Under Federal FMLA, Employers Cannot Allow Employees to Exhaust Other Paid Leave

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Some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating the leave as federal Family and Medical Leave Act (FMLA) leave, even when the leave is clearly FMLA-qualifying.  In March, 2019, the Acting Administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division issued an opinion letter stating that doing so violates the FMLA.  The FMLA regulations require an employer to provide a written designation notice to an employee within, absent extenuating circumstances, five days after the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.  The Acting Administrator explained that failure to follow this notice requirement may constitute an interference with, restraint of or denial of the exercise of an employee’s FMLA rights.  Once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, neither the employer nor the employee may decline FMLA protection for the leave.  Rather, the employer must provide notice of the designation within the required five-business-day time period.  The leave then counts toward the employee’s 12-week FMLA leave period (or 26-week period for military caregiver leave), even if the employee substitutes paid leave for the unpaid FMLA leave.       

Note:  the DOL opinion letter applies only with respect to the federal FMLA.  It does not apply to any state family and medical leave statutes.  Employers should check to see what rule applies with respect to the state laws when designating periods of state family and medical leave.

NLRB Further Defines Concerted Activity

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The National Labor Relations Act protects employees—even those in non-union workplaces—engaged in protected concerted activity for the purposes of mutual aid and protection.  But what does “concerted” activity mean?  A recent National Labor Relations Board decision, Alstate Maintenance, 367 NLRB No. 68, helps define the contours of the term. 

In Alstate, the employer provided skycap services at an airport.  Passenger tips made up the biggest part of the skycaps’ compensation.  The issue in this case arose when a supervisor instructed a group of skycaps to assist with a soccer team’s equipment and a skycap responded—in front of other skycaps—that “we did a similar job a year prior and we didn’t get a tip for it.”  After the comment, the skycaps initially refused to assist in loading the equipment, but later did so.  Alstate fired the employee who had complained about the lack of tip. 

In its analysis, the Board reiterated the principle that an action by an employee is only concerted if the employee brings a group complaint to management or if the employee tries to induce group action.  Considering the facts before it, the Board concluded that the skycap had not engaged in concerted activity. The fact that the employee had indicated that other employees had not received a tip either did not communicate that the group had previously discussed the soccer team’s failure to tip in the prior year.  Rather, it merely described what had happened to the group.  There was no indication that the employees had discussed it amongst themselves prior to the statement.  Further, there was no evidence that the employee was trying to induce group activity.    

In reaching its decision, the court went back to the rule that the fact that a complaint is made in front of a group of employees does not in and of itself indicate that the employee was engaging in concerted activity.  In doing so, it overruled an Obama-era decision that conflicted with the prior rule. 

The court also identified factors that would tend to support drawing an inference of concerted activity.  The factors include that:

  • the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment;
  • the decision affects multiple employees attending the meeting;
  • the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
  • the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and
  • the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

The court noted that, “of course,” other factors may be relevant, such as an express call for employees to act collectively.

Entertainment Law: Why Creative Professionals Need an Attorney

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As a filmmaker, writer, musician, photographer, visual artist or other creative professional, your core business is developing your craft and your work.  But the business of being a creative professional requires the assistance of attorneys who are knowledgeable about your creative work and industry.  An attorney with this background can assist you with certain key legal services that your business will need.  The three most common areas of legal services creative professionals need are outlined in this article.

1.         Business Formation

In order to protect your personal assets (like your personal bank accounts, house, cars, etc.), you should create a business entity for your professional expenses, liabilities, and income.  This can range from a limited liability company to numerous forms of corporations.  An attorney can help determine what type of entity is best for your exact needs and assist in forming the chosen entity.

For example, Jack is a photographer and begins selling his artwork online and in local coffee shops.  He doesn’t create a business entity and runs all of his business expenses through his personal bank accounts.  Jack enters into various contracts for equipment and supplies.  He is personally responsible for payments under these contracts.  In the middle of the year, Jack defaults on the payments.  Jack is personally liable for the debt. 

Jack should have created a business entity, like a limited liability company, in order to protect his personal assets from his business’s debts and liabilities.  Had Jack created a business entity and signed the contracts on behalf of his company, then the vendors and suppliers would only have access to the business’s funds to repay the debt, not Jack’s personal funds.

Additionally, if you are working with collaborators on your business, an attorney can develop an agreement where all of the parties agree to certain terms, decision-making processes, and ownership of the company.  While going into business with friends or longtime collaborators may be creatively smart, it can create problems down the line.  The best way to keep that friendship and collaboration intact is to have an agreement that outlines each person’s responsibilities to the company.

For example, Jack the photographer decided to work with Jill the filmmaker on a new documentary.  The documentary premiered at a film festival and won a cash prize.  Jill believes she is owed 50% of the cash prize, but Jack believes the money should be used to pay back the expenses of the documentary, which Jack paid.  Without an agreement on how money is distributed, Jill may run off with half of the cash prize, leaving Jack out all of the expenses of the documentary.  If Jack and Jill had signed an agreement that outlines how money is split and whether costs are recouped first, then they could have avoided this conflict and kept their relationship intact.

2.         Contracts and Agreements

Once the business entity is set up, then you are ready to begin conducting your creative business.  Contracts are critical to any business because they lay out each party’s responsibilities and rights.  Contracts keep each party accountable for their actions.  But, for the creative professional, contracts are critical because the work that is being created is valuable intellectual property.  A contract can assert who owns the intellectual property and how decisions are made with regards to using the intellectual property.

Every creative business must either draft or sign contracts such as:

  • Production Agreements
  • Publishing Agreements
  • Writers, Collaboration, Composer, Talent Agreements, etc.
  • Location Agreements
  • Depiction Agreements
  • Work Made for Hire Agreements
  • Financing/Investor Agreements
  • Agent/Manager Agreements
  • Licensing Agreements
  • Distribution Agreements
  • Options
  • Bill of Sales for Creative Works
  • Name and Likeness Releases
  • Union Agreements and Compliance

The specifics of your agreement will shift based on your artistic discipline, but no matter what kind of creative professional you are, your business needs contracts to hold those you are working with accountable to what was agreed to.  An attorney can assist you in drafting those agreements or can review and negotiate a contract you receive from a third party to make sure that you understand the terms and are protected from potential issues. 

If you will need to re-use an agreement numerous times, investing in an attorney to develop a standard contract that you can re-use, is a worthwhile expense.  For instance, Jack the photographer is venturing into portraits for families and children.  He needs an agreement to be used with all of his portrait clients that serves as a bill of sale for the prints or digital copies of the photos and a likeness release, but reserves his rights to the copyright of the photos.  An attorney can draft a contract for Jack that allows him to re-use the agreement for all of his portrait clients, making it an economical way for Jack to run his business while still using a legally binding agreement.

3.         Intellectual Property

As a creative professional, you are in the business of creating intellectual property.  Whether it is a film, a painting, a play, a book, or a photograph, creative professionals should actively protect their work by registering the copyright of the work.  While the creator of the work has copyright rights immediately upon creation of the work, there are numerous advantages to registering the work with the U.S. Copyright Office.  This is a fairly routine task with the assistance of an attorney.  Our Intellectual Property and Entertainment Law practice team can work within your budget to register your copyrights with the U.S. Copyright Office.

To learn more about copyright law, why a creative professional should resister a copyright, and how to provide proper notice of your copyright rights, check out this recent article entitled Copyright 101 for Businesses and Artists.

Beyond copyrights, creative professionals may have the need to register trademarks to protect important logos, slogans, company names, etc.  An attorney can assist you in determining what trademark assets are eligible for registration.  Check out a recent article entitled Top 5 Reasons You Should Register Your Trademarks to learn more about why trademark registration is an important component to protecting your intellectual property.

The work you create may need to be protected either by copyright or trademark registration.  Typically, an attorney will review your various creative works, discuss a protection plan for the works, and then execute and maintain that protection plan.  For creative professionals, your main business assets are the works you create and so protecting those assets is a high priority.

Conclusion

No matter what kind of work you create as a creative professional, you must consider the benefits of (1) creating a business entity to avoid any personal liability for liabilities of your business, (2) reviewing contracts with an attorney or requesting an attorney draft your contracts with your collaborators, and (3) protecting your intellectual property by proper federal registration.  An attorney can assist your creative business in these three critical areas to protect your personal assets, your business relationships, and your intellectual property.

If you wish to discuss your arts and entertainment legal needs, please contact Margaret T. Lund or Laura Lamansky, the authors of this article, or any of the other attorneys in the Intellectual Property and Entertainment Law practice team of Stafford Rosenbaum LLP. 

Workplace Civility Rules Upheld by National Labor Relations Board

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In the wake of the National Labor Relations Board’s (the Board) decision in Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the office of the Board’s General Counsel recently released a memo finding that a company’s “Commitment to My Co-Workers” policy was a lawful workplace-civility rule.  The policy required workers to, among other things, maintain healthy relationships with co-workers and address conflicts directly.  The General Counsel concluded that the employer could require employees to sign off on the policy and could terminate those who refused to do so.  The case is a reminder to employers that they may be able to restore civility rules that would have been found to violate National Labor Relations Act rights prior to Boeing.

Changes Likely to Wisconsin Child Placement and Support Laws

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In 2018, Stafford Partner, Tiffany Highstrom, was appointed to the Wisconsin Legislative Council’s Study Committee on Child Placement and Support. The Committee includes legislators and citizens with special knowledge on a given subject. Committees are often tasked with drafting legislation, which they then present to the Council. If a majority of the Council approves the draft bill, then the Council sponsors it.

On March 11, 2019, the Legislative Council introduced legislation and rules suggested by the Study Committee. The bills would make several revisions to the current laws on child support and placement of minor children.

AB-094 Child Support Obligations for Incarcerated Parents

Under current law, the court has wide discretion to determine the child support obligation for an incarcerated parent. This bill would not consider incarceration as voluntary unemployment when calculating child support obligations. An existing child support obligation will be suspended if a parent is incarcerated for a significant amount of time if the reason for the incarceration is unrelated to an applicable family law issue. The national trend recognizes the issues payors face when confronted with large arrearages, including less formal employment and a reduction in long term child support compliance.

This change would provide relief to incarcerated parents so they are not confronted with an insurmountable child support liability when released. However, the financial responsibility of the child is then wholly placed on the primary parent, who is already assuming full physical and emotional responsibility for the children.

AB-101 Elimination of Family Support

Under current law, family support is a single payment which combines the component parts of child support and maintenance. Family support payments are generally treated for federal and state tax purposes as maintenance payments, such that the payment is deductible to the payor and taxable to the payee. The Tax Cuts and Jobs Act of 2017 eliminated the deduction for maintenance payments. This legislation eliminates the family support option as such an order is no longer advantageous for tax savings.

AB-102 Military Benefits in Determining Gross Income for Child Support

This legislation will provide guidance as to what type of military benefits are available as income for the purposes of calculating child support. The bill specifies that gross income still includes veterans’ disability and basic military allowances for subsistence and housing, but excludes military allowances for variable housing costs.

AB-096 Department of Children and Families (“DCF”) administrative rules regarding calculation of child support obligations

While the manner of calculating child support is unchanged, the shared placement calculation will be listed as the default calculation rather than among the calculations for “special circumstances.” This is an administrative change to recognize the importance of shared placement.

AB-103 Limitation of Recovery of Birthing Costs

Under current law, effective July 1, 2018, fathers in intact families are exempt from reimbursing medical assistance (Badger Care) for pregnancy and birth costs. This new legislation would require fathers, regardless of whether they are part of an intact family, to contribute to these birth and pregnancy costs.

AB-093 Adoption of Uniform Deployed Parents Custody and Visitation Act

Under existing Wisconsin law, there is no authority for the court to award placement to a third party (such as a step-parent or grandparent) when one parent is a deployed service member. This legislation would allow the court to award temporary placement to a third party during a deployment through an agreement between the parents or as ordered by the court following a hearing. This change would allow the court to consider maintaining important third party relationships for a child while one parent is deployed.

AB-099 Parenting Plans in Relation to Mediation

Parties must attend at least one mediation session (unless waived by the court) when there is a dispute on custody and placement of the minor children. This bill would require each party must submit a Parenting Plan to the mediator at least 10 days before a scheduled mediation. Preemptive sharing of information assists the mediator to know what issues are in dispute and should help facilitate resolution of contested cases. If mediation is unsuccessful or waived, the parties must file a Parenting Plan with the court within 60 days. Finally, the bill revises what the Parenting Plan must address.

AB-095 Modification of Legal Custody or Physical Placement Order Contingent on a Future Event

Under current law, an original judgment on custody and placement cannot be modified unless the court finds that the custody and placement arrangements are causing physical or emotional harm to the child. Case law states that the court must make decisions on the current circumstances and may not order a modification of placement upon a contingent event in the future. This has created difficulty for family law practitioners when there may be reasons to change placement over a period of time, such as for very young children.

This bill would allow an agreement between the parents to potentially modify future custody or placement. This stipulation must be filed alongside an initial custody and placement order, and be contingent upon events or needs of the parents or child that are reasonably certain to occur within two years (and not on anticipated behavior modifications). For example, a placement schedule could be modified upon a child entering first grade.

AB-100 Judicial Notice of CCAP Records Related to Domestic Violence or Child Abuse

This bill would allow judges to take judicial notice of convictions and injunctions related to domestic abuse, if available in the electronic consolidated court automation programs (CCAP). This will make it easier for litigants (especially pro se litigants) to present evidence to the court of other related cases that are relevant to the family case.

 

The current statute requires the court to maximize the amount of time with each parent when awarding a placement schedule. This bill proposes to add a general statement that any court’s allocation of physical placement presumes that the involvement and cooperation of both parents is in the best interest of the child.

Though it is a general statement, the language may create confusion over whether a substantially shared placement schedule is more important that the other factors that the court must consider as to the child’s best interest. The language also does not acknowledge that domestic violence affects the parents’ ability to cooperate regarding the child.

AB-098 Amendments to Physical Placement Factors

Pursuant to Wis. Stat. 767.41(5), the court must consider sixteen factors when making determinations as to custody and placement of minor children. This bill reorganizes the statutory factors and removes two of the current factors. The court would also be required to prepare a written best-interest explanation any time the court grants less than 25% placement to one parent.

Supreme Court Rule 35.015 (1) Requirements for Guardian ad Litems

In a chapter 767 (family court) proceeding, a prospective Guardian ad Litem must receive six hours of credits approved as Guardian ad Litem credits from the Board of Bar Examiners in each reporting period. Currently, three of those six credits can be related to a wide variety of family law related issues and court procedures. This bill would add a requirement that family court Guardian ad Litems must receive three CLE hours related to the dynamics and impact of family violence education. This would clarify the specific number of hours that a Guardian ad Litem must obtain on the issue of domestic violence. However, by emphasizing one issue, this rule may leave the family lawyer unprepared to address other issues and unable to spend time on emerging issues (such as the effect of the opiate crisis on parenting and family law).

Conclusion

These bills have been introduced in the Assembly and have been assigned to various committees (including Ways and Means, Judiciary and Family Law). The bills could be posted at any time during this legislative session.

Though not yet adopted as law, the proposed bills would make major changes to the child support and placement statutes.

If you have any questions about how these proposed bills may affect your family law matter, please contact Atty. Tiffany Highstrom, the author of this article, or another attorney in the Family Law practice team of Stafford Rosenbaum LLP.

Words Can Hurt You – Failing to Stop Rumors Can Lead to Liability for Sexual Harassment

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Sticks and stones may break my bones but words will never hurt me?  For employers in the United States Court of Appeals for the Fourth Circuit (governing Maryland, Virginia, West Virginia, North Carolina and South Carolina), this adage may no longer be true.  In Parker v. Reema Consulting Servs., Inc., decided February 8, 2019, the court held that an employer’s failure to stop a false rumor that a female employee had a sexual relationship with her boss in order to be promoted opened it to a claim of sexual harassment by the subject of the rumor. 

In Parker, Evangeline Parker started working for her employer as a low-level clerk.  Within two years, she was promoted six times, ultimately rising to the level of Assistant Operations Manager.  Two weeks after the last promotion, a male co-worker started a rumor that Parker received the promotion because she had a sexual relationship with her boss.  A higher-ranking manager also helped to spread the rumor around.  In fact, the manager held an all-staff meeting to discuss the rumor.  Parker was late to the meeting and had the door to the meeting room slammed in her face when she tried to come in.  However, her boss—a man—had been allowed in the meeting even though he was also late. 

As the rumor spread, Parker was “treated with open resentment and disrespect” from co-workers, including those she was responsible for supervising.  She alleged that her work environment “became increasingly hostile.”  The manager blamed Parker for “bringing the situation in the workplace” and told her she could no longer advance in the company because she complained about the rumor.  After Parker filed an internal harassment complaint, the manager fired her. 

The employer argued that the rumor was not based upon Parker’s sex, but on her conduct.  The Fourth Circuit rejected this position.  It held that, assuming Parker’s allegations were true, the employer may be liable for failing to quash the rumor on the theory that it perpetuated a “deeply rooted perception” that women, but not men, use sex to advance in the workplace.  The court explained that “because traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,’ and ‘these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,’ it is plausibly alleged that Parker suffered harassment because she was a woman.”  The court determined that the alleged harassment was severe and pervasive enough to state a claim when the harassment lasted two months, was continuous, consumed management and employees, and was at times physically threatening, e.g., the manager slamming a door in Parker’s face.  The court denied the employer’s motion to dismiss and let the claim proceed.    

Employers in the Fourth Circuit will have to tread carefully to properly react to and address rumors without infringing on employees’ rights under the National Labor Relations Act to discuss the terms and conditions of the workplace.  It remains to be seen whether the case is an outlier or whether other circuits will follow suit.    

DOL Proposed Overtime Regulations That Increase the Salary Threshold

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Employers should take note that the U.S. Department of Labor has at long last issued proposed rules regarding “white collar” exemptions from federal overtime requirements.  Currently, the exemptions may apply if certain duties tests are met and the employee is paid on a salary basis of at least $455 per week, which comes out to $23,660 annually, assuming that some work is performed in each of the 52 weeks in the year.  The proposed regulations would raise the salary threshold to $679 per week, which comes out to $35,308 annually. 

The proposed rules would replace the Obama-era rule that set the threshold salary amount to over $57,000.  A federal court permanently enjoined enforcement of that rule.  The proposed rules mark the first effort by the Trump administration to address the white collar exemptions.

The proposed rules do not address the duties tests, but do address a few other issues.  First, the salary threshold for highly compensated employees would be raised from $100,000 to $147,414, higher than the $134,004 threshold that the Obama era regulations tried to set.

Second, employees would be able to credit non-discretionary bonuses and incentive payments (e.g., commissions) toward the minimum salary level.

Third, the salary threshold would be revisited every four years.

If adopted, the final rules would go into effect in January 2020 and would result in an estimated 1,000,000 employees losing exempt status and thus becoming entitled to overtime. The Department of Labor set a 60-day comment period to give interested parties a chance to be heard on the proposed rules.  The final rules will be issued at some point after that.  Employers should pay close attention to the progress of the proposed rules because, if adopted, they will need to determine whether to increase salaries to meet the threshold or reclassify employees as non-exempt.

Keep in mind that many states have different, sometimes more favorable, salary threshold requirements.  Where there is a difference between state and federal law on wage and hour issues, the provision most favorable to the employee must be applied.

Employee Not Covered by the FMLA Gets Day in Court Due to Employer Representations

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The United States District Court for the Western District of Wisconsin recently held that an employer’s misleading statements to an employee regarding the federal Family and Medical Leave Act (FMLA) can lead to liability even if the employee is not eligible for FMLA leave.  Reif v. Assisted Living by Hillcrest LLC d/b/a Brillion West Haven.  In Reif, plaintiff Angel Reif notified her employer’s HR coordinator on January 9, 2018 that she would need surgery and that she wanted to schedule it after she became FMLA eligible.  The coordinator told Reif that Reif would be eligible for leave on January 25, 2018.  Accordingly, Reif scheduled surgery for January 31, 2018, six days after her eligibility date.  When Reif reported the date of the surgery to the coordinator, the coordinator told Reif that she should schedule surgery as soon as possible—before she was FMLA-eligible—and that the coordinator would “work” with Reif so that her FMLA leave would be approved.  The coordinator assured Reif that Reif’s job would be waiting for her when she was ready to return to work.  Based on the coordinator’s representations, Reif moved up the surgery date to a date that was eight days before her FMLA eligibility date and applied for FMLA leave. 

Despite the coordinator’s promises, the coordinator sent a letter to Reif, dated two days after the surgery, stating that the company was denying Reif’s FMLA leave request because Reif did not meet FMLA eligibility requirements.  Just eight days after her surgery, Reif informed her employer that she was able to return to work with some restrictions.  Two weeks later, the employer informed Reif that it had filled her position. 

Reif sued for interference with her FMLA rights.  Her employer asked the court to dismiss the case on the ground that Reif was not eligible for FMLA leave.  The court refused to do so, explaining that “it would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”  In essence, because Reif relied on her employer’s representations to her detriment, the employer would be precluded from arguing lack of eligibility. 

Reif is a reminder to employers that statements promising benefits can bind the employers even if circumstances exist where an employee would otherwise not be entitled to receipt of the benefit.  FMLA policies and procedures should be carefully constructed and scrupulously followed. 

Scabby the Rat is Deflated

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Scabby the Rat is the nickname unions have given to the large, rat-shaped inflatables used by unions when demonstrating at worksites to let the public know that they have a labor dispute with the employer.  In the past, courts have held that the use of Scabby at worksites is a form of speech protected by the First Amendment.  Does that mean unions can locate Scabby wherever they want at a worksite?  A recent decision by the United States Court of Appeals for the Seventh Circuit tells us not necessarily.  Construction and General Laborer’s Union No. 330 v. Town of Grand Chute.

In the case, a union used Scabby to show its displeasure with a Toyota car dealership in Grand Chute, Wisconsin. The dealership had used a masonry contractor that the union alleged did not pay standard area wages and benefits to its employees.  The union anchored Scabby using tethers staked into the ground in a public right-of-way.  The Town, however, had a sign ordinance that prohibited all private signs on public right-of-ways, and so its code enforcement officer ordered the union to remove Scabby.  The union sued, claiming that the Town violated its First Amendment rights.

Generally speaking, most speech is protected from content-based government regulation under the First Amendment.  However, a government can restrict speech in a public forum without running afoul of the First Amendment if the restriction is content neutral, is narrowly tailored to serve a significant governmental interest and leaves open ample alternative ways to communicate a message.  In an earlier decision in the case, the court applied this standard and held that the sign ordinance did not violate the First Amendment because it banned all private signs on public right-of-ways, regardless of content, and was enacted to further public safety—a significant governmental interest—by protecting visibility. 

The issue in this second trip to the Seventh Circuit was whether the Town selectively enforced the ordinance by not uniformly policing all types of speech prohibited under its provisions.  Selective enforcement by the Town would have violated the First Amendment.  The court determined that the evidence showed uniform enforcement.  Therefore, it held that the order to remove Scabby from the public right-of-way did not violate the union’s First Amendment rights.

This case illustrates why municipalities should not only carefully craft, but also ensure uniform enforcement of, sign ordinances.  Given the potential First Amendment pitfalls in regulating signs through local ordinances, municipalities should consider consulting with legal counsel in drafting and implementing them. 

Copyright 101 for Businesses and Artists

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Introduction

You’ve created something original – a painting, a book, a manual, a graphic design, etc. – now what?  Whether you are an artist or a business owner, you have big plans for this original work, but you are not sure how best to protect the fruit of your hard work so that competitors do not use your work without permission or take credit for it.  This article will explain the basic copyright rights you currently have in your original work and how to best protect this asset.  

What is Copyright?

U.S. federal law provides copyright protection for original works of authorship from the moment the work is created in a fixed, tangible form. This means that if the work is independently created, has a minimal degree of creativity, and is written down, recorded or somehow preserved, it has immediate copyright protection.  As the old adage goes: as soon as your pen lifts from the paper, you have a copyright in the work you’ve created. 

What Works Are Protected?

A non-exhaustive list of works that can be protected include:

  • Literary works (books, manuals, etc.)
  • Musical works
  • Dramatic works
  • Choreography
  • Visual art (paintings, sculptures, drawings, diagrams, graphics, etc.)
  • Movies and other audiovisual works
  • Sound recordings
  • Architectural works

What Is Not Protected?

There are certain creations that are not protected by copyright law.  For instance, ideas are not copyrightable because they are not in a fixed, tangible form.  For example, if you have an idea for a new novel, the idea is not protected.  However, once you have expressed the idea in a fixed, tangible form and have written the new novel, it is protected by copyright law.  

Other items which are not protected include: titles, names, short phrases, and slogans.  These may be eligible for protection as trademarks.  For more information about trademarks, see this recent article here.

How Can I Protect My Original Work?

A copyright in an original work of authorship exists automatically once it is in a fixed, tangible form.  However, as the owner of this copyright, you can take steps to enhance its protection by registering the original work with the U.S. Copyright Office.

While registering your work is not mandatory, it is necessary if you wish to enforce your exclusive rights to the copyright through legal action.  Thus, we recommend registering any work in which the public will have access to the work.  Once the public has access to the work, it is more likely that an unauthorized user will infringe on your rights and you will need the full legal protections of registration.

Why Should I Consider Registration?

Here are some benefits to registering your original work with the U.S. Copyright Office:

  • Validity: Registration establishes evidence of the validity of the copyright and the information stated in the certificate when the registration is made before or within five years of publication.
  • Notice: Registration places the public on notice of your rights in your original work.  This can be very helpful in the event you must enforce your rights against someone who is using your copyrighted work without your permission.
  • Legal Action: Registration is a requirement if you wish to pursue legal action against an unauthorized user who is infringing on your rights.  Additionally, registration means you may receive statutory damages and attorneys’ fees, if you are successful in court.  Statutory damages are damages awarded without the need to prove actual loss.  Even if you wish to avoid court, this can be powerful leverage when attempting to negotiate a settlement with an opponent.

How Do I Create a Copyright Notice?

A copyright notice is a statement placed on the work which notifies the public that a copyright owner is claiming ownership of the work.  A copyright notice is not mandatory, but it is recommended.

A copyright notice consists of the following:

  • The copyright symbol “©”
  • The year of first publication or, if the work is unpublished, the year it was created
  • The name of the copyright owner

If William Shakespeare was alive and published Romeo and Juliet today, he would provide the following notice on the play: © 2019 William Shakespeare

This notice should be placed on the work to ensure that the public knows that the author is claiming copyright ownership.

Conclusion

Whether you are a business owner or an artist, you may have valuable copyrights which, in order to obtain effective legal protection, should be registered with the U.S. Copyright Office.  By registering your work, you may take legal action against unauthorized use of the work and are defending your right to ownership.  Without registering your work, you run the risk of someone claiming your work as theirs and losing valuable legal remedies.

If you wish to discuss your original works or any other intellectual property concerns, please contact David B. Billing or Laura Lamansky, the authors of this article, or any of the other attorneys in the Intellectual Property and Entertainment Law practice team of Stafford Rosenbaum LLP. 

Law clerk Joseph S. Beckmann assisted in researching and writing this article.

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