Lancaster Law Blog

Lancaster Law Blog

Lancaster's Legal Link

Podcasts and the Law

Posted in Internet Law, Legal Tidbits

This is the third post in a series about Internet Law. You can find previous posts in the series here.

I listen to podcasts during my commute every day to and from work. A podcast is an audio or video program that is typically provided through an internet subscription service. There are podcasts available on almost every conceivable topic. There is a podcast about creating podcasts. Even President Obama was recently a guest on the popular podcast WTF with Marc Maron.

Since podcasts are hosted in the cloud, and are downloadable on demand, you can listen to them at your convenience. Often times when I find a new show, I’ll go through the back catalog and download dozens of episodes with topics or guests that look interesting.

Here are some of the shows that I listen to regularly and their iTunes subscription links (downloads or streaming versions are also usually available elsewhere on the web):

Startup Podcast – A series about what happens when someone who knows nothing about business starts one and what it’s really like to get a business off the ground.

99% Invisible – A tiny radio show about design, architecture & the 99% invisible activity that shapes our world.

HBR Ideacast – A weekly podcast featuring the leading thinkers in business and management from Harvard Business Review.

The Talk Show with John Gruber – An interview show discussing Apple and technology.

The Tim Ferriss Show – Tim Ferriss is a self-experimenter and bestselling author. In this show, he deconstructs world-class performers from eclectic areas (investing, chess, pro sports, etc.), digging deep to find the tools, tactics, and tricks that listeners can use.

Dan Carlin’s Hardcore History – The unconventional Dan Carlin takes his outside-the-box way of thinking and applies it to the past. Was Alexander the Great as bad a person as Adolf Hitler? What would Apaches with modern weapons be like? Will our modern civilization ever fall like civilizations from past eras?

Lawyerist Podcast – A weekly show about lawyering and law practice.

Are you interested in creating your own podcast? Were you asked to be a guest on a podcast? Just curious about the legal issues surrounding podcasts? Below is a brief summary of some of the important legal issues that podcasters may encounter.

Trademark Law

What’s in a name? A trademark is a word, phrase, symbol, design or a combination thereof, that identifies the source of the goods of one party from those of others. When you’re choosing a name for your new podcast, it’s important to recognize the risk of using an existing trademark that gives rise to a “likelihood of confusion” in the eyes of a consumer. For example, it would likely be problematic from a trademark perspective to use the mark “NPR” in the title of a podcast that is not affiliated with National Public Radio in any way.

Generally, use of another’s trademark is allowed without permission if the use is editorial or nominative in nature and as long as the use doesn’t suggest that company endorses the podcast.

For example, let’s say I created a podcast in which I review running shoes, and I name an episode “Nike Free” in which I review the new Nike Free running shoes. So long as I don’t attempt to sell a competing product in the podcast, my use of the trademark “Nike Free” is solely for informational purposes and it doesn’t appear as though Nike has endorsed the podcast, my use of the trademark is permissible. Further, even if I panned the new Nike Frees and said they were terrible (I love them by the way), my use would likely still be allowable as a nominative fair use. Out of an abundance of caution, I would also include a statement in the podcast acknowledging that any trademarks, including Nike Free or any other trademarks mentioned in the podcast are the property of their owners and that I make no claim to those marks as my own.

Noncommercial uses of trademarks are usually the strongest instances in which use of a trademark is allowed without permission, since trademark law prohibits using another’s trademark to sell competing products that would likely be confused with the trademark holder. Since editorial or nominative uses are for informational purposes only and not for commercial gain, use of another’s trademark in these ways is usually permitted.

Copyright Law

Copyright issues pop up all the time and in many ways in the creation of podcasts. Copyright law in the United States protects original works of authorship that are fixed in a tangible medium, including written works, video and sound recordings. It protects the expression of an idea, not the idea itself and ownership typically is granted to the author of the work. Copyright owners have exclusive rights to control certain activities related to the work, and others wishing to use the work should obtain the owner’s permission to avoid infringing upon their rights unless an exception to this requirement applies.

There are various exceptions where permission is not required, including “fair use” of the work, certain elements of the work that are not protected by copyright, when the material is already in the public domain, and United States government works. Content subject to a license, such as a Creative Commons license, may also set forth the rights that a copyright owner has reserved and the terms under which another person or entity may use the work.

Right of Publicity

If a podcast conducts guest interviews or has a revolving set of hosts, publicity rights could be implicated. Publicity rights are primarily governed by state law in the United States and generally give individuals the right to control the use of their voice, image or likeness for commercial purposes. In Pennsylvania, “name” or “likeness” includes a person’s name, signature, photograph, image, likeness, voice or a substantially similar imitation of one or more of these. 42 Pa.C.S. Section 8316(e). Therefore, a podcaster should make sure they have the consent of the guest to use that person’s likeness in the podcast, including any advertisements or other endorsements that may be included in the show.

Conclusion

Podcasts are becoming a mainstream form of new media. In addition to the legal issues described above, there are many additional unique issues that could arise, such as contract law issues like advertising agreements with sponsors, joining a podcast network, hosting the audio or video files, and licensing content for replay or use by others.

Thinking about starting a podcast? As with any new venture, it is important to identify the key legal issues and risks that may impact your business with the help of experienced legal counsel.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.

New Pennsylvania Law on Business Entity Transactions Effective July 1, 2015

Posted in Business Law, Legal Tidbits

New provisions to Pennsylvania law relating to corporations and unincorporated associations will become effective July 1, 2015. The provisions became law on October 22, 2014 via Pennsylvania Act 172.

The primary goal of the new law is to restructure and simplify provisions governing all domestic entities formed by filings with the Pennsylvania Department of State, including provisions relating to filings, names, entity transactions and registration of foreign entities to do business in Pennsylvania.

The law will affect limited liability companies (LLCs), business corporations, nonprofit corporations, business trusts, limited partnerships, general partnerships, professional associations and unincorporated nonprofit associations. Business owners that are interested in changing the entity type of their business (perhaps from an LLC to a corporation), to merge with another business entity or to move their business from another state to Pennsylvania will benefit from the procedures set forth in the new law. Previously, these transactions were more costly and time consuming from a procedural and filing perspective.

While the following details may be of more interest to lawyers, getting familiar with the new statutory language and processes will help business owners to identify possible ways to accomplish their business goals. Continue Reading

Time to Start Thinking About Filing an Annual Tax Assessment Appeal

Posted in Real Estate, Taxation

It is that time again to start thinking about whether you want to file an assessment appeal challenging the assessed value of your real estate.  Property taxes are based on the assessed value of real estate, and the assessed value of the real estate should reflect the fair market value.  In Lancaster County, these appeals are heard annually in the fall, and the deadline for filing is August 1.  Last year, on August 5, we had an initial inquiry from someone about filing an appeal and had to explain that while an appeal could be filed at any time, only appeals filed by the deadline of August 1 would be heard and decided in that year.

Another reason to start thinking about this now is to allow sufficient time to obtain an appraisal of your property. Because the property owner must provide credible evidence that the assessment is out of line with fair market value, generally a relatively current appraisal or recent arms’ length purchase is necessary to support your appeal.

Last July, I blogged on how to know whether an assessment appeal is warranted and how the predetermined common level ratio (CLR) is the factor that is applied to the assessed value to correlate to fair market value.  Right now, the CLR is 1.26 but new ratios will be issued early in July.  Usually, it is a modest change, and for the purposes of deciding whether an appeal is warranted, we use the 1.26 ratio currently in effect.

If you have questions about the assessment appeal process, call or email us as soon as possible so that we can do what needs to be done by end of next month.

Christina Hausner is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, PA.  She received her law degree from Duquesne University School of Law and practices in a variety of areas.

I’m 30 Years Old, Married, an Attorney, and I Just Got My Estate Plan in Order

Posted in Estate Planning

I know, I know.

I first learned about the value of an estate plan in my second-year trusts and estates class…seven years ago. I’ve been practicing law for almost five years. And despite recommending the importance of estate planning and drafting wills and powers of attorney for clients, friends and family, personally, I’ve been avoiding addressing this issue for some time.

 I’ve been through all of the excuses:

Estate Planning

The excuses are understandable – giving some serious thought as to what will happen if you die or are unable to make decisions for yourself is a tough subject to tackle, and isn’t fun to think about. I’d definitely rather write blog posts, go to the gym or watch Game of Thrones. But it’s part of becoming a responsible adult, and establishing an estate plan lets you take control of what happens rather than resorting to what your state’s legislature thinks should happen. Consulting with an estate planning attorney also will give direction to your loved ones as to what your wishes are, giving clarity in a stressful time and hopefully preventing conflicts that could arise in the absence of an estate plan.

Even though I don’t have much in the way of assets, what happens if I’m in an accident and unable to make decisions for myself? If you watch the news, you hear all the time about the terrible accidents that can happen. But what you don’t hear about are the difficulties behind the scenes for your family or friends that can be created by a non-existent or outdated estate plan, including issues with banking, insurance, bill payment, and health care decisions.

A financial power of attorney will let me choose who gets to make financial, insurance and business decisions on my behalf, and allows me to give that person directions as to what my wishes are.

Similarly, a durable health care power of attorney and living will allows me to appoint an agent to make health care decisions on my behalf, such as surgery, medication and treatment options. In the unfortunate event of an end-stage medical condition with no hope of recovery or meaningful life, I can make my wishes or instructions known as to whether to continue life-sustaining treatment or otherwise.

Finally, in the event that I pass away, a will determines what happens to my assets, if I have any specific bequests, and my wishes as to burial instructions. If I had children, I could include provisions for who would be the guardian of the child or a trust for the child’s benefit.

For all of the above reasons, I decided it’s time to stop making excuses and just get it done. If you don’t have an estate plan, it’s always a good time to think about getting one. If you have an estate plan, have you revisited it lately? A good time to think about revising the documents is either every three to five years, or upon the occurrence of a major life event, like marriage or the birth or adoption of a child.

If you’re interested in learning more about estate planning, please contact me, review the Estate Planning & Wills section on our firm’s website,  or follow the Estate Planning topic on this blog.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas, including estate planning. He does not recommend naming Hodor as an agent to make health care decisions on your behalf.

Does a Contract Have to Be in Writing to be Enforceable?

Posted in Business Law

Contract to signThe answer – it depends. The general rule is that in order to be enforceable, contracts do not have to be in writing unless they are required to be in writing by law. So, what constitutes a contract?

The basic elements of a contract are:

  1. Offer – a party promises to do (or not do) a specified action in the future.
  2. Acceptance – another party explicitly accepts the offer in some manner, such as in writing, orally or performance. The acceptance must mirror the terms of the offer.
  3. Consideration – something of value is promised in exchange for the terms specified in the offer.
  4. Meeting of the Minds – the parties to the agreement understand and agree to the basic terms of the contract.

A contract can take many different forms. It can be one single written document, it can be a series of documents taken together, it can be handwritten, the result of a conversation, or transmitted via email, a website, carrier pigeon or otherwise. Continue Reading

Web Development Pitfalls and Legal Issues to Address When Someone Else Creates or Manages Your Business Website

Posted in Internet Law

Imagine the following scenario:

It’s Monday morning and you open your web browser and type the domain name of your website into the address bar. You want to send a link to a blog post that may be of interest to a customer.

Instead of your beautiful, responsively-designed website, you find a page that looks like this:

domainforsaleMust be a typo, you think. This is what happens when you haven’t had your coffee yet. You type the URL again.

Same result.

How could this have happened? How long has my beloved site been gone? Is this why I’ve seen a decline in sales and referrals?

This is the second post in a series about Internet Law. If you have a website or are considering updating an existing website, it is important to understand the ownership and control issues that can arise, especially when you hire a third party to register a domain name, create, update or manage the website. Failure to set out the details of the relationship in a contract can prove to be costly and difficult to fix in the future. Continue Reading

Who Owns This Blog Post?

Posted in Business Law, Internet Law, Legal Tidbits

iStock_000035585824_SmallAs a lawyer who blogs who is interested in the law as it pertains to bloggers, answering this question seems like a good place to start for a series of posts on Internet Law. The answer to the above question, as you might imagine, depends on the facts and circumstances of each individual case.

In order to determine who owns a blog post or other work of authorship, copyright and contract law are typically implicated. Copyright law protects a writing from the time it is created in a fixed form, such as written on a page or in an electronic document. Only the author of the work or a subsequent transferee who obtains rights from the author can claim copyright, with one exception – “works made for hire”.

Section 101 of the federal Copyright Act defines a “work made for hire” as follows:

Continue Reading

Do Livestock Need to Know Constitutional Law? The Effect of Court Rulings on PA Farm Projects

Posted in Environmental, Real Estate, Zoning and Land Use

CowsAnother title for this post could have been “Are my cows violating your constitutional rights?”   In less than two years, the Pennsylvania Courts have made two rulings that greatly affect all environmental issues in the State.  Although the Courts did not specifically talk about farming, it is likely these decisions will impact farming projects.

In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court made a landmark decision about how governmental entities look at environmental issues.  Robinson Township was a challenge to Act 13 of 2012, which gave overwhelming rights to oil and gas companies, particularly in the Marcellus Shale regions. Article I, § 27 of the Pennsylvania Constitution provides that:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment.  Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

The Pennsylvania Supreme Court started by saying that this section of the Constitution is “inherent in man’s nature and preserved rather than created by the Pennsylvania Constitution.”  This means that environmental rights are comparable to your freedom of speech, or your right to pursue happiness. Continue Reading

Securities and Exchange Commission Issues Final Rules on Regulation A+

Posted in Business Law

On Wednesday, March 25, 2015, the Securities and Exchange Commission adopted final rules that will assist certain small businesses and startups in fundraising efforts by creating an updated exemption from registration for certain small issuers of securities. The final rules are commonly referred to as “Regulation A+”.

The Securities Act of 1933 and applicable state securities acts provide that in order to be sold to investors, securities must either be registered with the appropriate authorities or subject to an exemption from registration. Exemptions are often sought to avoid costly and time-consuming registration processes. The definition of “securities” for the purposes of the Act is defined broadly and includes debt and equity offerings.

The updated exemption from registration will allow those certain small issuers of securities to raise up to $50 million of securities within a 12-month period, subject to certain eligibility, disclosure and reporting requirements. The structure of an offering under Regulation A+ is being referred to as a “mini-IPO” and is subject to certain SEC filings, including an offering statement that must be reviewed and qualified by the SEC, disclosure of financial statements and the filing of ongoing reports. Also of note is that offerings under Regulation A+ are not limited solely to “accredited investors”, which substantially broadens the market of potential investors for a fundraising entity. Regulation A+ offerings can also be advertised publicly as there is no general prohibition on solicitation.

If you’re interested in getting into the weeds on the full text of the final rules, they can be found here.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.

Startups and Small Businesses: Picking your Business Team

Posted in Business Law

A business owner’s most valuable resource is time. In order to be able to focus on actually doing business, it is important to pick a team of professionals that you trust to assist you with common issues that arise during the life of a business. These professionals typically include an attorney, an accountant, a banker, an insurance broker and a financial planner.

Often times, issues may implicate more than one of your team members, so for these types of business decisions, calling a meeting or having a conference call to discuss the issues and impacts on your business will be worth the time and effort in the long run.

Picking your team is an important decision and could have significant impacts on your business. So, how do you find the right group of professionals for your business? What types of qualities should you look for in your team? Here are some suggestions to get you started. Continue Reading

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