Posted By Francine on August 28, 2010

Are you an information marketer? Do you sell products and/or services on the Internet, including social media sites? Do you consider yourself an eCommerce entrepreneur? Do you use internet marketing strategies as part of your business plan?  If you answered “yes” to any one of these questions, then listen up!

Back in January 2007, you may recall that the FTC (the Federal Trade Commission) the consumer watchdog arm of the US government hosted a workshop to discuss negative marketing.  In particular, the FTC was concerned with negative option offers, such as:

1. Pre-notification negative option plans – This type of negative option plan, such as music, video, audio, or book clubs will send goods to a consumer and charge them if they fail to respond to the offer, such as the monthly book-of-the-month.
2. Continuity plans – Here, the consumer agrees to receive periodic shipments or services, which they continue receiving until they cancel, usually in writing.
3. Automatic renewals – This negative option plan is where the seller, such as a magazine seller, newsletter seller, SAAS (software as a service), or a hosting or domain name provider renews the consumer’s subscription automatically when it expires, and then charges for that service. 
4. Free-to-pay or nominal –fee-to-pay conversion offers – Here, the seller offers a trial version, which converts to a paid or upgraded version, unless the consumer takes affirmative action in the form of canceling or returning goods by a specified date. 

The outcome of the workshop, although it occurred 3 years ago, remains relevant.  Therefore, if you fit into the category of a seller doing any one of the above, this may be the most important blog post you ever read.  And the truth is, if you don’t pay attention now, you may end up paying dearly later. If you know anything about the FTC, you know they don’t play when it comes to consumer safety. 

In the report, which resulted from the workshop, the FTC  identified 5 principles to guide internet marketers who employ negative option offers.  Marketers should:

1. Disclose material terms of the offer in an understandable way
2. Make the appearance of disclosures conspicuous and clear
3. Disclose material terms of offer before consumer pays
4. Obtain consumers’ affirmative consent
5. Not stand in the way of promised cancellation procedures

For specific information on how YOU can stay safe and protect your valuable assets, consider investing in an attorney to interpret the above principles, as they relate to your internet business.

Until next time, I’m Attorney Francine Ward; THINK Asset Protection!

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Posted By Francine on August 22, 2010

Last week I negotiated a pretty good deal for one of my author clients.  She was ready to sign away all of her valuable subsidiary rights, until I stepped into the picture.  Without bragging, I will say, had she not brought me in when she did, she would be tied to this publisher forever—whether or not they did a good job. 

The original agreement from the publisher stated that the any and every book my client wrote, from that day forward, would belong to the publisher. Further that any merchandise, audio or video programs, speaking engagements, and coaching would belong to the publisher.  Because of my ability and skill in focusing on intellectual property issues, she was able to keep all the rights she wanted to keep. 

This situation could have turned out quite badly.  Fortunately for her—it did not.  But this scenario got me thinking about how little most content creators understand about their rights. So today’s post will discuss the rights a copyright owner has in their original content.

Subject to certain limitations, a creator of content, or other original works of art and/or authorship, has a number of exclusive rights granted to them by the Copyright Act (See 17 USC §§§106, 113-118).  As the copyright owner, you have the right to:

• Reproduce the copyrighted work – i.e., you can make copies and duplicate your work;
• Prepare derivative works based on the work – i.e., you can repurpose your work and turn a book into a movie, speech, coaching program;
• Sell, rent, lease, or lend the work – i.e., you can license your work in a variety of venues;
• Perform or present the work publicly – i.e., record your music, share your speech, perform your choreographic work;
• Display the work publicly – i.e., post your photographs online or in a gallery, and
• Authorize others to do any of the above.

Since you have the right to do all of the above, once you create original and tangible works of art, next time you write a book, take a fabulous photograph, design a cool website,  write a poem or a piece of music or a screenplay, think about how precious and valuable that work really is.  If you think in terms of ALL the valuable rights you now have in that one item, you can understand why you should protect it.

Until next time, THINK ASS-et Protection!

Category: Acceptance and offer, Authorship tips, Copyright Information, Copyright protection, Copyrights, How to protect a copyright, author, copyright rights, how to protect content, writer | No Comments »
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Posted By Francine on August 20, 2010

BEWARE!  I can’t stress enough how, despite the ease of use, you must be aware of the social media landmines lurking behind your computer screen. Each and every day someone else discovers–the hard way–what can happen when you are not paying attention, while playing in the social media sandbox.

This week, Massachusetts high school teacher June Talvitie-Siple discovered that  she should “think before she tweets”  or in this case, before she posts!   

A math and science teacher at Cohasset High School in Cohasset, MA was asked to resign as a teacher, when enraged parents saw comments she posted on her Facebook wall.  The teacher’s comments described the High School students as “germ bags”, and their parents as “snobby” and “arrogant.”

It just goes to show that just because you feel a certain way doesn’t mean you should post your feelings onto Facebook or any social media site.  A dangerous scenario is an angry person holding a computer more. Check out the story on ABC News (http://tinyurl.com/3ytx6bk)

Until next time, Think ASSet Protection!

Category: Blog Law, Facebook, Facebook and the Workplace, Internet law, Litigation lawsuit, Mark Zuckerberg, Protection of Assets, Socia media in the Workplace, Social Media in the Workplace, litigation landmines, slander defamation, social media policy | No Comments »
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Posted By Francine on August 7, 2010

Yesterday I got a phone call from a distressed client, who was upset because her wedding photographer sent her a letter stating she could not post her wedding photos on her website. She was livid, saying to me that she paid $4700 for her wedding photos, and that she should be able to do anything she wanted with them. 

After I calmed her down—just a little—I told her that in fact, the general rule was that the person who creates the work, including photographs, is the person who owns the copyright in that work.  And that being the case, they could prevent anyone else, including the person who paid for the work, from reproducing, displaying, posting, distributing, or repurposing those photos in any way.

So here is a quick primer on copyright ownership. The general rule is that the person who creates a work of art and/or authorship owns the copyright in that work.  The exception is if there is an agreement, which states otherwise, or the work is a work-made-for-hire.  Work-made-for-hire occurs in one of two situations:

1. When an employee creates a work within the scope of their employment, unless an agreement states otherwise, the work they create belongs to the employer, and NOT the employee who actually created the work;
2. When an independent contractor is hired to create a work of art and/or authorship, such as to develop a web site, write a book, write an article or blog, take a photograph, write a screenplay, or shoot a video, it is the independent contractor who owns that work, unless an agreement to the contrary exists.

Hope this is helpful. Until next time, think Asset Protection!

Category: Copyright Information, Copyright Ownership, Copyright law, Copyright protection, Copyrights, Work Made for Hire, Work for hire, copyright rights | No Comments »
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Posted By Francine on August 5, 2010

Sometimes I forget that the average person doesn’t understand the very basics of copyright law, such as how long a copyright lasts, what is a copyright, how to protect your copyright, copyright registration.  Therefore, one aspect of my job is to educate people–not just my clients, but anyone interested in learning about Copyright Law, Trademark Law, Social Media Legal Issues, Publishing Book Law, Contract Law, Privacy Law, and any other related topic areas. 

If you are creating a work of art or authorship today, or if you created something after 1978, then your copyright protected work will last for the life of the copyright holder + 70 years. If the work is a work made for hire, the duration is 95 years from the date of publication, or 120 years from the date of creation. 

If you have any questions you’d like answseted, feel free to comment and start a converstaion or post to my Facebook Business Fan Page (www.facebook.com/francineward)

 Until next time, think ASSET Protection!

Category: Copyright Duration, Copyright Information, Copyright law, Copyright protection, copyright rights | No Comments »
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Posted By Francine on July 30, 2010

This week my blog will discuss copyright basics.  We’ll explore what is a copyright, duration of a copyright, what does a copyright protect, infringement, and defenses to a claim of copyright infringment.

Let us start by defining a copyright. A copyright is an original work of art or authorship, which has been  reduced to a tangibe form.  A copyright protects both published and unpublished works in a number of categories:

• literary works,
• visual art works,
• sound recordings,
• architectural works,
• performing art works.

A copyright protects novels, nonfiction books, podcasts, articles, web site content, videos, musical compositions, sound recordings, motion pictures, cartoons, computer software, and choreographic works, just to name a few.  A copyright does NOT protect ideas not fixed in a tangible form, anything that has lost it’s copyright protection, anything in the public domain, book titles, names, short phrases, concepts, processes, and methods.

 If you are a content creator, think about protecting your valuable intellectual property. In the next few posts, we’ll briefly explore how to protect your work, and other copyright basics. The US Copyright Office has created an interesting short video demonstrating what is a copyright (http://www.loc.gov/teachers/copyrightmystery/#/copyright/).

Okay, until next time, think ASSET Protection!

Category: Copyright Information, Copyright infringement, Copyright law, Copyright protection, Copyrights, How to copyright, How to protect a copyright, Uncategorized, author, how to protect content | No Comments »
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Posted By Francine on July 22, 2010

Facebook owner and CEO could lose 84% of his company. Why? Because he wasn’t paying attention to the protection of his valuable intellectual property.

Back in April 2003, Mark Zuckerberg signed a contract with web developer Paul Celia, which could mean that Celia, and not Zuckerberg owns Facebook. Newspaper reports allege that Zuckerberg agreed to the following:

1. Pay Paul Ceglia $1,000
2. Plus 50% of the profits
3. Plus an additional 1% for each day of work beyond Jan. 1, 2004, until the work was completed.

Facebook CEO was smart enough to at least have a contract when hiring someone to develop his new social media web site, but wasn’t smart enough to understand what was in it. Why not? Because:

1. He probably didn’t have a lawyer prepare it,
2. Probably didn’t read it, and
3. If he read it, he likely didn’t understand what it said.  

Possible outcome—he could lose his billion dollar baby.  And that’s how easy it can happen.  When you’re not paying attention, you can lose what is most valuable to you—your content, your trademarks, your business, your estate, and even your family!

Lesson for ALL entrepreneurs and small business owners—cover your Ass-ets!

1. Have agreements with everyone you do business with
2. Read all contracts carefully BEFORE you sign on the dotted line
3. Understand every word in the contract, before you sign, because every word has a meaning.

ABA Journal, http://tinyurl.com/28fabu6

Until next time, think ASSET PROTECTION!

Category: Copyright protection, Copyrights, Facebook, Francine D. Ward, Francine Ward, How to protect a copyright, Mark Zuckerberg, Money saving ideas, content protection, contract law | No Comments »
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Posted By Francine on July 10, 2010

Oftentimes I hear small business owners and entrepreneurs say they don’t have time to read, because they have so many other commitments to tend to. I personally believe that’s a mistake. Tending to our craft is akin to watering our garden. And, I believe a mind is a terrible thing to waste. With so many cool technological options for consuming information, we have choices.

Recently I was asked, what magazines, newspapers, programming, and other information sources do I use to support my business and my mind? I personally read a variety of periodicals for my professional & personal development needs, which include legal, business, and coaching. The following are among what I find most useful each month:

1. An assortment of legal periodicals, books, and websites to stay on top of my craft as an IP business lawyer;
2. Non-legal include: Fortune, FORBES, PINK, Executive Summaries, CHOICE, & SPEAKER;
3. Relevant Webinars & Telecourses;
4. GOOGLE Alerts and blogs on a daily basis for topical information;
5. Crossword Puzzle books to keep my mind sharp and alert.
6. O-Magazine, MORE, and Real Simple for my personal development.

You might be thinking, “My God, when does she have time to work?” My answer to that is when I’m tending to the important aspects of my life (strengthening my mind, my body, and my spirit) I am able to do so much more, so much better. It’s amazing how that works.

Okay, what about you—what do you read or listen to, which keeps you on top of your game?

Category: Personal Development, Professional Development Strategies, Professional development | No Comments »
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Posted By Francine on July 5, 2010

It’s a beautiful thing when you put together the mostly poor, the mostly forgotten, and the mostly forlorn with a group of caring law students, and two men with a big dream and an even bigger heart. What do you get? The Innocence Project!

The Innocence Project (www.innocenceproject.org) is a nonprofit legal clinic, which has an affiliation with the Benjamin N. Cardozo School of Law at Yeshiva University (http://cardozo.yu.edu/info.aspx?cid=2986 ). It was created by Prof. Barry C. Scheck and Peter J. Neufeld in 1992. It is a litigation and public policy organization, which is dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.

In reading the Summer 2010 (Volume 6 issue 1), I was once again sadden by the number of people who have been wrongfully convicted through the use of false confessions. And, it disturbed me even more to discover that my home state of New York is a leader in false confessions cases. Since 2002, twenty-six New Yorkers have been exonerated through DNA testing, and 12 of those wrongful conviction cases involved false confessions. The numbers are astounding.

Of the first 250 people The Innocence Project exonerated through DNA testing, here are some interesting facts:
• 29% were Caucasian;
• 17 innocent persons served time on death row before they were exonerated;
• 19 pled guilty to crimes they didn’t commit;
• 84% were wrongfully convicted of sexual assault.

If you are interested in reading more FACTS about false confessions and how The Innocence project helps exonerate those who are innocent read these FACT SHEETS: (http://www.innocenceproject.org/news/Fact-Sheets.php) .

Until next time, Ask yourself, how can help?

Category: Barry Scheck, DNA Testing, False Confessions, False Convictions, Innocence Project, Peter Neufeld, The Innocence Project | 1 Comment »
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Posted By Francine on June 28, 2010

In a long awaited decision, the US Supreme Court has finally spoken, as to what is and what is not a patentable item. The US Supreme Court upheld the decision by the Federal Circuit stating that you could not patent a business method process. While this may be good news for those who have inventions, it is a sad day for those creative people with useful business methods and processes. So, if you thought you’d get a patent for that brilliant business process you came up with, you’re out of luck.

In a prior decision, the Federal Circuit Court (the court which most often hears patent cases) held that a process could be patentable under the US Patent Act, 35 U. S. C. §101—if the invention produced a “useful, concrete, and tangible result…. (See, e.g., State Street Bank & Trust Co v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373). Then, that same court rejected its own prior test for determining whether a process is patentable, and held instead that a process is patent eligible if one of two things occurred:

1. it is tied to a particular machine or apparatus, or
2. it transforms a particular article into a different state or thing.

With this being the new legal test for whether a process or business method is patent eligible, it will be almost impossible for any business owner with a creative process to have that process protected by a patent.

If you are interest in reading the full Supreme Court opinion, here is the citation and the link is below:
BILSKI ET AL. v. KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE ||| CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT — No. 08–964. Argued November 9, 2009—Decided June 28, 2010

http://www.supremecourt.gov/opinions/09pdf/08-964.pdf

Category: Business entity, Supreme Court, patent, patent application, provisional patent | No Comments »
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