade name with the Secretary of State is $10. (Registering a trade name prevents other companies in Arizona from using the same name. It is not a substitute for filing a federal trademark.)

    Create a separate bank account for your business and set up your accounting system. It’s imperative that you keep your company’s corporate veil intact. I strongly recommend using an accounting system like QuickBooks. It makes life so much easier when you’re reviewing your books and preparing for taxes.

    If your LLC has more than one owner, create an operating agreement. If you have a corporation, write your bylaws. These documents will dictate how you will run your business, including how you will divide responsibilities and how you will address problems when they occur. They will help you decide in advance how you will address situations that are likely to occur.

    Create the contract templates you will need for your business. If applicable, write the terms of service for your website. If you are going to be hire to provide a product or service by multiple customers, you will want to have contract templates for those interactions. This creates consistency and uniformity which will help you build your reputation as well as be more efficient. You can customize your templates to suit your needs. I encourage business owners to look at others’ templates for ideas of what they might want to include but be leery of using someone’s template unless it’s been reviewed by your lawyer.

    Discuss what intellectual property your business will or might create and what strategies you will use to protect it. Every business has intellectual property: copyrights, trademarks, patents, and trade secrets. It’s often the company’s most valuable asset. It is important you understand what you have and the best ways to protect it.

    Ideally, you would have a lawyer involved from the beginning of your business, if only to tell you what you should do and when you’re better off hiring a lawyer to work for you. Even if you’re on a shoestring budget, you can find a reasonably priced business lawyer or resources for startups to assist you. It’s also prudent to schedule an annual consultation with your lawyer to educate yourself about what legal issues might be on the horizon and to get advice about what more you should do to protect your business as you have the ability to afford it. It’s easier and cheaper to prevent problems than to clean up the mess when something bad happens.

    If you want to chat with me about starting a business in Arizona, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • The Real Cost of a Social Media Misstep

    Money by Andrew Magill from Flickr (Creative Commons License)
    Money by Andrew Magill from Flickr (Creative Commons License)

    I was talking with some non-lawyer entrepreneurs lately, and I asked them what they thought would be the worst case scenario if their company broke the law via their social media, and they both responded that they would have to take responsibility for their mistake, apologize, and do some damage control. While I appreciate that these business owners appeared to have integrity and good intentions, I internally cringed that they both assumed that saying, “I’m sorry,” should be enough to fix a problem.

    I want to share some numbers for the costs a business could easily face if they violate a law with their online posts.

    Trademark Infringement – Cost of Rebranding
    Think about how much time and money you’ve spent selecting the name for your business or product, your logos, your slogans, your domain, and your website. Now, how would you feel if you had to do it all again? That’s what could happen if you select a name for your business or product that’s already been registered by someone else in your industry. In the best case scenario, they’ll send a cease and desist letter and demand that you rebrand. In the worst case scenario, they’ll sue you for infringement, and you could be spending tens of thousands of dollars in legal fees and fines.

    This is why I suggest companies check the U.S. Patent and Trademark Database for registered trademarks to verify the name or slogan they want to use hasn’t been claimed by someone else.   I’m also an advocate of registering your trademark as soon as you can afford it, so no one can restrict your use of your own name or steal it from you.

    Illegal Social Media Policy – at least $10,000
    Every company needs a social media policy, but employers need to understand that a federal law called the National Labor Relations Act (NLRA) that protect union activities also apply to employees talking about their work – even in public online forums. If you fire an employee for violating the company social media policy and it turns out your policy violates the NLRA, you could be ordered by the National Labor Relations Board (NLRB) to pay the ex-employee back wages, damages, and offer them their job back. My friend who works on these cases says if you have to pay the ex-employee $10,000, you got off easy.

    Copyright Infringement – $150,000 per Work Copied
    Many business owners don’t understand that they can’t use any image they find via a Google Image search. There are even marketing “professionals” who will tell you that you can use any image you find online as long as you give an attribution and a link to the original. Both of these are excellent ways to commit copyright infringement. And photographers are becoming more savvy about protecting their rights so if you use their work they may send you a bill or a lawsuit instead of a cease and desist letter or a takedown notice. In the worst case scenario, you may face a lawsuit for $150,000 per image you used without permission.

    Be careful if you outsource your content creation that your contracts clear state that the writer or artist who creates your content also indemnifies you if you are ever accused of copyright infringement because of something they created for your site or posted to your social media.

    Defamation – $2,500,000
    Defamation generally requires making a false statement about a person to a third party that hurts the person’s reputation. When I do talks about social media horror stories, I talk about a case where a blogger was sued for defamation because of one blog post and was ordered to pay him $2.5 million. 1 blog post. $2.5 million. (The case is currently up on appeal but I don’t think it looks good for her.) This is when little words matter because it’s easy to think you’re stating an opinion but your phrasing creates a statement of a fact – and if it’s a lie, it could be defamatory. Think before you post and check your sources.

    ruthcover smallerPlease note, these numbers do not include legal fees you could face in addition to damages if you’re sued because of your social media posts. The legal issues listed above only scratches the surface of what wrongs a person or company can commit online. The good news is most of these problems are preventable with education and diligence. I strongly recommend you stay abreast of what laws apply to your social media postings and developments in this area of law.

    If you need a legal resource for laymen on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to blogging and social media. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • No Path to Follow When You’re a Non-Traditional Lawyer

    Me and the Skies by Jesse! S? from Flickr (Creative Commons License)
    Me and the Skies by Jesse! S? from Flickr (Creative Commons License)

    Let me tell you about a pivotal day that happened early in my legal career. I was a second-year law student at Arizona State University. During a study break, I was hanging outside the law library with my classmate Julia who is also one of my best friends. Out of nowhere a thought popped into my head and I blurted out, “I don’t want to be a traditional lawyer.”  She responded with a look that screamed, “Duh.”

    It was an incredibly scary moment of clarity for me. By that point, I’d had enough experiences in internships and my pre-law school career that I knew a lot about what I didn’t want in a job. I wasn’t sure how I wanted my future to look, so I had no path to follow to make it happen.

    About eighteen months later, I had lunch with the family friend who would become my business mentor. I’d taken the bar exam but I was still waiting on my results. I told her some of my ideas about what I was looking for in a legal career and she bluntly asked, “Why don’t you just start your own practice?” The idea of opening a solo law practice excited and frightened me so much that I started sweating profusely. My dress was soaked by the end of that meal. I knew no one would hire me as a first year associate and let me continue to blog, write, speak, or dig into the depths of topics like social media law and flash mob law.

    Besides the basic information about how to start a law practice and practical advice from my mentor about accounting and marketing, I felt like I was operating without a map. It seemed like my classmates had clear paths to follow – paved by the lawyers who came before them – while I had an expanse of beautiful terrain to traverse, but not even a dirt path to guide me. My path and my destinations were for me to determine. This provided a tremendous amount of freedom in my life but also an unsettling amount of uncertainty. I’m grateful that I’ve found fellow adventurers – solo attorneys and other entrepreneurial minds – who have helped me along the way and who I continue to rely on for guidance and support.

    I will be the first to admit that I don’t always know what I’m doing. I have goals for the year, but I don’t have a ten-year plan. I let my experience, creativity, and passion guide me. And it’s scary to know that I don’t have a steady paycheck coming every month, but it’s the price I pay to have a life with autonomy.

    In everything I do, I try to remain teachable, strive for excellence, and learn all I can about the subjects that intrigue me like persuasive writing and how the law applies to new technology and business practices. I think there’s a lot of change on the horizon, and I want to be part of it.

    As I reflect on my life as a non-traditional solo attorney thus far, I find myself thinking of the John Shedd quote, “A ship in harbor is safe — but that is not what ships are built for.” I have an amazing opportunity to have the career and the life I’ve always wanted, if I’m willing to take the risk and go after it.

    And one of the things I want to do is share more about my behind-the-scenes journey – how I got here, what keeps me going, and the methods I use every day to make my business, and my life, a success. Stay tuned for more about my life as a non-traditional lawyer.

    If you’re interested in chatting more, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.  Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Being the Lawyer at Phoenix Comicon

    Mike Baron and I speaking on Comic Book Creator Rights at Phoenix Comicon 2014 - Mike says this photo is proof that the "gurus" could not levitate.
    Mike Baron and I speaking on Comic Book Creator Rights at Phoenix Comicon 2014 – Mike says this photo is proof that the “gurus” could not levitate.

    Earlier this month, I spent the weekend speaking at Phoenix Comicon. I was on two panels: Comic Book Creator Rights (with Mike Baron) and Copyright and Fan Fiction/Art (by myself). The lineup at this year’s event was amazing and included Stan Lee, Cary Elwes, Nathan Fillion, and the original Batman cast (Adam West, Burt Ward, and Julie Newmar). There were also workshops on writing and costume-making, a huge exhibitor room, and the best geeky game show – The Phoenix Ultimate Geek Smackdown.

    Mike Baron
    Mike Baron

    Needless to say, no one was coming just for me, and I didn’t have line of people waiting to attend either of my panels. But I had about 30 people at each session and those that came were truly interested in the subject matter.

    I heard a rumor before my first panel that my co-presenter wasn’t too enthusiastic about being on a panel with a lawyer. We’d never met before and I’m sure he did what I did, which was no advanced research. I bet he assumed I’d be boring, stuffy, dry, and wearing a suit. I suspect he didn’t expect his legal eagle co-presenter to be in jeans and a hot pink t-shirt that said GeekLawFirm.com.

    I got to our room before him and I did what I typically do when I present at Phoenix Comicon – I took off my shoes and plopped myself down on top of the table.  There’s something about sitting on the table that makes me feel energized and free-spirited.

    Ruth Carter
    Ruth Carter

    Unfortunately, Mike walked in through the back entrance so I didn’t get to see the look on his face when he first saw me. He said hello and took a seat behind the table but then I declared that we were doing our panel from on top of the table. He humored me and climbed up. (I’m not sure he knew what to think at that moment.) I spent most of our panel gleefully swinging my legs and they dangled over the edge of the table while we fielded the audience’s questions.

    About halfway through our panel one of the event photographers popped in to take some shots of us. He later told me that he’d never seen anyone present from on top of their table. He seemed pretty amused when he saw the two of us sitting cross-legged on top of the table. (I sit cross-legged when the photographer comes in because I think it looks cute in the photos, but I usually uncross my legs once they leave because it’s not that comfortable.)

    Our panel went really well. I provided some basic information about copyright, trademarks, and contract terms, and he got to talk about how these things actually play out in the professional comic writing world. I think it was great balance between academic and practical knowledge from both of our perspectives.

    I often forget that there’s a strong stereotype about what a lawyer is and that many people assume that I’m boring and that my material is dry. When people ask me to speak at their event, it’s not uncommon for them to say, “She’s a lawyer, but she’s not that kind of lawyer,” when they tell people about me.

    Hmm . . . maybe I should have business cards printed that say, “Ruth Carter, Esq., Not That Kind Of Lawyer.”

    Photos by Erik Hawkinson, used with permission.

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    Ruth Carter

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  • Is It Fan Art or Copyright Infringement?

    Toying with the Men by JD Hancock from Flickr (Creative Commons License)
    Toying With The Men by JD Hancock from Flickr (Creative Commons License)

    I have the pleasure of speaking about copyright and fan fiction and fan art at Phoenix Comicon this year. It’s always fun to hear about the projects fans are working on, and to see that so many of them are mindful about the copyright. I wish I had more black and white answers for them about what they can and can’t do.

    Fan fiction and fan art falls squarely into the murky realm of copyright and fair use. The owner of a copyright controls where and how their work is copied, displayed, distributed, performed, and what derivative works are made. Fan fiction and fan art can be derivative works but they also may be protected by fair use.

    Fair use is part of the copyright laws that acknowledges the fact that many works are inspired by past art. This law allows artists to build on existing works in creative and innovative ways. One thing to always remember is that fair use is a defense, not a permission slip. There is always a risk that the copyright holder will claim you’re infringing on their copyright and you’ll have to basically tell the court, “Yes your honor, I used their work but it’s OK because . . . .”

    When a court considers a fair use case, these are some of the main factors it considers:

    • Purpose and character of your use of another’s work (Is what you did transformative and did you do it for commercial use?)
    • Nature of the copyrighted work (What did you copy?)
    • Amount and substantiality of the copyrighted work used (How much of the original – quality and quantity – did you copy?)
    • Effect on the market (Would someone seek out the original and accept your work as a substitute?)

    These are some of the main factors, but the court can consider others if it wishes. This is also not to be treated as mathematical equation. Regardless of how many fair use factors favor you, you can always lose.

    For Phoenix Comicon this year, I wanted to create an easy mnemonic device that fans can use to remember the fair use factors; and here it is: PAIN.

    P = Purpose and character of your use

    A = Amount of the original used

    I = Impact on the market

    N = Nature of the work you copied

    Another thing to consider if you want to use another artist’s work is how the copyright holder historically responds to fan fiction and fan art. Some encourage it; some are OK with it as long as you’re not making money off of it; some are OK with it as long as it’s not sexual (i.e., slash fiction); and some dislike all fan fiction and fan art and will try to lay the smackdown on you if you create it.

    If you want to talk more about the legalities of fan fiction and fan art, come see me at Phoenix Comicon on Sunday, June 8th at noon. Both talks will be in North 130. I’m also doing a panel on Creator Rights on Saturday, June 7th at 10:30 a.m.  You can connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • How to Avoid Being the Next Social Media Horror Story

    Be A Social Media Super Hero for your Company - "Super Heros" by 5chw4r7z from Flickr (Creative Commons License)
    Be A Social Media Super Hero for your Company – “Super Heros” by 5chw4r7z from Flickr (Creative Commons License)

    I had the pleasure of presenting Social Media Horror Stories (and How to Avoid the Same Fate) at the Arizona Technology Council Lunch and Learn this week.  For those of you who weren’t there, I got to tell the stories of major missteps companies and individuals have committed with their social media activities and how to avoid the same mistakes. In every situation, the problems could have been avoided or mitigated with proper education, forethought, and applying common sense.

    This is my recommended follow-up plan for attendees:

    Register Your Trademarks
    To avoid problems with your competition, register the name of your company, products, blog, logo, and/or tagline with the U.S. Patent and Trademark Office. Without registration, the law only protects your right to use your trademarks in your established geographic market (which can be challenging to discern when your business is 100% online). You don’t want to find yourself in the Burger King situation where your market is limited or the Turner Barr situation where your business is essentially shut down because someone else registered your mark.

    Before you launch your next company, product, or marketing campaign, be sure to check the Trademark Office’s database to make sure that someone else doesn’t already have the exclusive rights to use your desired trademark.

    Check Your Contracts
    If you outsource any of your content creation or marketing activities, review your contracts carefully. Look for information about who owns the social media accounts and any content created on your behalf. Also look for provisions that address potential problems and whether you will be indemnified if you’re sued or get in trouble because of something a third party did on your behalf.

    Remember that website terms of service are also contracts. Make sure you understand the implications of using a social media platform or web-based service. Your site may also have terms of service that manage your relationships with your users. Make sure they’ve been written to suit your needs.

    Be Careful About Copyrights
    When a person owns a copyright in text or an image, they have the exclusive right to control where they work is copied, distributed, and displayed. If you want to use their work, you often need to obtain permission or risk being accused of copyright infringement.  I frequently see people pulling images from search engine results without considering the artist’s rights. Many people think they can use whatever they want as long as they give an attribution and link back to the original, and that’s just not true. If you’re looking for images for your site, consider using Creative Commons. I always use images that come with the license that allows me to modify and commercialize the artist’s work.

    When it comes to your own copyrights, decide in advance how you want to react when someone steals your work and plan accordingly.

    Check Your Social Media Policy
    I’m an advocate for the idea that companies should generally leave their employees alone when they’re on their own time, including what they do on social media. However, I’m also a huge proponent of the idea that every company needs a social media policy. Employees need to understand what their dos and don’ts are when it comes to their personal profiles and blogs, and employers need to understand that their social media policy needs to comply with the National Labor Relations Act. If your policy prohibits employees from saying anything damaging about the company online, it’s likely illegal and if you fire someone for violating an illegal policy, you could easily face tens of thousands of dollars in legal fees and damages. This is an area of law that is still developing, so please have  lawyer help you write your policy so it complies with the law.

    Review Your Crisis Response Plan
    For most companies, the question isn’t if it will face a crisis, but when. Every company should have plans in place for dealing with expected problems, including pre-writing content for the media and social media, so what when an problem occurs, everyone knows what their role and the protocol that everyone will be following. When you’re having your planning sessions, it’s a good idea to have your legal counsel present to assist from a legal perspective.

    If you want a resource for you or your staff regarding the legalities of social media, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you’re interested in guerilla marketing, my book on Flash Mob Law will be available on Amazon in June 2014.

    If you want to talk more about social media law, you can connected with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Legal Issues if you Outsource your Blog Content

    “Sam, Sam, the Gorilla Man” by Beth Rankin from Flickr (Creative Commons License)

    I don’t believe in outsourcing my blog content, but I understand that some people do because they’re busy, or they’re afraid they’re not a good writer, or they’re not dedicated to maintaining their site. Whatever the reason, it happens. If you fall into this boat, there are some legal ramifications you need to be aware of and plan for.

    Regardless of who you use to write your blog material, you should review every post before it goes up to ensure that the content is accurate, especially if you work in a field where misstatements can happen and readers could be harmed if they rely on your blog’s information.

    Copyright
    If you outsource your blog to a third party, your content creator owns the copyright in whatever they create for you unless you have a contract that states otherwise. Without this contract, they own everything and, at most, you have an implied license to use it on your site. If you want to repurpose a blog post, you have to get your writer’s permission; otherwise, you could commit copyright infringement by reusing the material from your own site.

    Indemnification
    When your writer creates a post, you often do not know what source material they used or where they got the images for each post. (Yes, every blog post needs an image.) There is always a risk that your writer will rip off someone else’s verbiage or image without your knowledge.

    If you do not review each post before it is released on your site, there is a risk that your writer could post something defamatory or harmful to another person. The alleged victim in that case might sue you for damages because they were injured because of your website. To avoid this problem, you can protect yourself with an indemnification clause that holds the blogger responsible for the damage they cause or at least requires them to a pay your attorneys’ fees and/or damages assessed against you.

    Clear Contracts
    If you work with a third party content creator, you want a clear contract that explains all the pertinent aspects of your relationship – what they will create for you, deadlines, who is responsible for website problems, if they’re allowed to write similar content for others, how you’re going to resolve problems, who will own the copyright, and if the writer can use posts as work samples if they assign the copyright to you.

    I love contracts. If the term “contract” is a turn-off for you, think of it as a relationship management document. All it is a document that lays out how your relationship is going to work. I made a video this week about how awesome contracts are.

    When you work with third party content creators, not having a contract is not an option. If you want to chat more contracts for your content creators, connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also check out my books about the legalities of blogging:

    Please subscribe to the Carter Law Firm newsletter and visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • How to Register a Trademark with the USPTO

    USPTO Seal by cytech from Flickr (Creative Commons License)
    USPTO Seal by cytech from Flickr (Creative Commons License)

    I’ve had several people ask me what is involved in registering a trademark with the U.S. Patent and Trademark Office (USPTO). Your trademarks include the names, logos, tag lines, and anything else you put on your products and services to inform customers about the source and quality of what they’re buying.

    Once you have a trademark registered with the USPTO, you have the exclusive right to use your trademark on your goods or services anywhere in the U.S.  If anyone tries to start similar business or sell a similar product with trademark that is too similar to yours, you can make them change it. The only companies that can have the same trademark as you are companies who were using the same trademark before you registered yours with the USPTO (i.e., the Burger King situation) or companies that use a similar trademark but on a product that is so different from yours that no one would think that they are owned by the same company (i.e., Delta Faucets, Delta Dental, and Delta Airlines).

    Here is the process that I go through to register a client’s trademark with the USPTO:

    1. Clarify what the trademark is and what products or services it’s being used on. You can only claim rights to a trademark that you’re using in commerce or expect to use within six months.

    2. Determine if the desired trademark is trademarkable – not every trademark is. Your trademark can’t be the product itself.

    3. Check the USPTO database to make sure no one else has registered the same trademark on a similar product as my client’s.

    4. Evaluate if others are using the same trademark without registering it with the USPTO. Once your have a registered trademark, these companies can keep using it in their established geographic market, but they can’t expand without rebranding.

    5. Complete the USPTO trademark application which includes determining the best description of the product and which class(es) of products we’ll be applying for. The USPTO charges a fee for each class of products you register the mark for.

    6. Submit the application to the USPTO with the filing fee.

    7. Wait three or four months for the USPTO to get around to reviewing your application. Yes, their backlog is that big. Once I submit an application, I typically check on it at the beginning of each month to see if it’s been assigned to a reviewing attorney at the USPTO.

    8. Respond to any Office Actions if we receive any from the USPTO. An Office Action is a communication from the reviewing attorney that says that there’s a problem with the application. They may request clarification, a disclaimer, or claim that the desired mark can’t be registered. Depending on what the USPTO and my client wants will determine how I respond and how much work will be required.

    9. Once the USPTO approves the mark, they will publish it on its official gazette. This puts everyone on notice that your mark is about to be approved. If no one objects within thirty days, your trademark will be registered.

    You should expect the entire registration process to take at least eight months, but it could be longer. Once you have a registered trademark, you can use the ® next to it. You will continue to have your trademark rights as long as you’re using it in commerce. The USPTO requires that you send in update affidavits periodically that verifies that you’re using the trademark. If you don’t use your trademark for three consecutive years, it will be considered “abandoned” and anyone can use it.

    If you’re looking for more information about what a trademark is and the benefits of registering it with the USPTO, I made a video about it.

    If you want to chat more about trademark registration, you can connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • The Legalities of having a Bat Signal

    The Bat-Signal? by graphiclunarkid from Flickr (Creative Commons License)
    The Bat-Signal? by graphiclunarkid from Flickr (Creative Commons License)

    Anyone who knows me will tell you that I have the palette of a five year-old and a massive sweet tooth – especially for ice cream. I would love to have a bat signal – well something like it but only in the shape of an ice cream cone. I want to be able to turn my bat signal on and have multiple people calling and texting to ask “What flavor?”

    Unfortunately, bat signals are illegal in Arizona. I was driving around this past December with a friend who remarked that a business that had moving spotlights pointing up at the sky was violating of a city ordinance. This inspired me to be a legal geek and look up why bat signals are illegal in the Arizona criminal laws and the Phoenix city ordinances. Here’s what I came up with.

    2012-12-14-0473 by Al Pavangkanan from Flickr (Creative Commons License)
    2012-12-14-0473 by Al Pavangkanan from Flickr (Creative Commons License)

    Disorderly Conduct (Class 1 Misdemeanor)
    Disorderly conduct is a catch-all law written to apply to activities that the powers that be dislike but where there isn’t a specific law on point. The Arizona disorderly conduct law prohibits excessive noise, but not excessive light. The law does prohibit “fighting, violent or seriously disruptive behavior,” but there may be an argument that a bat signal may be disruptive, but it shouldn’t be treated as being in the same category as physical violence.

    Public Nuisance (Class 2 Misdemeanor)
    I think this is what you might get if your neighbors call the cops on you. In Arizona it’s illegal to do anything that is “injurious to health, indecent, offensive to the senses or an obstruction to the free use of property that interferes with the comfortable enjoyment of life or property by an entire community or neighborhood or by a considerable number of persons.” If your bat signal is so bright that it interferes with your neighbors’ ability to enjoy their property, it could be illegal.

    Criminal Nuisance (Class 3 Misdemeanor)
    In Arizona, a criminal nuisance is “conduct either unlawful in itself or unreasonable under the circumstances,” such as a person who “recklessly creates or maintains a condition which endangers the safety or health of others.” I could see law enforcement making a strong argument that turning on a bat signal could be hazardous to other’s safety, especially if it limits people’s ability to see or disrupt traffic on the streets or in the air.

    The City of Phoenix has city ordinances that require outdoor lighting to be shielded and/or filtered – including spotlights. The City also has rules against disturbing the peace or creating a nuisance that is “offensive to the senses.” The rules for using a searchlight say you can’t have one within 150 feet of a residential structure, that it can only be used between 8 a.m. and 10 p.m., and it can’t contain any advertising. I don’t think my bat signal is advertising because I’d use to get people to bring me ice cream, not to sell anything.

    I suspect if you want to have a bat signal, you’d have to get a permit to use it only for a special event and then after that it could only be used for show. The Phoenix rules require you to file for a permit at least 45 days in advance. I can’t plan my ice cream cravings out that far. It’s too bad – it would have been awesome to have a bat signal.

    If you want to chat more about this topic, you can connected with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Crazy Contract Clauses

    M&M by madame.furie from Flickr (Creative Commons License)
    M&M by madame.furie from Flickr (Creative Commons License)

    I love contracts. I know this makes me a big legal dork, but I love writing them and reviewing them.

    A contract is the documentation of how a relationship is going to work and as long as the provisions aren’t illegal, you can put in whatever you want. There’s a lot of room for creativity, and I wish more people would take advantage of it. I was tickled pink earlier this year when I got to use the phrase “sexy bitch” in a contract. Granted, this was a contract between another legal blogger and me, so we had more license to have fun with it once we got the essential verbiage down.

    I worked with a woman earlier this year who was writing the terms of service for her website. She was overwhelmed and confused when she read other sites’ terms but relaxed when I explained what all the legalese meant and that she could write terms that were simple and in layman’s terms, similar to what Reddit does. A few months ago I walk talking with a business owner who was frustrated when his co-owner cancelled their meetings. Since they were both fans of craft beer, I suggested they put a provision in their operating agreement that the penalty for cancelling a meeting for a non-emergency would be a growler of beer.

    I did some digging and here are some of my favorite crazy provisions I’ve heard about in other contracts.

    1. Michael Jordan’s contract with the Chicago Bulls said he could play basketball anytime anywhere. He could play in exhibitions, pick-up games, etc. Apparently, he is the only player general manager Jerry Krause gave this provision to. I suspect other professional athletes have a lot of limits put on their activities to prevent injuries.
    2. The Houston Astros promised pitcher Roy Oswalt a bulldozer if they won the 2005 National League Series. The Astros won and the team gave Oswalt a Caterpillar D6N XL as promised.
    3. Van Halen’s rider required concert venues to provide the band with a bowl of M&Ms but no brown ones. This provision was quite ingenious. Van Halen’s show was a huge production that used 850 par lamp lights and at the time most venues weren’t used to them. If the band arrived and there were brown M&Ms in the bowl, it showed that the venue may not have read the contract carefully enough and they would do an additional check to make sure everything for the show was put up properly.

    I love drafting custom contracts and I encourage people to ask for what they really want and make them their own. If you want to chat with me about this or any other topic, you can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    You can also subscribe to the Carter Law Firm newsletter.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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