Tag: Carter Law Firm

  • Woman Jailed for Refusing to Deactivate her Facebook Account

    When I Was Just a Baby by Phanatic

    I saw a disturbing article on Mashable yesterday about 18 year-old Paula Asher. Asher lives in Kentucky and according to the article, she published the following post on Facebook: “My dumbass got a DUI and I hit a car LOL.”

    Asher was charged with multiple crimes when she hit a car that contained 4 passengers – thankfully none of them were hurt. The victims contacted a judge after they saw the post. The judge ordered Asher to deactivate her Facebook account. When Asher refused, the judge sentenced her to 2 days in jail for contempt of court. The judge didn’t say under which law she could give Asher such an order.

    I don’t know Kentucky law, but I can’t think of any laws Asher broke with her post. She was talking about herself and didn’t mention anyone by name so I don’t think the Facebook post constitutes defamation or invasion of privacy. Intentional infliction of emotional distress generally requires outrageous behavior that was intended to result in harm. I think Asher’s decision to make such a post was stupid, but not outrageous.

    Did the accident victims have a claim against Asher because of her post? I could see them being offended by the “LOL” which suggests Asher didn’t take her DUI or accident seriously, but I don’t see where someone would think it’s illegal. I can see Asher’s defense attorney being annoyed with her because she basically admitted guilt in her post. If the passengers in the other car were going to go after her for damages, I could see them pursuing extra damages for pain and suffering because of her post. I don’t see where a judge would think they had the authority to make Asher remove the post or delete her account based on this post. But there might be something in Kentucky state law that gives the judge the authority to do what she did.

    I suspect Asher was not represented by counsel when she appeared in court. I would expect her attorney to question the basis for the judge’s authority to give such an order to deactivate Asher’s account and to hold her in contempt for refusing to follow it.

    It would be hard to hear the order the judge gave Asher and not respond with “You’ve got to be joking” or something along those lines. I think the proper response is closer to “Your Honor, I understand that these people are upset by my Facebook post and will delete it if you wish. It was a mistake and I’m sorry. Would you please tell me what law gives judges the ability to force someone to deactivate their entire account because of one misguided post?”

    Stories like this make me question whether judges receive proper training about social media sites and their authority over other people’s accounts. Stories like this are also good reminders about the importance of privacy settings and to be thoughtful when you post because you never know when you’re going to be confronted with your own words.

    If you have questions about social media law, contact a social media attorney (like me) in your community.

    Feel free to connect with me via Twitter, Google+, Facebook, and 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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  • Options When Someone Violates Your Creative Commons License

    Portion of C.C. Chapman’s Twitter feed – September 10, 2012

    I saw the following tweet the other day by author C.C. Chapman: “Since my photos are licensed under “non-commercial” is this a legal use of my Chevy Volt photo by Yahoo?” The question was followed by a link to an article on Yahoo Auto about GM’s report regarding whether Chevy Volts are being sold at a loss. The photo accompanying the article is C.C. Chapman’s photo of a Chevy Volt that he published on Flickr with a Creative Commons license.

    This license requires anyone who uses the image to give C.C. Chapman the attribution, only use it for non-commercial use, and not alter the photo in any way. If the image appeared on Chevrolet’s blog, there would be a strong argument that Chevy uses its blog as a marketing tactic to get people to buy its vehicles; therefore every image on the blog is being used for a commercial use. In that case, the use of the image would have violated the license and C.C. Chapman’s copyright.

    However, Yahoo published the article. Yahoo isn’t trying to sell cars. It makes money by selling ads and it may charge advertisers based on the number of hits a page gets. C.C. Chapman could make an argument that Yahoo’s use of his photo had a commercial goal; but Yahoo could fire back that it was reporting the news so its use of C.C. Chapman’s photo was protected by fair use. Yahoo could show that it has a history of news reporting and that its articles are accepted as news, not a marketing ploy.

    But let’s say this photo appeared on a commercial website in violation of the Creative Commons license. That’s copyright infringement. What could C.C. Chapman do about it?

    1. Do nothing and be happy about the exposure.
    2. Get the photo removed by sending a DMCA takedown notice.
    3. Send the company a cease and desist letter.
    4. Send a bill with a licensing agreement and a letter that says the publisher has committed himself to paying a licensing fee since he already used the photo.
    5. Sue for copyright infringement.

    A lot of people would be happy about the exposure and may opt to do nothing. The downside of doing this is someone else could use your work and make a valid argument that your inaction set a precedent that others could use their work for commercial purposes. You may want to send a letter that offers to license the photo in exchange for the exposure and states if the company doesn’t license it then they have to remove it. That way, you will still get your exposure but you still exert your copyright rights in your work.

    If you have questions about how to protect your intellectual property rights, contact an intellectual property attorney (like me) in your community.

    Feel free to connect with me via Twitter, Facebook, and LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

    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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  • Police Arrest Would-Be Prankster for Conspiracy

    Jumping Jacks by Flabber DeGasky
    Jumping Jacks by Flabber DeGasky

    I recently read a news story out of Buffalo, NY about a 17 year-old being charged for conspiracy, criminal nuisance, and disorderly conduct for posting an event on Facebook that invited people to assemble at the Millennium Hotel in Cheektowaga, NY. The reporter called the planned event a “flash mob,” but given that the article said that organizer’s “intent was to cause damage and create chaos,” I doubt that this was a plan constituted a real flash mob. It sounds like an invitation to commit a crime such as disorderly conduct or rioting. I could not find the event on Facebook, so I can’t say for certain what the planned activity was.

    Either way the lesson is the same: If you plan an event which involves a crime, you’re asking to be charged with conspiracy and solicitation. Even if you only meant to do something fun, you could still be charged. Even if you cancel the event and nothing bad happens, you could still be charged. Let’s look at what it takes to get charged with each crime.

    Conspiracy
    In Arizona, you need three things to be commit conspiracy:

    1. Two or more people,
    2. A plan between them that involves committing a crime, and
    3. One overt action in furtherance of that crime, even if that act is not a crime.

    So if you and your friend planned to kill someone and one of you bought a shovel to bury the body, you could be charged with conspiracy. Likewise, if your plan was more innocent, like planning a pillow fight where the rules say you can hit anyone in the vicinity with your pillow whether they have a pillow or not and you buy a new pillow for the event, that could also be conspiracy.

    Solicitation
    It’s also very easy to commit solicitation in Arizona. All you have to do is ask or encourage someone to commit a crime. Even if the person declines the invitation, it’s still solicitation. Asking someone to kill your spouse, regardless of their answer, is solicitation. Likewise, inviting people to participate in a prank that involves touching people in any way without their consent might be solicitation to commit assault. Putting up a Facebook event and making it public could be enough for a solicitation charge.

    These types of crimes are easy to commit, especially if you don’t realize that what you’re planning to do is illegal. Your ignorance of the law will generally not protect you from the consequences of your actions. It’s because of this that it’s imperative that you contact a flash mob attorney (like me) when you are beginning to plan your event. Even if the illegality of your event is brought to your attention and you cancel it before anything bad happens, you could still face serious criminal charges.

    If you want to know more about committing conspiracy and solicitation by planning a flash mob, I made a video about it. You can also view it here.

    Feel free to connect with me via Twitter, Google+, Facebook, and 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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  • Is Your Non-Compete Agreement Enforceable?

    Spider-Man vs. Batman by JD Hancock, Non-compete Agreements
    Spider-Man vs. Batman by JD Hancock

    When you started your job, did you read your employment agreement before you signed it? What about the employee handbook – did you read it or just sign the form that says you read it? There’s a good chance one of those documents contained a non-compete agreement (NCA).

    NCAs are a necessary evil, especially in this day when employees are less likely to stay at a company for their entire careers. These are contracts that restrict your ability to work in a similar position for a specified amount of time and geographic area if you leave the company.

    When someone’s thinking of leaving their job, they often review their NCA and ask if it’s valid. A lot of companies won’t hire you if it would violate your NCA. If you think your NCA is invalid, you can go to court and ask a judge to invalidate it.

    The court will have a hearing and weigh your interests against your employer’s. On one hand your employer doesn’t want to train someone and give them access to company information to lose them to their direct competition.  On the other hand, you have a right to choose where you work and you shouldn’t become unemployable because of a NCA.

    The validity of a NCA is governed by state laws and decisions from previous court cases. There was a great article in the September edition of Arizona Attorney Magazine by David Bray and David Ferrucci about the enforceability of NCAs. Here are some of the highlights.

    Courts generally want NCAs to have clear and reasonable provisions. If your NCA can interpreted in two ways – one that narrow and enforceable one that is overly broad and unenforceable and in the ex-employee’s favor – the court will usually rule in that it’s too broad and thus unenforceable. The court will look at whether you negotiated your NCA. Many new hires are given a nonnegotiable NCA as part of their employee handbook and they can either accept it as written or work somewhere else. If the NCA was negotiated, the court will be more likely to try to determine the parties’ intent when they wrote the contract.

    There’s also something called the blue-pencil rule in Arizona. This allows a court to excise “grammatically severable” and unreasonable provisions from a contract but keep the reasonable provisions. This keeps the whole contract from being invalid because of one invalid provision.

    You can also have step-down provisions in the contract.  An example of this would be, “This non-compete agreement will be in place for 12 months after the employee leaves the company. If a court finds this duration to be invalid, then the duration will be 9 months. If a court finds this duration to be invalid, then the duration will be 6 months.”

    A valid step-down provision will only have 2 or 3 choices and be written in good faith. A 2006 Arizona case said that good faith step-down provisions must be:

    1. Definite,
    2. Consistent with the underlying provision,
    3. Easily severable from unreasonable provisions,
    4. Have a narrow duration range, and
    5. Have a reasonable geographic scope.

    A valid NCA might result in you not being able to work for a direct competitor or in the physical vicinity of your previous employment, but your skills are likely transferable to other jobs or you can do the same job if you’re willing to do it far enough away from your previous employer.

    Read your employment contract carefully. If you’re an employee, get a copy of it before your first day on the job so you can review it and possibly have a business lawyer review it. If you’re an employer, hire a lawyer to write your NCA for you so a court will be less likely to rule that it’s overly broad or otherwise invalid.

    One word of caution: In contract cases, Arizona is a “loser pays” state. If you go to court to dispute a NCA and you lose, you’ll be paying for your attorney and the other side’s attorney.

    Feel free to connect with me via Twitter, Google+, Facebook, and 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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  • I’m an ABA Legal Rebel!

    Photo by Don McPhee Photography

    I’m excited to share the news that I’ve been named a 2012 American Bar Association Legal Rebel! The ABA acknowledges 10 members of the legal community each year for being innovative leaders. I am humbled and honored to be added to this illustrious group.

    Photo by Don McPhee Photography

    I learned about the Legal Rebels when I was in law school at Arizona State University. Every year they invite a panel of Legal Rebels to the school to talk to students about non-traditional career paths. I’m so grateful they hold this event for people like me who need role models who embody the idea that there’s more than one way to be a successful lawyer. I really admire people like Stephanie Kimbro, Niki Black, and Jeffrey Hughes who created some of the roads less traveled in the legal profession.

    I had a wonderful conversation with Legal Rebel Mark Britton at the ABA TechShow this year. I met him the year before when he visited my law school when I was a 3L. In one year, I had gone from sitting in the audience listening to him speak to sharing the stage with him at LexThink.1. At the end of the event he was very encouraging of me and my firm and said I was “doing everything right” with my career.

    The ABA selected me to be a Legal Rebel for my work in flash mob law. Even though I’ve been a lawyer for less than a year, I’ve examined the legal issues surrounding flash mobs since 2009 when I participated in my first flash mob – the No Pants Light Rail Ride. A group of us from that event decided we wanted to keep doing these events so we co-founded Improv AZ. Before  every event, I think through the criminal, First Amendment, tort, property, and intellectual property issues and try to ensure that we aren’t setting ourselves or our participants up to get arrested or sued.

    Photo by Don McPhee Photography

    I’m also an advocate for the real flash mob community. I try to correct the media when they call group criminal activities or any protest or demonstration organized through social media a “flash mob.” I want to maintain our reputation for organizing surprise events that entertain an unsuspecting audience.

    I never would have pursued flash mob law without the support of some very special people.  I especially want to thank Ari Kaplan who encouraged me to pursue this niche, my fellow Improv AZ co-founders, and my family and friends who encouraged me to follow my dream of being a flash mob lawyer. Thank you again to the ABA for bestowing this honor upon me and for my awesome Legal Rebel Converse sneakers!

    Feel free to connect with me via Twitter, Google+, Facebook, and 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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  • Employers Can’t Control Personal SM Accounts

    i love my job by peretzpup
    i love my job by peretzpup

    Last week a friend of mine asked about if employers can require employees to do anything with their social media accounts. Apparently, his friend’s employer asked the employees to change the cover photos and avatars on their Facebook pages to some type of advertising for the company.

    If a company wants to be involved in social media, they need to create their own accounts on Facebook, Twitter, and any other site where they want to have a presence. They should also have crystal clear contracts with the employees and/or businesses who manage these accounts that state how they should be used, who will own the intellectual property on the sites, and who will own the accounts and followers if the employee leaves or changes positions or if the company hires another company to manage their social media.

    Back to employers telling employees what to do on their personal accounts – your personal Facebook account is your personal property. Your employer can prohibit you from being on your personal accounts during work hours or work computers and they can discipline you for violating your employment contract on it (as long as it doesn’t violate the NLRA). But to require you to promote the company on your personal page? That would be a big “Oh hell no.”

    I checked out Facebook’s terms of service and they clearly state you must use Facebook Apps for all promotions and that you will not use “your personal timeline for your own commercial gain (such as selling your status update to an advertiser).” If your employment is contingent on promoting the business on your personal account, I see a valid argument that you essentially sold your part of your timeline to your employer.

    On the other hand, companies want their employees to be happy in general and want them to support the product. I see no problem in companies making images available if employees wanted to voluntarily change their profile photos. I think it would be awesome if the company allowed employees to take pictures of themselves with a company mural or sign to use in social media if they were so inclined. This would have to be completely voluntary with no consequences, positive or negative, based on employee participation.

    I’m a big proponent of employers leaving employees alone when it comes to their personal time and social media accounts as long as the employees aren’t violating company policies. If you think your employer is asking you to do something questionable with your social media accounts, check the website’s terms of service and consult a social media attorney (like me) in your community.

    Feel free to connect with me via Twitter, Google+, Facebook, and 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 North Face vs The South Butt Trademark Saga

     

    North Face vs South Butt, Ruth Carter, trademark infringement
    The North Face vs The South Butt, photos by TerryJohnston and JL Johnson

    The North Face Apparel Corp. is well-known for their outdoor apparel. When I lived in Oregon, I became quite familiar with their brand. Their tagline is “Never Stop Exploring.” In 2010, The North Face sued The South Butt, LLC for trademark infringement when the company started selling apparel with a similar name, logo, and tagline. The South Butt’s logo uses a similar font as The North Face and incorporates a set of curved lines, similar to The North Face’s log. The South Butt’s tagline was “Never Stop Relaxing.” The South Butt even tried to sell the brand to The North Face for $1 million. When I first saw a South Butt shirt, I thought it was hilarious and I knew it was a parody of The North Face, but I figured it wouldn’t last long on the market.

    The two companies settled this dispute with an injunction that prohibited The South Butt from using The North Face’s trademarks or any mark that was similar to The North Face’s without permission. The trademark laws generally prohibit you from unfairly riding another brand’s coattails for your own benefit, confusing consumers about what the quality and source of the good they’re buying, or otherwise damaging another brand’s reputation with your trademark.

    Fast-forward to the summer of 2012, The North Face is back in court asking a judge to hold the owners of The South Butt in contempt. According to the report, the owners of The South Butt started a new company, Why Climb Mountains, LLC, and they are selling apparel under the brand “The Butt Face” with the tagline “Never Stop Smiling.” The logo also features curved lines which are similar to The North Face’s logo.

    The North Face is claiming that The South Butt owners are violating the injunction with this new line of apparel. They commissioned a survey that found that 35% of respondents associated The Butt Face logo with The North Face brand. The judge is expected to decide whether The South Butt owners violated the injunction that prohibited them from using a trademark that’s similar to The North Face.

    I understand why a company would want to create a parody of an existing company’s brand, but this story makes me wonder, “Why would you do it twice to the same company if you ended up in court the first time around?” On the flip side, this story shows that there is a market for parody brands which, if a company was looking to expand its market, that would be one option to consider.

    If you’re considering using a trademark that might be confused with your competitors’, please consult a trademark attorney in your community before you invest too much time and energy into creating that brand.

    If you want to hear more of my thoughts on this topic, or if you think this post is too long to read, I made a video.

    Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

    Hat tip: JD Supra

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    Ruth Carter

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  • Venture Capital Available for Arizona Companies

    Money Plant by Tax Credits from Flickr
    Money Plant by Tax Credits

    Money doesn’t grow on trees . . . but sometimes people want to give it to you! The Invest Southwest Capital Conference is coming up on November 28th-30th at the Fairmont Scottsdale Princess Resort. This is the conference where Arizona companies can pitch their business plans and investment opportunities to over 300 venture capitalists and angel investors.

    This conference has resulted in over a quarter of a billion dollars being invested in companies since its beginning in 1992. Jonathan Coury, the chairman of this year’s conference says the event’s mission is to encourage “economic growth through capital investments in growing enterprises.” I’ve known Jonathan since I worked under him and helped launch other businesses at the Innovation Advancement Program at Arizona State University. If he believes in this conference, I believe it’s something local companies should consider if they are trying to get a significant amount of venture capital.

    Invest Southwest is geared towards companies that are looking for between $500,000 and $10 million in funding. You must apply to present to the conference. Applications must be received by 5pm on Thursday, August 30th with a $199 application fee. A selection committee will chose between 12 and 15 companies to present at the conference. If you are selected, you must pay an additional $350 presenter fee.  At first glance, $549 might seem like a lot of money to present at a conference, but not compared to the $10 million you might take home with you.

    When you are seeking venture capital, it’s best to work with an Arizona business lawyer (like me) who can help you understand your obligations when you accept money from venture capitalists or angel investors.

    Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn, or you can email me directly.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Avoid Piercing the Corporate Veil

    Shadow Theatre by tamadhanaval, Piercing the corporate veil
    Shadow Theatre by tamadhanaval

    After I published the blog post on starting a business in Arizona, someone asked me if there was anything wrong with using PayPal to accept business payments if their PayPal account is connected to a personal bank account. I cringe when I hear stories like this.

    One of the benefits of creating a business entities is it limits your liability. If you have a corporation or an LLC and the business gets sued and loses, the prevailing party can only take the business’ assets if the business is set up properly. They can’t go after your personal home, car, bank accounts, or other possessions.

    You get this protection by keeping the business assets and your personal assets separate. Your business needs its own bank account, credit card, etc. You should pay for business expenses with the business accounts and personal expenses with your personal accounts. If you don’t keep your accounts separate and you lose in a lawsuit, the prevailing party could make the argument that the business is not a separate entity but is merely an alter ego for you. If that happens they can take assets from the business and your personal property to collect their damages.

    Creating an LLC is a good start to protecting yourself against personal liability, but it may not be enough if you don’t keep your business and personal accounts independent from each other. Services like PayPal are so easy to use that it will be simple to create separate accounts for business and personal use.

    If you have questions about whether you’ve properly set up your business to protect yourself against liability, please contact a business lawyer (like me) in your community.

    Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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