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Thursday
Jun262014

U.S. Supreme Court Pulls Plug on Aereo

 

Franchise Agreement LawyerCopyright Attorney

 

by Tal Grinblat
818.907.3284

 

For eight dollars a month, customers in 10 metro areas could watch real-time television broadcasts or record programming via computer and smart devices, courtesy of a company called Aereo.

For consumers, it was like having access to a cable company's digital video recorder (DVR) box on your cell phone. For the entertainment studios and program creators though, it was like giving a thief the keys to the store. 

Copyright Law

Chet Kanojia, founder and Chief Executive Officer, launched the startup last year, and immediately faced allegations of copyright infringement, since Aereo neither owned rights to the programming, nor was licensed to perform the work publicly. The plaintiffs first sought a preliminary injunction in Federal District Court – that petition was denied.  A Second Circuit Court of Appeals upheld that denial.

Yesterday, the U.S. Supreme Court found that Aereo violates the federal Copyright Act of 1976 (The Act). The Court considered two issues. First, did the internet company "perform copyright work publicly", as described in §106(4), and second, whether or not Aereo "transmits a performance" as described under §101 of The Act.

Aereo claimed it didn't perform anything, it merely offered its subscribers the software that does what a TV antenna or DVR would do. This software simply responds to the subscribers' instructions. The company bolstered its defense with technical explanations of how they operate:

Thousands of tiny antennas stored in warehouses capture broadcast signals, and each antenna is assigned to an individual Aereo customer. No two customers are watching the same copy of the program being broadcast or recorded; therefore, there is no public performance by Aereo.

Chief Justice Stephen Breyer writing yesterday's opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, John Roberts and Sonia Sotomayor. The Justices disagreed with Aereo's defense:

The fact that each transmission is to only one subscriber, in Aereo's view, means that it does not transmit a performance "to the public.". . . these differences do not distinguish Aereo's system from cable systems, which do perform "publicly." . . . We do not see how the fact that Aereo transmits via personal copies of programs could make a difference.

 

Blame Cable TV

Before the 1976 amendment to the 1909 Copyright Act, cable television companies (known then as "community television antenna systems" or CATVs) intercepted broadcasts to relay the signals to their own paying customers. That was considered legal until lawmakers closed the loophole by writing in what's now known as the "Transmit Clause".

This clause makes these retransmissions copyright infringement. Section 101 says:

A “transmission program” is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit; and to “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

Section 106 of The Act gives a copyright owner exclusive right to perform the work publicly.

Tal Grinblat is a Shareholder in our Intellectual Property Practice Group. Contact him via email: tgrinblat@lewitthackman.com or by phone: 818.907.3284.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Jun192014

2nd Down: Washington Redskins Franchise Loses Trademark Territory

 

Franchise Agreement LawyerState Bar Certified Specialist, Franchise & Distribution Lawby Tal Grinblat
818.907.3284

 

Yesterday's U.S. Trademark Office's ruling that six of the Washington Redskins' trademark registrations – some  owned since 1967 – are disparaging and should be cancelled, have some wondering whether any trademark is safe.

Trademark AttorneyWhat’s to prevent a group of people in the future coming together and claiming that the Minnesota Vikings or New York Yankees registrations are disparaging to people of Scandinavian descent, or to those who reside in the North Eastern United States? Should they be cancelled as well?

With the promised appeal of this decision, it is clear the Redskins franchise won't have to change their name anytime soon.  But the question persists: can marks be deemed disparaging over time, and then be subject to attack?   

In its ruling, the USPTO’s Trademark Trial and Appeal Board, found the following:


  • The word REDSKIN on its face is and always has been a racial designation.

  • The word REDSKINS is a plural of the word REDSKIN.

  • The word REDSKIN on its face refers to the real or imagined skin color of Native Americans.
  • Racial slurs often refer to real or imagined physical differences.

  • Before 1966 no dictionary in the record included a usage label for the term REDSKIN.

  • Beginning in 1966 and continuing to 1990, usage labels in dictionaries indicating the term REDSKIN to be offensive, disparaging, contemptuous or not preferred, first appear and then grow in number.

  • From the mid-1960’s to 1996, the word ‘redskin(s)’ has dropped out of written and most spoken language as a reference to Native Americans.

  • From at least the mid-1960’s to 1996, the words ‘Native American,’ ‘Indian,’ and ‘American Indian’ are used in spoken and written language to refer to Native Americans.

  • The usage labels appear and the use of the word redskin(s) disappears because it is increasingly recognized that the term is offensive and disparaging during the relevant time period as Native Americans raise awareness about the offensive nature of the term redskin(s).

The Board concluded that “petitioners have shown by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame of 1967-1990." Accordingly, the Board held the six registrations must be cancelled as required under Sections 2(a) and 14(3) of the Trademark Act.

 

USPTO: Second Down and Years to Go

So what is the import of the Board’s decision?

First, much will depend on the appeal and whether the Redskins franchise is able to persuade the Federal Circuit that the Board was wrong again (this is the second time the Board held the marks disparaging, the first decision was later overturned by the courts due to the equitable defense of laches).  The Redskin registrations will remain effective while the case is on appeal.

Second, even if the Board’s ruling is upheld, the Board’s power is limited to cancelling the registrations.   The team will continue to own and be able to protect its marks without the registrations based on common law rights. So while the team will lose some presumptions and statutory benefits of owning their registrations – even without the registrations – the team can still monitor, police and pursue infringers.

 

The Red Zone: Political Correction, Tradition, and Federal Law

But there are other factors at work as well. 

Growing pressure from notable politicians – including 50 senators asking the NFL to initiate name change efforts – civil rights groups like the NAACP, and coalitions representing Native Americans, is on the rise. Proponents for the change say the league should be more politically correct overall, since the NFL is the recipient of federal tax breaks. 

The 50 senators who signed the letter to NFL commissioner Roger Goodell cite several laws protecting Native American Culture, including the American Indian Religious Freedom Act, the Native American Languages Act, the Indian Arts and Crafts Act, and the Native American Graves Protection and Repatriation Act. They also cited the Donald Sterling/Clippers controversy as reason to get professional sports leagues to clean up their branding.

So in the end, even if the Redskins can legally continue to use their name (with or without a registration), the ultimate question will be whether the political pressure will be too overwhelming and change becomes inevitable. 

Tal Grinblat is a Trademark Attorney and Shareholder at our firm. Contact him via email: tgrinblat@lewitthackman.com, or 818.907.3284.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jun112014

Employers: Ready for California's Minimum Wage Increase?

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

 

 

Last September, Governor Jerry Brown signed Assembly Bill 10 into law, beginning a series of increases in minimum wages for California workers. The first increases under AB 10 is about to go into effect.

On July 1, 2104, the minimum wage in California will increase from $8.00 to $9.00 per hour.  This wage hike will have a wide-ranging impact on all California employers. 

For example:  

  • Non-exempt employees paid less than $9.00 per hour must receive an increase in pay.

  • Certain exempt employees (executive, administrative, professional) must receive a monthly salary of at least twice minimum wage on a salaried basis (as well as meet other exemption requirements).  Effective July 1, 2014, the minimum monthly salary for exempt employees increases to $3,120.  Employees paid less will no longer meet the exemption.

  • Inside sales employees under Wage Orders 4 and 7 must earn more than 1½ times minimum wage for all hours worked (they must also receive more than 50 percent of their compensation from commissions).  As of July 1, 2014, to qualify as exempt, such employees must be paid at least $13.50 per hour. 

The revised California Minimum Wage Official Notice should be posted next to your IWC Wage Order and other required workplace postings. 

Since 2012, California employers have been required to provide written notice to non-exempt employees containing certain information, including rate of pay.  The DLSE form Notice to Employee can be used for this purpose. 

Employers who have already issued this wage notice do not have to reissue as a result of the minimum wage increase provided the new wage rate is shown on the employee’s pay stub (itemized wage statement) with the next payment of wages.

Now is a good time for employers to audit their pay practices to ensure compliance with wage and hour laws.  If you have questions or need assistance with an audit, please contact me.

 

Other Minimum Wage Hikes

Minimum wages in California vary by city or county.If you're doing business in the Bay Area, be aware that the Richmond City Council voted to increase wages for workers in that city to $13.00 per hour by 2018 for most employers – higher than the current minimum wage in San Francisco ($10.74/hr).  Minimum wage in San Jose is currently $10.15 per hour.

This one isn't mandated by law yet, but employers should take note the California Senate recently approved a different set of increases, set to go before the Assembly. These proposed increases, if approved, would raise minimum wage to $11.00 per hour in January 2015, $12.00 in 2016, and $13.00 in 2017.

Already in place, Assembly Bill 10 will increase wages again to $10.00 per hour on January 1, 2016. 

 

Nicole Kamm is an Employment Defense Attorney at our firm. Contact her directly: 818.907.3235; nkamm@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May282014

What Happens in a Personal Injury Case After a Lawsuit is Filed?

Injury Attorney Los AngelesInjury Litigation Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discuss what a client can expect during various stages of a personal injury case. This post addresses what happens after a lawsuit is filed.

Have you ever heard someone refer to a case as being in “litigation”?  Well, if your attorney files a lawsuit in your case, you will be in “litigation” – it's simply the process of suing someone.

NOTE:  being in “litigation” and going to trial are not synonymous.

Personal InjuryAn overwhelming majority of the cases in which lawsuits are filed never go to trial, as they are settled prior to that point. When they do go to trial, it will usually take at least 12-18 months to get to that point, if not longer. So if you hear that your attorney has filed a lawsuit, don't panic. You are not automatically headed to trial.

Prior to filing the lawsuit, your attorney was most likely dealing directly with an insurance company and its adjuster. (Read the first post in this series: What Happens in a Personal Injury Case After You've Hired a PI Lawyer? Once a lawsuit is filed, the process changes and your injury lawyer will deal with an attorney for the insurance company.

Personal Injury Litigation:
Service of the Lawsuit 

The first step after filing the lawsuit with the court is to literally put the lawsuit in the defendant’s hands. This process is known as serving the lawsuit, and in most cases the courts require the lawsuit be served personally to the defendant.

Your PI attorney will hire a registered process server to go to the defendant’s home or work and attempt to personally give the defendant the paperwork for the lawsuit. Depending on how many defendants there are in your case and how difficult it is to find and serve the defendants, this process can take several weeks, if not more.

Once a defendant is served with the lawsuit,he or she generally has 30 days to formally respond in court. A defendant who is served with a lawsuit should immediately turn the paperwork over to his or her insurance company, assuming there is insurance coverage.

The insurance company will then either assign in-house counsel to handle the case, or hire an outside attorney for defense. In either situation, the attorney who is selected will now be officially representing the defendant.

The Discovery Process

Once the defendant responds, both parties can proceed with the litigation. The next step involves written discovery. This is where the parties attempt to get information from each other through a series of written questions, written requests for the other side to turn over relevant documents, and written requests for the other side to admit certain facts regarding the case.

Your role in the process will generally be in providing answers – to the other party’s questions, and in gathering documents for your attorney.

Many times attorneys will merely exchange e-mails or letters with the client, or maybe have an assistant meet with the client, to obtain the requested answers. In our office, whenever possible we prefer to meet personally with you to go over the requested information and discuss the answers to be provided. This is yet another opportunity for us to meet face to face with each other to discuss the case, and for us to continue to learn about you and what you’re going through.

Injury Litigation Depositions 

After the written discovery phase, the parties continue to discover information about the case by taking depositions. A deposition is the only time before trial that the other attorney can directly ask you questions prior to trial.

I will explain the deposition process in detail in a later blog, but remember, this is not your “day in court.”  This is the time when you respond to questions asked of you by the other attorney. Your “day in court” will come later in trial, if your case gets to that point.

Defense Medical Examinations

After your deposition, if you are either still receiving medical care or experiencing any symptoms from your injuries, most defense attorneys will have you evaluated by a doctor of their choice.

Although this is officially referred to as an “Independent Medical Examination,” there is nothing “independent” about it. The supposed “independent” doctor is hired directly by the insurance company's attorney to give the opinion the insurance company wants to hear: that your injuries are minor, nonexistent, or not related to the accident caused by the defendant. This is why most plaintiff attorneys typically refer to this as a Defense Medical Examination. I will discuss this in further detail in a future post as well.

Injury Settlements

Once all parties have obtained enough information, we will be in a position to discuss a settlement. Such discussions can occur informally between the attorneys, or in a more formal setting of a Mediation or Mandatory Settlement Conference. In personal injury mediations or settlement conferences, a neutral third party – an attorney, retired Judge, or active sitting Judge – will assist the parties in trying to reach an agreement.

If, and only if, the parties are unable to reach a settlement, will the case go to trial. Again, this will be at least a year after filing the lawsuit, and in most personal injury cases in Los Angeles, more likely 18 months or more after initially filing the lawsuit.

So when you hear your attorney say that a lawsuit has been filed in your case, stay calm. As you can see from the above, there are many steps to be taken, and much time will pass, before your case will go to trial, if it ever does.

What happens when you go to trial? I'll tackle that question, as well as several of the procedures discussed above, in greater detail in future postings.

 

David B. Bobrosky is an experienced Accident Lawyer and Shareholder in our Personal Injury Practice Group. Contact him for a free consultation: (818) 907-3254 or dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
May202014

Victory for Sperm Donors: Appeals Court Rules in Favor of Jason Patric

 

by Lovette T. Mioni

 

 

Jason Patric, perhaps best known for his role in the movies Lost Boys or Speed 2, scored a landmark victory in a California Appeals Court last week, regarding paternity rights for his son Gus. Gus was born via artificial insemination and Patric was the sperm donor for Gus's mother, Danielle Schreiber.

When the couple split in 2012, Schreiber cut off all contact between Gus and Patric. Schreiber claimed Patric was the donor of sperm only, and cites a 2008 letter in which Patric said he was not ready to be a father.

California Family Code Section 7613(b) says a sperm donor is not a presumed parent, unless otherwise agreed to in writing by both parents. In reliance of this statute and previous court rulings, a Los Angeles trial court granted full custody to Schreiber, and denied Patric access to Gus.

A California Court of Appeals reversed on May 14th, directing the trial court to now determine whether or not Patric can be deemed a presumed parent under Family Code Section 7611. The battle isn't over, but the reversal gives Patric an opportunity to seek legal rights as Gus's parent.

Conditions of Presumptive Parenthood - What Do They Mean For Sperm Donors?

Both Family Code Sections 7613 and 7611 fall under the Uniform Parentage Act, which determines a parent-child relationship.

Once the relationship is officially decided, a parent can apply for child support, custody, visitation, and more, on behalf of the child. The California legislature did not specifically address the rights of sperm donors in the UPA. However, several conditions may determine when someone can be considered a presumed parent if:

Paternity Law California1. A presumed parent and mother are or were married, or a child was born within 300 days after a marriage ended;

2. The parties attempted to marry before the child was born but the marriage was invalid;

3. The presumed parent and mother married or attempted to marry after the birth of the child, and the presumed parent is named on the birth certificate or obligated to provide support under a written agreement or court order

4. A presumed parent receives the child into his/her home and openly hold the child out to be his or her natural child

5. The child is conceived after the death of the presumptive parent, under certain conditions

Citing previous case law and the conditions for presumptive parenthood, the Appeals Court in the Patric case said:

a sperm donor who has established a familial relationship with the child, and has demonstrated a commitment to the child and the child's welfare, can be found to be a presumed parent even though he could not establish paternity based upon his biological connection to the child.

Further, the court ruled that Patric did not have the opportunity to show the trial court – per condition #4 above – that he received Gus into his home and openly showed that Gus was his natural child.

Based on the Appeal's Court remanding the matter back to the trial court, Patric now has a fighting chance. It's possible that this landmark reversal could spur a change to California Family Law Code as well, giving sperm donors more parental rights in the future.

Contact our Family Law Practice Group Attorneys for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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