Legal fees: 7 ways that YOU may be contributing to a higher legal bill

No one loves legal fees and with the advent of the internet, and all of these “free” forms and information online that people now have access to, many lay people seem to think that paying for a lawyer’s time is overrated or that you could have obtained the same information elsewhere for a fraction of the cost. If you are starting with that mindset, you are setting yourself up to be frustrated with your lawyer and with the inevitable bill. If that is you, save yourself and your potential lawyer some aggravation…don’t engage an attorney. Take your chances with whatever you can find online, which may or may not be right for you and your situation, and run with it. No, really. It’s not with the frustration for either of you. No business, lawyers/law firms included, want to deal with a disgruntled client/customer that is going to nickel and dime them because they think they could have gotten a better deal elsewhere. There may always be someone “better qualified” or “cheaper” although the two don’t usually coincide with one another. The question then becomes, can you have a good working relationship with your lawyer? That’s what you really want.

If you do decide to move forward with an attorney, understand that there are things that YOU might do that can make your lawyer bill even more expensive:

1) Thinking that your situation is “simple” and being stuck in that mindset even when you are told that your situation isn’t “simple.” The matter may be simple to you, but that’s because you aren’t going to think of all the same things your lawyer is. Most matters are far more complex than what a client thinks it is. The more complex a matter is or the more complex the lawyer says it is, the higher the bill will likely be. Expect it.

2) Taking a free legal template document (which is SO basic it that it likely doesn’t actually cover what you need to accomplish your goals) and asking a lawyer to review it. Chances are, no lawyer is going to look at that and think that it is a legal masterpiece; but you are going to pay them to look at it anyway, and it’s likely going in the garbage. If that is where you are starting, you are better off asking the lawyer to draft and agreement or other legal document from scratch. At least then you aren’t paying for their time to read something that they likely won’t use in the first place.

3) Not being forthcoming with information to begin with. You have to remember that your attorney doesn’t know the matter or the parties like you do. It is up to you to help get your attorney up to speed on all the specifics and timely provide them with the information they request. You also have to remember that if your attorney’s job is to help protect you from some other party or risk, they are going to assume, and try to prepare for, the very worst. If you have a good lawyer, they are likely going to dig and ask questions to help them do that. Some questions you may not be comfortable answering but it is best to answer them anyway because if you don’t, and your attorney is suspicious of the situation, they will dig for themselves and you will be expected to pay for their digging.

4) Providing hasty inadequate answers to, or otherwise failing to actually address, your lawyer’s questions. If a lawyer doesn’t feel they are getting the whole story, a good one will dig for more information to find the answers to their questions and it will likely be done at your expense. It’s better to be forthcoming and provide as much information as is requested or possible (it’s better to over disclose than under disclose) and provide such information in a methodical and organized manner as you can. Don’t just dump a bunch of papers in a box and say “Here ya go!” Your lawyer will charge you the time it takes to organize all of the materials.

5) Providing incorrect answers to your lawyer’s questions. A good lawyer will trust the information they are given but will also verify the information provided. If your attorney finds even one answer wrong/inconsistent from prior statements given to them, they are not going to trust what you (or whoever) are telling them and will have to verify all of the information given to them. You should always back up your statements with the documents supporting your statements. The more time your lawyer has to spend verifying the accuracy of the information that has been provided, the bigger the bill.

6) Not heeding warnings and advice of your lawyer. A lawyer can never protect you from all risk, but they can tell you when there are major red flags and discuss ways to avoid it. Asking your lawyer to move forward, especially when you want to be cutting corners on recommended due diligence, increases the risk of the transaction or situation and also makes the attorneys job 10 times harder than it needs to be. This is because without the proper information they have to try to plan for, and anticipate, all of the unknowns. The longer and harder your lawyer has to think, especially where there are unknowns, the higher the bill is likely to be.

7) Being “needy.” Attorneys aren’t often called “counselors” for nothing. Many situations can be very emotional and often people want to rely on their attorney for emotional support, a safe ear, and a constant source of reassurance. It happens to the best of us! At the same time, if you are the type of person that desires a lot of interaction and attention from your attorney, you should plan on and be prepared for, a higher bill. Why? Well, you have to think that even though you are a valuable client, chances are, your lawyer has other clients and projects. If they are in the middle of a project, and you call or keep sending text messages or emails, that interrupts their train of thought and their attention is diverted to you. Your attorney has to reorient their brain to address your call, text or email and then, when they are done with your matter, they have to again reorient their brain back to whatever it was they were working on and try to figure out where they were. It can be much like working from home when you have a few small, and unattended, children. The time that they give you to vent, be it on the phone, text or via multiple emails, and the time it takes them to reorient themselves back to their prior project, may very well end up on your bill and you should expect it. Just assume a .1, at least, to be on your bill, for every communication you initiate. Your attorney may be kind and write off some time, but you shouldn’t expect it.  Think about it…would you go to work and then tell your boss to deduct money from your pay check even though you spent time on work projects for your boss?

Lawyers can be expensive but you can lessen the financial burden by giving a little more consideration to how you interact with your lawyer. The more work or hand-holding they have to do, the bigger your bill will likely be, regardless of how “simple” you think a task. Help them, help you.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

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What does your workload and Thanksgiving have in common?

Working diligent and effectively at all things in life is good. At the same time, when you are diligent and effective, others can see that as an opportunity to pile you up with more tasks and that can be a slippery slope. Saying “no” (realistically) early and often when you start getting overwhelmed is important for your well being and helps set boundaries with those lovely little “task delegators.”

Think of your workload like food. You can pile a mound of food on your plate like it’s a Thanksgiving feast, and you want to be sure and take a little bit of everything so not to offend anyone who contributed to the meal, but the reality is, your stomach is only so big and you can only eat so much at a time, right?  Even if you gorge yourself to the point of not being able to move…you become sluggish and tired and likely feel like crap.  Am I right?  Hey, we’ve all been there!  And what would happen if you continued such a “Thanksgiving feast” heavy eating pattern on a daily basis?  Never saying no to the food?  You’d likely grow to an unhealthy weight and be perpetually sluggish and tired – along with the development of other ailments like sleeplessness. Similarly, it’s important to remember that your plate is only so big.  If you pile the plate high enough, eventually food falls off the plate, onto the floor, and likely ends up in the trash, right?  So how do we normally manage a full plate of food?  Well, you take a little bit – eat it all – and if you’re still hungry, you go back for seconds, right?

Your workload, in the office or in life, is no different. You can’t live every day like it’s Thanksgiving and you can’t say no to great grandma Jean’s corn pudding or aunt Suzie’s pumpkin cheesecake.  It will literally make you less effective and likely sick – in more ways than one.  When people are trying to delegate more than what you can reasonably handle, recognize this!  Say “no” (and mean it) early and often to protect your health and sanity.

Until next time friends…

Data Privacy: Do most people even deserve it?

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold.  This is especially true if the website is free for me to use. 

Okay, before we get going, realize that this article is not discussing things that we would like to think is relatively safe and secure…like banking and health records.  Even then, please repeat the statements above because even for those situations it still holds true.  What I’m going to talk about is the more run of the mill websites and platforms that everyone uses.

The truth of the matter is, most people never read a website’s terms of service or privacy policy and readily click the “I agree” or “I accept” button without knowing if they have just agreed to give away their first born or shave their cat.  Or, to be more realistic, that a free to use website which you don’t have to spend a penny to use is likely to track your behavior so they can render you ads of products and services that you might be interested in and/or sell aggregated data and/or your email address to marketers or other businesses that might be interested in you as a customer or to learn more about consumer habits in general.  Hello people…NOTHING IS FREE!  Indeed, most humans are lazy as sh*t when it comes to all of that reading and so forth because really, who in the hell wants to read all that?  Hey, I’m guilty of it myself,  although since I write terms of service and privacy policies as a way to make a living sometimes I will read them for pure entertainment.  Don’t judge me…I’m a nerd like that.

We are quick to use, click or sign up on a website without knowing what it is that we are actually agreeing to or signing up for…because we want entertainment and/or convenience…and we want it NOW.  Talk about an instant gratification society right? Think about the following situations as an example: Go to the grocery store and buy ingredients then take another 35-40 minutes to make dinner or simply use an app to order pizza? Send someone a handwritten letter through the mail (snail mail) or shoot them an email? Sit down and write checks or schedule everything through bill-pay? Pick up a landline phone (they do still exist) and call someone or send them a text from your mobile device?  Go to the local box office and purchase tickets to your favorite concert or buy them online? Stand in line at the theater for tickets or pre-pay on an app ahead of time and walk right in using a scan code through that app? Remember and type in your password all the time or ask your computer or use your thumb print to remember it all?  Take pictures with a camera that has film, get it developed and send those images to family and friends or take pictures with your phone and instantly upload them to a social media platform like Facebook to share with those same people, for free? By now you should be getting my point…and that is that we want convenience, and technology has been great at providing that, but for that convenience we often forget the price that is associated with it, including a loss of data privacy and security.

Low and behold, and not surprisingly (to me anyway), something like the Facebook – Cambridge Analytica situation happens and Every. Damn. Person. Loses. Their. Mind!  Why? Well, because mainstream media makes it into a bigger story than it is…and suddenly everyone is “conveniently” all concerned about their “data privacy.”  So let me get this straight: You sign up for a FREE TO USE platform, literally spend most of your free time on said platform pretty much posting everything about yourself including who your relatives are, what you like and don’t like, the last meal you ate, your dirty laundry with a significant other, spend time trolling and getting into disputes on bullsh*t political post (that are often public posts where anyone can see them), check in at every place you possibly go, upload pictures of yourself and your family…all of this willingly (no one is holding a gun to your head) and you are surprised that they sell or otherwise use that data?  How do you think they are able to offer you all these cool options and services exactly? How do you think they are able to keep their platform up and running and FREE for you to use?  At what point does one have to accept responsibility for the repercussions from using a website, signing up or clicking that “I agree” button?  Damn near ever website has a terms of service and privacy policy (if they don’t steer clear of them or send them my way for some help) and you SHOULD be reading it and understand it…or at least don’t b*tch when you end up getting advertisements as per the terms of service and privacy policy (that you didn’t bother to read)…or any other possible option that could be out there where someone might use your information for – including the possibility that it will be used for nefarious purposes.

I’m not saying that general websites/platforms that house such content shouldn’t have reasonable security measures in place and that terms of service and privacy policies shouldn’t be clear (though its getting harder and harder to write for the least common denominator).  But again, nothing is 100% secure – there will always be someone that will find away to hack a system if they really want to and it’s really your fault if you fail to read and understand a website or platforms terms of service and privacy policy before you use it or sign up for something.  Why should people scream and cry for the “head” of a platform or website when people freely give their data away?  That’s like blaming the car dealership for theft when you take your fancy new car to a ghetto ass neighborhood, known for high crime and car theft, leave it parked on a dark street, unlocked and with the keys in it.  “But they should have watned me it would get stolen!” Wait! What?Okay, maybe that’s a little too far of an exaggeration but seriously, the internet is a blessing and a curse.  If you don’t know of the potential dangers, and you don’t take the time to learn them, perhaps you shouldn’t be on it?  Remember, entertainment and convenience is the reward for our sacrifice of data privacy and security.

You know who has a heightened level of privacy, doesn’t have social media accounts hacked, data isn’t mined from online habits and doesn’t get spammed to death?  My dad.  Why? He doesn’t get on computers let alone get online and he doesn’t even own a smart phone.  True story.  The dude still has checks, writes hand written notes, and hunts for his meat and gardens for his vegetables. Can you say “off the grid”?  Want heightened data privacy?  Be like dad.

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold and sold.  This is especially true if the website is free for me to use.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction. 

 

 

Domesticating a Foreign Subpoena in Arizona

So you have initiated legal action in your local state court but an entity or person that you need information from is based out of or otherwise located in the state of Arizona.  What do you do?  Well, if you don’t want to deal with the process and rather seek help from from Beebe Law, PLLC, you start by filling out the Arizona State Subpoena Domestication Intake Form.  If you just want to learn a little more…keep reading.

Every state has their own unique set of laws and procedures when it comes to domesticating a foreign subpoena and Arizona is no exception.  The following are a few important points:

  1. Make sure you know who the entity’s statutory agent is and where they are located.  You should be able to find this by searching the Arizona Corporation Commission’s website.  This is important because you will want to have the domesticated subpoena issued out of a court in the county in which the discovery will be produced.  The court will charge a fee for issuance of the subpoena.
  2. Ensure that you are complying with Arizona’s Interstate Depositions and Discovery rules as set forth in Ariz.R.Civ.P., Rule 45.1.  Pay attention to special language requirements.
  3. The subpoena must be served in accordance with Ariz.R.Civ.P., Rule 45(d). Don’t forget to tender any applicable witness fee and mileage allowed by law.  See A.R.S. § 12-303.
  4. If you are commanding attendance at a deposition or hearing, the place of appearance must be consistent with with Ariz.R.Civ.P., Rule 45(B)(3).
  5. You will have to arrange to have the subpoena served, e.g. through a process server.

Many can absolutely accomplish the goal of foreign subpoena domestication in Arizona entirely on their own (as long as you pay close attention to the rules) however, if you are unsure of the process, or otherwise just don’t want the hassle of it, feel free to reach out to us.  We are here to help you navigate and/or take over the nuances and have created an entire Foreign State Subpoena Domestication Intake Form to get you started.

If you are in need of assistance with laws and procedure in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

10 Online Safety Hacks You Can Implement Today

Every day you read about major companies, or even law firms, getting hacked.  Talk about some frustrating stuff! It’s even worse when it actually happens to you.  Of course, with the increase of technological convenience comes greater cyber security risk.  One of my personal favorite cyber security gurus and “Shark Tank” star Robert Herjavec recently provided insight for an article that outlined 10 safety hacks that are easy to implement if you aren’t already doing them.  What are those 10 safety hacks?  Continue reading…

Some of these seem pretty intuitive.  Others perhaps not so much but are a good idea.

  1. Enable multi-factor authentication (MFA) for all of your accounts.
  2. Cover internal laptop cameras.
  3. Don’t do any shopping or banking on public Wi-Fi networks.
  4. Ensure that websites are SSL secure (https instead of http) before making financial transactions online.
  5. Delete old, unused software applications and apps from your devices.
  6. Update your anti-virus software as soon as updates become available.
  7. Refresh your passwords every 30 days for all accounts and use unique passwords for each account.
  8. Update computer/mobile software regularly.
  9. Don’t click on unknown links or open unknown attachments.
  10. Change the manufacturer’s default passwords on all of your software.

One of my favorites is the “cover internal laptop cameras.”  I personally used to get made fun of because I would place a sticky note over the top of my camera on my computer.  I suppose it didn’t help that it was bright green (or hot pink) depending on what color sticky note I had handy so it drew attention until I was given a better one (a plastic slider made specifically for this purpose) at a networking event from Cox Business. Now it doesn’t seem so silly after all.

Another one that I know is important, but probably more difficult to do, is to “refresh your passwords every 30 days for all accounts and use unique passwords for each account.”  Holy moly!  Think of how many accounts have passwords these days?  Literally every different system/app/website that you use requires a password! One LinkedIn user listed as a “Cyber Security Specialist” for a software company offered the solution of a program like LastPass.  Apparently, according to this particular individual anyway, LastPass saves all of your passwords in a securely encrypted container on their servers and have many other built in safety features in the event of stolen or hacked data.  This way all you have to know is one password and LastPass will do the rest.  While surely there are other similar solutions out there, if you are interested, you can read more about LastPass on their How It Works page. Sounds pretty cool, right!?! It might help you break out of that password hell.

A little common sense plus adding in these 10 security hacks can go a long way! Do you have any security hacks to share? Have a favorite password protector that you use? Let us know in the comments!

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

Schools and Sunscreen to License Plate Covers: 10 new Arizona laws that may impact you – effective this week.

Often times, when laws are passed, they are done without most people noticing.  That’s because small changes to state statutes aren’t all that “news worthy” and it seems that the only people that care are those that wrote them.  However, starting Wednesday, August 9th, 2017, there are 10 laws that Arizonans might actually find relevant, or at least interesting:

  1. Sunscreen in School: Remember the frustration with trying to get your kid to be able to use sunscreen at school, camp or daycare without a prescription?  Stress no more!  HB 2134 fixed that by allowing school aged kids to have and use sunscreen without a note or prescription!
  2. Schools and Inhalers: I can recall growing up with asthma and recess could be troublesome without an inhaler.  Fortunately, that probably won’t be an issue anymore. HB 2208 grants trained school personnel the authority to administer a rescue inhaler to a student (or adult) provided that such student or adult is showing signs of respiratory distress during school or a school sponsored event.  It also allows schools to apply for grants and accept donations to buy inhalers and spacers.
  3. Hot Cars are No Place for Pets and Kids: We’ve seen more than our share of news stories about kids and pets being left in hot cars and dying as a result.  Passers by have long been concerned about civil liability for breaking into locked and unattended vehicles in order to rescue the pets or kids. After all, no good deed goes unpunished, right? Well, worry no more! HB2494 remedied that by protecting persons who enters a locked, unattended, vehicle in connection with the rescue of a child or pet if that person believes that the kid or pet is in “imminent danger of physical injury or death.”  The caveat is that the person MUST call the police or animal control first and stay with that animal or child under they police or animal control arrive.
  4. Background Checks for Private Gun Sales: There has been a lot of confusion surrounding whether or not one had to do a background check on someone when there was a private sale or gift of a gun. Confusion be gone. SB 1122 has made it clear that the state, county and city governments cannot require background checks to be done on private gun sales, gift, donations or other transfer.
  5. Arizonans with Disabilities Act: Businesses know that in order to operate they often need to take into consideration patrons/customers that have disabilities. There has been recent talk about this even applying to a business’s website. Nevertheless, it appears that to help out businesses, SB 1406 amends the Arizonans with Disabilities Act to give a business up to 90 days in order to cure violations for structural access before a lawsuit can be filed against them, and websites have also been exempt from from the state accessibility requirements.  Of course, for the website business owners, this doesn’t mean that a case won’t be brought against you in a different state that doesn’t have the same rules (people are crazy litigious like that) but it’s good to know that you’re seemingly safe, for now, with the laws of this state.
  6. Crummy Moving Companies Beware: Nothing says “crummy moving company” like one that will get all of your belongings loaded up and to your (in-state) destination but refuses to unload your stuff if you have a disagreement over the payment – like added surprise charges that you weren’t anticipating. HB 2145 addresses that problem by making it illegal for a moving company to fail to unload your belongings over a disagreement over the bill.  Moving companies have to provide a written contract and disclose all fees.  No more surprises = no more disagreements (hopefully).
  7. End of Life Decisions are Difficult: At the end of one’s life – decisions that are being made take a toll on all of those involved – doctors and nurses included. SB 1439 protects doctors, nurses and entire medical facilities from discrimination when they refuse to participate in or otherwise provide any service or item that would result in the death of an individual.
  8.  License-Plate Covers: For all those who think they are being slick with the fancy license plate covers, electronic devices or film that “hides” your license plates from cameras, etc. – you might want to get rid of them.  SB 1073 makes it illegal to cover your license plate in a manner that obscures the license plate from any angle.
  9. Serving Age of Alcohol Decreased: HB 2047 reduces the age in which a person can serve alcohol.  Under the old law one had to be 19 years old before they could serve alcohol.  Under the new law a person only has to be the age of 18.
  10. Pharmacists and Emergency Prescriptions: It can be scary to run out of necessary medication and not be able to get a refill timely.  SB 1269 now allows pharmacists to issue a one-time emergency refill of a non-controlled medication used to treat an ongoing medical condition in particular circumstances including when the pharmacy has had prior record of the patient such patient has a history of being prescribed such medication.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

Copyright Infringement: The Basics of a DMCA Notice for Online Content

I’ve been receiving calls from people alleging that someone is infringing on a their copyright (almost always online) and asking for information relating to what goes inside a Digital Millennium Copyright Act (“DMCA”) Notice so that they can try to get the alleged infringing content removed. While there is a full legal analysis that should go into whether or not submitting a DMCA notice would be proper, if you know that you are in the right, the following are the basics that need to go into a DMCA Notice:

Any DMCA removal request directed to a website should comply with 17 U.S.C. § 512(c)(3) and include at least the following things:

  1. Your name, address, telephone number, and e-mail address;
  2. A description of the copyrighted work that you claim has been infringed;
  3. The exact URL or web address where the alleged infringing material is located;
  4. A statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
  5. Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
  6. A statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The decision to submit a DMCA Notice to a website should be made carefully.  DMCA Notices are NOT good for Reputation Management purposes and if you make any false statements in your demand (like you aren’t actually the copyright holder, etc.) the law does impose substantial liability for any damages and attorneys’ fees incurred as a result. 17 U.S.C. §512(f).

Do you have questions about the DMCA Notice process or other general Copyright related questions? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

Digital Millennium Copyright Act: It’s NOT for Reputation Management

Let me start out by saying that if your entire business model is based on submissions of Copyright infringement notices (“Digital Millennium Copyright Act Notices” or more commonly referred to as “DMCA Notices”), you should first have a clue about: 1) what goes in one; and 2) what circumstances will likely be found by the court as “infringement.”  If you can’t even get that right, you are doing a disservice to both your customer and are risking litigation against you.  #PetPeeve Yes, I have services in mind but they shall go unnamed.

I understand that in today’s modern world it is incredibly easy for someone to take a picture that posted of someone on the internet and then turn around and upload it elsewhere.  Indeed, depending on the circumstances, it may very well be an instance of Copyright infringement and a DMCA Notice may very well be warranted.  There is an entire legal analysis that often goes into determining Copyright infringement and those who are untrained should consult legal counsel who regularly handles Copyright infringement issues to help walk through the elements.

Notwithstanding the above, if you think that submitting a DMCA Notice to a site where such image is being used in connection with a review, in an effort to get that review or image to be removed from that site, you are likely going to fall flat and may have just wasted time and money.  Why? Because such use is more likely than not going to be considered “fair use” by a court.

The doctrine of fair use is codified at Section 107 of the Copyright Act, 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … for purposes such as criticism [and] commentary … is not an infringement of copyright.”); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001) (“copyright does not immunize a work from comment and criticism.”).  Similarly, courts around the country have upheld the fair use doctrine for the type of claim that most people write to review websites about, i.e., an image connected with a critical review. See Dhillon v. Does 1-10, Not Reported in F.Supp.2d, 2014 WL 722592 (N.D.Cal. 2014) (finding of fair use when Plaintiff’s professional headshot was used for article criticism and commentary); Galvin v. Illinois Republican Party, Slip Copy, 2015 WL 5304625 (N.D.Ill. 2015) (finding of fair use when Plaintiff’s photograph was used in a flyer for the purpose of criticism and commentary); Katz v. Chevaldina, Slip Copy, 2014 WL 2815496, 111 U.S.P.Q.2d 1281, (S.D.Fla. 2014) (finding unauthorized use of unflattering photo of businessman in a blog that is critical of his business practices to be fair use as a matter of law); Katz v. Google, Inc., —F.3d—, 2015 WL 5449883 (11th Cir. 2015) (finding of fair use when blogger used a photograph of a businessman, which he owned the copyright to, in a posting that was to deter others from conducting business with businessman); and Weinberg v. Dirty World, LLC, et al., 2:16-CV-09179 (C.D.Cal. Jul. 27, 2017) (finding fair use when photograph, captured from a video clip which Plaintiff had rights to, was uploaded to an online review website to “ridicule, mock, and critique” the figures in the image).

Moral of the story: if you are considering using a DMCA Notice (or hiring some Reputation Management company who uses this “method”) in effort to try and get postings or images removed from the internet…you should seriously reconsider your strategy. Chances are such companies (or law firms – I’ve seen ridiculous letters from attorneys too) are just taking your money and you may not get the results boasted about. Remember, there has to be a good faith believe that the use is infringing and when there is an abundance of case law that says “fair use”…one questions the “good faith” requirement.

Are you a business that operates a website where you regularly receive DMCA Notices? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

 

Trademarks and Fair Use in Commentary

I have clients who operate websites that allow third-party content.  While NOT my clients, think about sites like Yelp, Twitter, Glassdoor, or even Facebook as examples. When you operate websites that allow other people to go online and write whatever they want, chances are you are going to see an allegation of Trademark Infringement via a cease and desist letter.  I typically see them in the context of someone alleging trademark infringement because someone is using the trademark to talk about them online – most often critically.  These cease and desist letters come in from attorneys (which I always raise an eyebrow at), reputation management companies (again which I raise an eyebrow at) and everyday people which I can better understand because many simply don’t have an understanding of this area of law.

Due to the overwhelming issues that I see with these cease and desist letters, I thought it might be good to cover some basics:

What is a Trademark?

A trademark is a word, name, symbol, or device, or any combination thereof, that is used to distinguish the goods of one person from goods that are manufactured or sold by others.  Think of it as telling people the source of the goods.  Think of “Pepsi” or “The Home Depot” for example.  Those are trademarked words that clearly distinguishes them from other sources of goods like “Coca-Cola” or “Lowe’s.”

Protecting your Trademark.

It is important to police your trademark so as to keep it from falling by the way of generocide (death by becoming too generic due to its popularity and/or significance) or being counterfeited (knock-offs). A common example of generocide includes trademarks like “escalator” for the moving staircases.  If you are curious you can read more about generic trademarks.  A common example of trademark counterfeiting includes the cheap knock-off/fake Louis Vuitton handbags.  You know, the ones that look like it’s the real deal at first glance but any savvy fashionista knows better upon closer inspection.

Trying to use Trademark as a Reputation Management Method.

Yes, there are times when you should be policing your trademark as discussed above. However, just as I cannot talk about The Home Depot without saying “The Home Depot,” the same goes for anyone else wanting to talk (or write), good or bad, about a particular brand. Such use falls under what is called “nominative fair use” which applies when a person has used one’s trademark to describe or refer to the trademark holder’s product. As with most aspects of law there are caveats and tests, however, generally speaking, just because you have a registered trademark doesn’t mean that you can submit cease and desist letters and allege trademark infringement as a way to get websites to take down content critical of your business.  Chances are, in that context, it is NOT trademark infringement.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

Five Benefits to Keeping Your Business Lawyer in the Loop

Let’s face it, the word “lawyer” for many is akin to a four letter expletive that people are offended by. Typically because it reminds people of getting sued and/or having to shell out, often unexpectedly, loads of cash that they rather have spent elsewhere…like on a vacation.  Similarly, like in all professions, not all lawyers are created equal, and not all lawyers really have their client’s financial interests at heart – after all, being a lawyer and having a law firm is a business. I personally pride myself on NOT taking advantage of my clients…giving them direction on how they can do things themselves and helping only where they REALLY need/want it…but after 18+ years in the legal field, I know that not all lawyers share my same client-friendly mindset. It is no wonder that people cringe at the thought of having to use a lawyer.

Lawyers don’t have to be a thorn in your side through.  In fact, a good lawyer can be a business’s greatest adviser and advocate – keeping in mind that a job of a lawyer is to tell you what you NEED to hear which can sometimes be very different than what you WANT to hear. All businesses should have a lawyer or two that they keep in regular contact with and it should be part of your regular business operating budget.

Before you go thinking I’m crazy, here are a few reasons that keeping your lawyer updated on the goings on of your business is advantageous:

  1. Lead Generation: Your lawyer can often be your biggest cheerleader (and lead generator) for future customers. Chances are your lawyer is tapped into many different networks.  You never know when someone they know will need your business’s products or services and a solid referral from your lawyer could be future revenue in your pocket.
  2. Idea Generator: An attorney that understands you, your business, and your goals can be an invaluable asset when it comes to creative thinking.  Brainstorming on new ideas with your lawyer may prove to be helpful in that they may be able to think of concepts outside the box for your business that you may not have already thought about.  What if that lawyer helps you generate the next million dollar idea?
  3. Cost Cutting: One thing that many lawyers are good at is organizing and streamlining processes – it’s part of the way we think.  What if your lawyer was able to give you ideas on how to streamline an existing process that will considerably help cut costs moving forward?  If a few hundred dollars for your lawyer’s time on the telephone could save you thousands of dollars in the next year, wouldn’t you do it?  Sure you would.  You’d be a fool not to.
  4.  Risk Mitigation: When you brainstorm with your lawyer on a new business concept, they can often help you plan your road-map to reach your goals and help you navigate around pitfalls that you might not even think about.  For example, when clients come to me talking about setting up a new business I always ask them the business name and ask if they have considered any reputation issues with that new business name.  The same goes for contracting issues, employee issues, etc. To that end as well, there is a LOT of bad information being circulated around on the internet. Indeed it is wise to conduct your own research but don’t you think it prudent to have your research double-checked by someone who knows where to actually find the correct information when it comes to the law? As Dr. Emily So once said, “better information means better ideas, means better protection.”
  5. Cost Effective: It is a lot cheaper to keep your lawyer up to speed on your business as it grows, even if through a short monthly 15 minute call, than it is to try and ramp your attorney up (trying to teach them everything about your business, including policy changes and the like in a short amount of time) when you suddenly need advice in order to be reactive to a situation – like when you are named as a defendant in a lawsuit.  When you are named as a defendant in a lawsuit, you typically only have 20 days (varies by court and jurisdiction) from the date that you are served with a complaint in order to determine what your defenses are and what sort of a response you will need to file.  That process becomes a whole lot easier if your attorney already knows about you, your business, it’s policies and procedures, etc.  It is also easier to to budget in a few hundred dollars a month to keep your attorney up to date then to get smacked with a request for a $20,000.00 retainer, most of that potentially being eaten up just “learning” about your business, and then having subsequent large litigation bills.

As you can see, there are many reasons to regularly communicate with your attorney and hopefully you would find it more advantageous and beneficial than paying your monthly insurance bill. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure!”

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.