Tag: Carter Law Firm

  • Arizona’s New Revenge Porn Law

    Bound by Connor Tarter from Flickr (Creative Commons License)
    Bound by Connor Tarter from Flickr (Creative Commons License)

    Arizona has rejoined the ranks of U.S. states that have criminal law against revenge porn. This bill was announced with much fanfare in January, but there was barely a whisper when Governor Ducey signed it into law earlier this month. And because this law was passed on an “emergency” basis, it became effective the moment it was signed.

    The New Law
    A.R.S. § 13-1425 makes it illegal to intentionally disclose the image of an identifiable person in a state of nudity or engaged in sexual activity, when the person has an expectation of privacy, with the intent to harm, harass, intimidate, threaten, or coerce the depicted person. Some important things to note, “image” includes photos, videos, and other digital recordings; and to “disclose” an image means to display, distribute, publish, advertise, or offer.

    Offer. Just offering to share revenge porn could be a crime.
    Let that sink in for a minute.

    The Penalties
    If you are convicted of revenge porn using electronic means (email, text message, or social media) under this new law, it’s a Class 4 felony, which is punishable by 1.5 years in prison and a fine up to $150,000.

    If you’re convicted of threatening to post/share revenge without actually disclosing the image, that’s a Class 1 misdemeanor, punishable by 6 months in prison and a fine up to $2,500.

    Additionally, it will be up to the judge’s discretion to declare whether your crime makes you a registered sex offender.

    These are significant punishments for actions taken when you’re merely pissed off at an ex. It’s not worth the risk when the consequences are this severe.

    What if I Sext Someone a Naked Picture?
    One question I’m frequently asked is if someone texts or emails you a naked selfie, whether you can post that image online. If someone sends you an explicit image, they have not relinquished their expectation of privacy. If you post that image online or share it with others, it could be criminal revenge porn.

    If you believe you are the victim of revenge porn or threatened revenge porn, contact law enforcement for assistance. I’m curious to see the outcomes of the first cases tried in Arizona under this new law. If you have questions about social media law or internet privacy that you want to discuss with me, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

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    Ruth Carter

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  • Treat your Blog as a Business

    Office Hours by Tanel Teemusk from Flickr (Creative Commons License)
    Office Hours by Tanel Teemusk from Flickr (Creative Commons License)

    If you are making money from your blog, or you want to make money from your blog, you have a business. Treat it like the business that it is. You are no longer a hobbyist; you’re an entrepreneur.

    Form a Business Entity
    Creating a business entity is a relatively straightforward process. In general, it takes paperwork and money. Check with your state’s corporation commission or the secretary of state office to determine how much it will cost – because they significantly vary from state to state. If you have questions about whether you should form a limited liability company (LLC) or a corporation or whether you should form your business in your home state or elsewhere, as your accountant. Most clients I work with in Arizona opt to form Arizona LLCs.

    The purpose of having a business entity is to protect you (the person) from liability. With a proper business entity, if the company gets sued, only the business assets will be on the line. Your personal assets (home, car, stuff, dog, etc.) will not be at risk.

    Separate Bank Account and Credit Cards
    You begin to protect yourself from liability by forming a business entity. The way you perfect that protection is by having separate bank accounts and credit cards for the company. You need to have a clear delineation between where you the person ends and the business begins. This often referred to as maintaining the “corporate veil.”

    When you receive money as income, make sure business income passes through the business accounts. Additionally, when you spend money, use your personal accounts to pay for personal expenses (mortgage, groceries, etc.) and use the business accounts to pay for business expenses (office supplies, webhosting, etc.). To steal a line from Ghostbusters, “Don’t cross the streams.”

    See your Accountant
    Unless you’re a CPA, no entrepreneur should do their own taxes. You can probably make more money if you take the time you would need to do your own taxes to work on your business while someone else does your taxes for you. Having an accountant has saved me a lot of time and headaches. A good accountant is worth their weight in gold.

    I love my accountant. He makes doing my taxes so easy. He’s been there to answer all my questions about what can and can’t claim as business expenses and what other information I should track, like mileage.

    If you’re new to operating your blog as a business, or if you’ve been doing everything on your own up to now, do yourself a favor and hire a lawyer for an hour. Have a consultation to educate yourself about the legalities of running your business. As an entrepreneurial blogger, you want to be familiar with business formation, contract basics, privacy, copyright, trademarks, and the FTC rules regarding promotions and product reviews. There is a lot to know, but it’s not so complicated that a lay person can’t grasp and apply the concepts.

    If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about social media law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

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    Ruth Carter

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  • Five Ways to be Legal Killed for your Blog

    Batgirl on Jersey Ave. (behind bars) by margonaut from Flickr (Creative Commons License)
    Batgirl on Jersey Ave. (behind bars) by margonaut from Flickr (Creative Commons License)

    Yes, you can be legally killed because of something you post on your blog – just not in the United States. As a social media attorney, I deal with a lot of situations involving people behaving badly online, but none of them amount to circumstance where a post can result in crime punishable by death.

    There are crimes you can commit via your blog that are punishable by death in certain countries:

    Witchcraft: Saudi Arabia

    Membership in the Muslim Brotherhood: Syria

    Homosexuality: Afghanistan, Iran, Yemen

    Atheism: Afghanistan, Iran, Mauritania, Pakistan, Saudi Arabia, Sudan, The Maldives

    Opposing the Government/Treason: Bahrain, Belarus, China, Egypt, Ethiopia, Gambia, India, Libya, North Korea, Singapore, South Sudan, Sudan, Syria, United Arab Emirates

    This list makes me nervous for travel bloggers, including my friends The Opportunistic Travelers who trek all over the world. If you hit the authority’s radar in the wrong country, it could lead to some serious consequences – such as being caned in Singapore for graffiti. Before you pack your bags for your next adventure, make sure you research the laws that impact your actions in real life and online.

    If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

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    Ruth Carter

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  • Using Others’ Content – Legal Dos & Don’ts

    Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)
    Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

    I’ve received a lot of questions lately about how and when it is permissible to use other’s content without committing copyright infringement. This aspect of the copyright law is called fair use, and it’s a murky gray area. Each situation needs to be evaluated based on its merits as there few black-and-white rules regarding the legal use of others’ content.

    Sharing a Post
    If you like a post, you may want to share it with others. The legal way to do this is share a link to the original post with your audience. Sharing a link is the digital equivalent of pointing at something. It doesn’t create a copy of it. You will likely be accused of copyright infringement if you copy/paste the content from the original site to your website. Even if you have good intentions, you’re still interfering with the copyright holder’s right to control where their work is copied and distributed.

    If you want to share a copy of a post, ask for permission. I get 2-3 requests a year from people who want to print and share copies of a post I wrote for training purposes or as part of a seminar. I’ve always allowed this as long as they include an attribution so the audience knows where it came from.

    Commenting on a Post
    If you want to quote someone in a post and add your own commentary to their thoughts, that is generally permissible. This is one of the things fair use is meant to protect. It’s best to quote the original post, provide an attribution and a link to the site, and then add your thoughts about it. By adding commentary, you’re more likely to be contributing to the conversation rather than committing copyright infringement.

    One of the questions I was recently asked was whether they could write about the same topic as someone else. There’s no copyright protection for facts or ideas, so as long as you’re not copying someone’s working and claiming it as your own, you can write about the ideas as another writer, even without as attribution – unless you quote them.

    Using an Image
    This was an interesting question – someone asked when they write a post that comments on another person’s work, can they use the image from the original article. This raises a “red flag” for me because depending on the circumstances, it could be permissible or copyright infringement. If the article is about the image itself, then using the image is likely protected by fair use.

    Otherwise using the photo from another’s post may be copyright infringement, especially if readers are seeking the original post and accepting yours as a substitute. I could see readers being confused because the image on the two posts are identical. If the image on the original post is not as essential aspect of the story, I recommend using a different image. I usually get my images from Creative Commons that come with the license to modify and commercialize the original.

    Copyright and fair use are complicated issues that permeate the blogosphere. Before using another’s content, consider whether what you’re doing is likely to be legal and whether it might be best to request permission before using another’s content. If you have any question regarding using others’ content and fair use, please contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. If you want access to my exclusive content that’s shared only with my mailing list, please subscribe to the firm’s newsletter.

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    Ruth Carter

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  • Kesha v. Sony – Cautionary Contract Tale

    Microphone by Photo Cindy from Flickr (Creative Commons License)
    Microphone by Photo Cindy from Flickr (Creative Commons License)

    Last week, a New York Court refused to nullify the contract between recording artist Kesha and Sony, despite Kesha’s allegations that she was drugged and raped in 2006 by her producer, Luke Gottwald (a.k.a. Dr. Luke). Gottwald has not been charged with this crime. Kesha admitted she’s afraid of Gottwald, but she said if she doesn’t work with him (even though Sony offered to give her another producer), she’s worried Sony won’t promote her music properly. If everything Kesha said is true, she is trapped in a situation where she has to risk her personal safety for professional success.

    Why Sony Won
    The reason Sony won this case appears to be basic contract law – the verbiage of the contract wouldn’t allow for the change. When it comes to creating a contract, it’s a relatively low bar to clear to have a legally binding contract. And if the parties want to change the provisions later, they may only be able to do so under limited circumstances, such as by mutual agreement. If the contract is valid and the other side is not open to making changes, you’re stuck with the verbiage and the commitments of the original agreement. I suspect that’s what happened in this situation; Kesha signed 6-album deal, and her allegations that her producer raped her isn’t sufficient to force Sony to change the terms or release her from the contract entirely.

    Personally, I believe Kesha. It’s rare for a person to lie about being sexually assaulted. However, the law doesn’t have this luxury. The court can only make decisions based on what the parties can prove, so without a conviction or a confession, the court can’t determine if her allegations is sufficient to release her from this contract.

    Ke$ha by Becky Sullivan from Flickr (Creative Commons License)
    Ke$ha by Becky Sullivan from Flickr (Creative Commons License)

    Turn Back the Clock
    Given that hindsight is 20/20, what might Kesha have done differently when negotiating her contract with Sony? I am not sure it was wise for either party to commit themselves to a 6-album deal. Perhaps it would have been better for the artist to only commit to 2 albums and then renegotiate. Given Kesha’s young age when she signed with Sony, perhaps she, and other young artists, should have provisions geared towards their personal safety such as cameras that record all meetings and security or at least a personal representative all times that she’s working as well as provisions that address physical and emotional abuse. I also wonder if it wouldn’t have been prudent for both sides to have a provision that required regular drug testing to help prevent artists from getting into trouble and from being taken advantage of by people who should be protecting them.

    What Could Kesha do Now?
    Since a Kesha appears to be legally obligated to work with Sony and her alleged rapist, what should she do now to protect herself? Her safety should be the top priority. In regards to Gottwald, Kesha should never be alone with him. She should have security at her side at all times when he’s present. Gottwald should not be permitted to be within 10 feet of her, be able to contact her directly by phone or using any electronic means, or for any reason except as professionally necessary. I’m also not opposed to Kesha being legally armed (pepper spray, stun gun, etc.) if that makes her feel safer for the duration of her contract.

    Contracts are a beautiful thing when they are written properly. However, we can see from this case how it can be a disaster when parties don’t plan for the worst-case scenarios. (I agree that it is an incredibly sad that artists have to consider the possibility that they will be physically harmed by their business partners, but this case shows that it is something that should be discussed at the negotiation table.) If you have a question about writing effective contracts, please contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

    I’m also going to revive my newsletter later this year. If you want access to my exclusive content, please subscribe.

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    Ruth Carter

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  • How to Move a Business from California to Arizona

    Arizona - The Grand Canyon State Welcomes You by Peter Zillmann from Flickr (Creative Commons License)
    Arizona – The Grand Canyon State Welcomes You by Peter Zillmann from Flickr (Creative Commons License)

     

    UPDATE (1/10/2023): The process for moving a corporation from California to Arizona has recently changed! Read about the new, easier, more cost-effective way to move your company to Arizona here.

    California is so weird. (I grew up there. I can say that from experience.) It’s a weird state with weird laws.

    I recently helped a client move their corporation from California to Arizona. Arizona law allows you to simply transfer your company from your old state to your new one with a Statement of Domestication, if the state you’re leaving permits this.

    California doesn’t.

    Instead of it being a simple process, moving a corporation from California to Arizona is much more complicated, expensive, and time consuming. The easiest way to do it was to form a new company in Arizona and merge it with the California company, where the Arizona company was the surviving entity.

    Here’s how it’s done:

    • Create a new entity in Arizona through the Arizona Corporation Commission and pay the corresponding filing fee.
    • Create and sign a Merger Agreement.
    • Submit the Statement of Merger to the Arizona Corporation Commission and request a Certified Copy of the Merger Certificate. Pay the corresponding filing fees.
    • Once you receive the Certified Copy of the Merger Certificate, send it to the California Corporation Commission with their required filing fee.

    The total process took a little over a month – and we expedited the Arizona filings – and the client spent over $300 in filing fees between the two states. Had they been able to file a Statement of Domestication, the Arizona filing fee would have been only $100 ($135 if expedited it).

    Dealing with the California Corporation Commission wasn’t the easiest adventure. If I ever have a question and need a crystal clear answer from the Arizona Corporation Commission, I can go down there and talk to the clerk. I don’t have that luxury with California. One day it was impossible to get anyone at the California Corporation Commission on the phone and I ended up using their online contact form to get a call back 2-3 days later. That was a frustration that I’m glad I got to handle instead of my client.

    Moving a company from one state to another can be confusing and stressful – especially when you’re trying to sort out which process you have to use and which forms and filing fees you need to submit to each state. It’s not something I recommend doing by yourself. If you have a question about starting a company in or moving a company to Arizona, please contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • Model Release for TFP Photo Shoots

    Photo by Joseph Abbruscato, Used with Permission
    Photo by Joseph Abbruscato, Used with Permission

    Earlier this month, I had the pleasure of participating in an open photo shoot at a junkyard in Wittmann, Arizona. Dozens of photographers and models converged on this location to shoot around all day in and on the various broken down vehicles and other surroundings. It was a great event to meet other of photographers and models, and to work with the unique aspects of this setting.

    As we entered the junkyard, there were 2 large neon green handwritten poster boards that reminded us that we were entering at our own risk, cameras were in use, and that our picture may be taken without our knowledge. Additionally, they said “If you do something stupid we know where to bury you” and “Don’t do anything you don’t want your mom to know about.”

    These signs were brilliant and hilarious, but incomplete given that this notice was the closest thing we had to a model release for this event. As a model, I knew what I was getting into; but as a lawyer, it made me cringe.

    Photo by Bob Johnson, Used with Permission
    Photo by Bob Johnson, Used with Permission

    What is TFP?
    This was a TFP photo shoot – Trade For Photos or Time For Pictures depending on your definition. As I understand it, this means it was an open and free event where models and photographers could meet, shoot, and without any money changing hands. After the event, both sides will have had the experience, and the model will get images.

    This particular photo shoot was announced as a TFP photo shoot on Facebook without any additional documentation. Without a written contract to the contrary, the photographers are the copyright holder’s to every image they created that day. The models have no copyright rights to the work, not even a license to use the images in their portfolio unless they get that permission from the photographer. Since the models didn’t sign a model release, the photographers can’t sell any of the images they created without risking violating the models’ right to publicity.

    Writing a Simple Model Release
    An effective model release does not have to be long, complicated, or filled with legalese. It can be a simple contract that everyone has to sign prior to entering the shoot that lays out the ground rules for the event. The model release should clearly state what rights the models give the photographers and with the photographers give the models in return – such as a license to use any image from the shoot in their portfolio or online with an attribution.

    The release for this particular event probably should have included a liability waiver given that we were climbing in and on broken down vehicles and surrounded by broken glass and gagged metal. We all should have been required to sign off that we were responsible for our own actions and wouldn’t go after the owners of the junkyard or anybody present in the event that we fell or got tetanus.

    I wrote a simple one-page model release for a swimming pool photo shoot last summer that every model and photographer had to sign with their contact information. This put everybody on the same page from the beginning of the event, including the acknowledgment of the “No Jerks” rule, and since everyone provided their contact information, it was easy for models and photographer to connect after the event.

    The next time I see an invitation for an open TFP photo shoot, perhaps I should offer to write a simple release for the event, especially if I’m going to be a model there. If you have a question about copyright, model releases, or photography rights, please contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

    Lights Camera Lawsuit

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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    Ruth Carter

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  • Arizona Reviving its Revenge Porn Law

    Figure and Form by The Narratographer from Flickr (Creative Commons License)
    Figure and Form by The Narratographer
    from Flickr (Creative Commons License)

    Arizona lawmakers are trying to bring back the revenge porn law.

    The Arizona House of Representatives unanimously passed HB2001 last week. This bill would make it a crime to share “revenge porn” without the person’s permission. The previous revenge porn law was suspended when the court ruled that the verbiage of the law was overly broad. This new version has been tailored to better address the problematic behavior. If this bill becomes a law, it will be

    [U]nlawful for a person to intentionally disclose an image of another person who is identifiable from the image itself or from information displayed in connection with the image if all the following apply:
    1. The person in the image is depicted in a state of nudity or is engaged in specific sexual activities.
    2. The depicted person has a reasonable expectation of privacy. Evidence that a person has sent an image to another person using an electronic device does not, on its own, remove the person’s reasonable expectation of privacy for that image.
    3. The image is disclosed with the intent to harm, harass, intimidate, threaten or coerce the depicted person.

    If this law passes, it will illegal to post your ex-partner’s naked selfie online or show it to a friend, even if your partner voluntarily shared the image with you. The requirement of intent is beneficial; it will protect artists, galleries, and bookstores from criminal prosecution if they inadvertently use a nude image without a model release.

    If this law passes, the penalties will be similar to other sexual crimes:

    I hope this law passes. Based on the number of questions I get about revenge porn, this is a problem that is not going away on its own. If it passes, I hope there will be campaigns to quickly educate people – in every age group. If you have a cell phone, you have the means to create explicit images and send revenge porn.  Comprehensive, age-appropriate education needs to be disseminated in homes, schools, community groups, and via social media, because ignorance of the law will not absolve you from the consequences.

    Stay educated about social media law – this list of revenge porn laws in the U.S. is regularly updated. If you have a question about revenge porn, internet law, or photography rights, please contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • Legal Side of the No Pants Subway Ride

    No Pants Light Rail Ride 2014 - photo by Devon Christopher Adams (Used with permission)
    No Pants Light Rail Ride 2014 – photo by Devon Christopher Adams (Used with permission)

    Charlie Todd and Improv Everywhere announced the cities that are participating in the 8th Annual Global No Pants Subway Ride (15th ride in New York, 8th ride with global participation). On Sunday, January 10th, people all over the world will be riding their public transit sans pants, and acting as if nothing is out of the ordinary. Phoenix has participated every year with the No Pants Light Rail Ride, organized by Improv AZ.

    The No Pants Ride was my first flash mob and the event that launched my interest in flash mob law. Whenever I tell people about this event, one of the common questions I hear is, “Is that legal?” Given that this is a global event, the organizers and participants in each city should review their local laws related to this event and act accordingly. I’m sure it is not fun to be arrested when one is not wearing pants.

    Indecent Exposure
    Each city/state has its own laws regarding indecent exposure. In Phoenix, we don’t have to worry in general because it is not uncommon for people’s underpants to be bigger than what many people wear to the beach or pool. To violate the Arizona decency law, you have to expose your genitals, anus, or female areolas. This is why Improv AZ advises participants not to wear see-through fabric and to wear briefs under boxer in case the fly separates. Additionally, organizers in multiple cities have a “no thongs” rule. (Remember, you’re on public transportation. Do you really want your skin touching those seats?)

    Transit System Rule Violations
    Given that participants are expected to act as if nothing is abnormal, following the rules of the transit system is expected. Be courteous and don’t interfere with others’ ability to ride the subway, light rail, or bus. And the fact that your outfit doesn’t have pockets does not absolve you from the requirement to purchase a ticket.

    Disorderly Conduct, Public Nuisance, Riot
    Many cities have a broadly written catch-all for behaviors that may disturb the peace. If you’re going to organize or participate in a No Pants Ride or other flash mob, always apply common sense to your shenanigans. If you encounter law enforcement, be calm and respectful, and know what information you are required to provide. In the U.S., the police are allowed to briefly detain you if they suspect a crime is occurring or is imminent. And although you have the right to remain silent, you may be required to identify yourself if requested.

    Of course, the goal of any flash mob is to surprise and entertain an unsuspecting audience. Ideally, the police should never have to be involved. They have real crimes to investigate. It’s up to the organizers and participants to educate themselves on how to pull off their shenanigans without violating the law or anyone’s rights.

    I’m excited for this year’s No Pants Subway Ride. If one is occurring near you, I highly recommend you participate. If you want to chat about the legalities of flash mobs and pranks, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • Burning CDs = Copyright Risk

    CDs or DVDs by mlange_b from Flickr (Creative Commons License)
    CDs or DVDs by mlange_b from Flickr (Creative Commons License)

    For the last few weeks, I’ve received several questions about the legalities of burning entire albums from a friend’s CD collection and creating and giving mixed CDs to loved ones or as part of a corporate gift. These questions make me cringe.

    The U.S. Copyright Act allows you to make an archival copy of media you’ve legally obtained, in case something happens to the original. This is for personal use, not to be shared with others. It is perfectly legal to create a playlist or mix CD from your music collection for your personal use. If you allow friends to copy your CDs, that is likely an illegal copy (unless the music is so old that it’s in the public domain). By burning a copy of your CD, you are depriving the artist and their record label of the royalties they would have earned had your friend bought their own copy.

    To the person who asked me if they could make a mix CD of holiday music to send to clients and contacts, that really made me cringe. Not only would you likely be illegally copying and distributing music without a license, but you would also be informing your contacts through your actions that you either lack knowledge of copyright law, or you don’t respect it. Neither of those are a sentiment you want to have as part of your reputation.

    The exception to this situation is to get permission to make these CDs by obtaining licenses for each song. I work with an organization called Ignite Phoenix that puts on awesome shows that showcase speakers’ passions. At several events, we wanted to highlight the musical talent in the Phoenix area, so one of our organizers contacted local bands who agreed to have one of their songs featured on an Ignite Phoenix compilation CD that was handed out to every attendee.

    Remember, what you can legally do and what you may get away with are often different things. The only person who can come after you for infringement is the copyright holder. If they don’t know what you did or they don’t care, you won’t be sued for infringement. Although it is rare to hear about copyright infringement cases like this, they do happen. A woman in Minnesota was ordered to pay $1.9 million for illegally downloading 24 songs. The amount was later reduced to $220,000.

    The interaction between the Copyright Act and technology is often confusing, with many gray areas instead of black-and-white answers. If you have any questions about copyright and avoiding the risk of infringement, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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