Law Firm News and Strategies

Quick Guide to Setting Up @LinkedIn For Your #Business #smallbiz #tech #branding

LinkedIn’s Company Pages feature is a tool that businesses can use to promote its professionals, products and services, attract qualified prospects for job openings or to engage with clients, potential clients and referral sources.

When you create a Company Page it is different from a personal account. Log in as your personal account then add your company profile and details. You can tag employees of the firm who have Profiles on LinkedIn. When they accept they will automatically be attached to the firm’s Company Page, giving those Profiles additional exposure. Having a Page for your firm on LinkedIn provides a vehicle to provide company-wide information, not specific to any individual, as a supplement to or an extension of your firm’s or organization’s website.

Elements of the Company Page
Company Pages are comprised of four sections: Home, Products and Services, Career, and Insights.

The Home page includes a cover photo and company description, recent Updates posted by the Page, the people on LinkedIn who are connected to your firm or organization, and any featured Groups. Visitors may choose to follow your Company page from here; they can also “like,” comment on, or share your Company’s Updates.

The Careers section is only available with a paid subscription. Here, your company can list jobs, include employee testimonials, and add multimedia elements to attract potential candidates to work at your firm. Visitors can apply for jobs at your organization directly through LinkedIn.

Visitors to your Company page can click on the Insights tab to see former employees they may know, as well as a list of other Company pages viewed by those who also viewed your firm’s Page.

The Products and Services section of your Company page provides a place to describe your areas of expertise, products and services in more detail and give individual links directly to specific pages on your website for more information. If you have created YouTube videos about your company or what you do for clients, you can link to those videos directly from Products and Services. You can also add logos and images to each product or service to make your descriptions more interesting.

Individuals can write Recommendations for your services which can be displayed on your Page as well. Depending on your industry there may be some jurisdiction ethical rules which prohibit recommendations (attorneys, dentists, doctors, etc). Sharing is also enabled for Products and Services, allowing others to share information about your services with their network.

For each service, you can identify an employee contact, which will allow you to let the individual group leader or department head within your organization to be contacted directly. You can also change the title of this section to simply Services, if you prefer.

A key feature not to be overlooked is that you can even add a disclaimer in a designated section if you determine that you need one.


Your firm or organization can post Updates on the Company Page. Updates can be a great way to point people to items on your website or in your company’s newsletter that you might send out via MailChimp or Constant Contact. Company Updates can be up to 600 characters long (including spaces). Shared link titles and descriptions can be up to 250 characters each, which is plenty of room to provide summary information, links, and details about upcoming events.

LinkedIn also now allows you to post Targeted Updates. When you create an Update from your Company page, you will see a Share With box pop up. That box provides two options: either All followers or Targeted audience. If you click on Targeted audience, LinkedIn will provide you with several criteria to choose from under Company size, Industry, Function, Seniority, and Geography. After selecting your criteria, you may choose to send your Update to employees and non-employees or to non-employees only. Your firm must have at least one hundred followers within the selected target group to post a Targeted Update.

LinkedIn members can comment on, “like,” or share a Company Update, the same way they would with an individual Update from a Connection. But now LinkedIn Company page administrators can also comment on or “like” Updates as the Company page, rather than just as individuals.

Tips for Company Pages
The keys to making Company pages work for you are to get creative about what you post and to actively engage on a consistent basis. You can benefit from increased interaction with other lawyers, strategic alliances, referral sources, and prospective clients.

As more and more businesses begin using Company pages on LinkedIn, users will begin following these pages, just as they do on Facebook, Twitter, Google+ or other platforms. Given that LinkedIn is known as the professional network, however, followers of the Updates on your Company page are likely to be those interested in your practice or your professional associations. LinkedIn provides a tool to create a Follow button that you can add to your website.

Post Updates regularly and promote your business Company Page by adding a Follow button to the you organization’s website or blog. Feature the Company Page in e-mails, firm newsletters, and other marketing materials to encourage all of your audience to make it part of their LinkedIn experience.

About the Author:
Allison C. Shields is President of Legal Ease Consulting, Inc. She provides practice management and business development coaching and consulting services to lawyers and law firms in the areas of practice management, productivity, client service, business development, marketing and social media. Allison is the co-author of Facebook in One Hour for Lawyers and LinkedIn in One Hour for Lawyers, both published by the Law Practice Management Section of the American Bar Association in 2012.

Whether you are an established law firm, hotel, medical practice or starting a new business, allow LinkedIn to work for you.

Here are 5 tips to make your Company page great on LinkedIn.


How do Music Business Attorney Fees Work?

By Donald Passman

Most lawyers in the music business don’t charge just on an hourly basis. For the ones that do, the rates are usually from $125 per hour for new lawyers, up to $450 or more for biggies. Some of us charge a percentage (usually 5-10%), while others do something known as “value billing,” often with an hourly rate or retainer against it.

A retainer is a set monthly fee that is either credited against the ultimate fee, or it’s a flat fee covering all services. “Value Billing” means that, when the deal is finished, the lawyer asks for a fee based on the size of the deal and his or her contribution to it. If the lawyer had very little to do with shaping the deal, but rather just did the contract, I think the fee should be close to an hourly rate (though I’ll get heat for telling you this because it’s usually more).

On the other hand, if the lawyer came up with a clever concept or strategy that made you substantial sums of money, or the lawyer shaped or created the deal from scratch, he or she will ask for a much larger fee or larger percentage. If your lawyer “value bills,” you should get some idea up front what it’s going to be, so that there aren’t any rude surprises. At minimum, get a ballpark range.


Here are some questions to ask your potential entertainment lawyer:

1. Do you have expertise in the music business?

2. What do you charge? In addition to fees, do you charge for costs? (Everyone charges for long-distance phone calls, messengers, etc., but some charge for every page of photocopying, faxing, etc, while others are much looser.)

3. Ask if the lawyer has a written fee arrangement. In California for example, lawyers are required to have their fee arrangement in writing in order to enforce them (a major incentive to get them in writing). Ask for a copy of the fee arrangement so you can review it. Also, the lawyer can’t insist on your signing it in his or her office–the California Bar considers that too intimidating. So take it home.

It’s unethical in some jurisdictions like California for lawyers to have an agreement with you that can’t be terminated at any time. If it’s a percentage arrangement, be careful about what happens to the percentage after the term.

You should ask if they object to your having the fee arrangement reviewed by an independent advisor, preferably a lawyer, but at least a personal manager or business manager. No legitimate lawyer will object to this, and in fact, they should encourage it. If it’s at all possible, you should have your fee arrangement with your lawyer reviewed independently–especially if it involves a percentage. And, if it isn’t possible to do this, make sure the lawyer explains it to you in detail and that you understand it.

4. Ask for references of artists at your level, and check them out. Does this lawyer return phone calls and emails? Do they get deals done in a reasonable period of time? “Reasonable” in the music business is not going to be anywhere near the speed you would like. It’s not uncommon for a record deal to take four or five months to negotiate, especially if you’re a new artist and can’t force the record company to turn out a draft quickly. Four to five months is a realistic time frame, but if it goes beyond that, someone isn’t doing their job. I’ve always been amused by a story I heard from a new client when I was a young lawyer. He had been represented by another lawyer, and he said, “I know my record deal is good. It took over a year to negotiate.”

5. Do you have or foresee any conflicts of interest?

Conflicts of Interest

A lawyer has a conflict of interest when his or her clients get into a situation where their interests are adverse. This is easy to see, for example, when two clients of the same lawyer want to sue each other. However, it’s also a conflict of interest when two clients of the same lawyer make a deal with each other.

Lawyers are ethically required to disclose their conflicts of interest to you. Your choice is either to hire another lawyer, or you may “waive” (meaning you choose to ignore) the conflict, and continue to use the same lawyer.

Because the entertainment industry is a relatively small business, those of us who practice in this field are continually bumping into ourselves when our clients make deals with each other. Most of the time these situations are harmless and can be handled simply, in one of several ways:

1. Each of the clients gets another lawyer (rare unless it’s a pretty serious conflict).

2. One of the clients gets another lawyer (much more common).

3. The clients work out the agreement amongst themselves (or else the manager, agent, or business manager negotiates for them), and the lawyer merely draws up the paperwork, not representing anyone’s interest.

When you are interviewing attorneys, you should ask if they have or foresee any conflicts of interest. Most ethical lawyers will bring it up before you do, but you should ask anyway.

About the author
Donald Passman is the author of “All You Need To Know About The Music Business” available on and iTunes. Often we excerpt from his book. Passman is a Los Angeles-based music attorney with the firm of Gang, Tyre, Ramer & Brown. Specializing in music business law for over 20 years, his clients include major publishers, record companies, film companies, managers, producers, songwriters, and artists such as REM, Janet Jackson, Quincy Jones, Tina Turner and Green Day.

Success amidst Hurricane Sandy: Black Entertainment and Sports Lawyers Visit the Bahamas

Black Entertainment and Sports Lawyers Association (BESLA) holds their conference in the Bahamas

Black Entertainment and Sports Lawyers Association (BESLA) holds their conference in the Bahamas

A marked success in the midst of Hurricane Sandy, the Black Entertainment and Sports Lawyers Association (BESLA) brought nearly 300 attendees to the Bahamas for its 32nd annual conference at the Atlantis Resort October 24-28, 2012.

Deputy Prime Minister of the Commonwealth of the Bahamas Phillip “Brave” Davis welcomed the BESLA group at the opening reception complete with a Junkanoo rush.

Local organiser, Andy Ingraham, said “the event provided an opportunity for the Bahamian private sector to establish connections with the 300 music, television and sports” industry tastemakers.

Although Hurricane Sandy kept attendees indoor for the duration of the conference, local and international attendees were educated, enlightened and informed with each panel. A host of attorneys, agents and industry professionals shared their knowledge in sports, new media, entertainment, ethics, brand building and television.

A handful of Bahamian students, attorneys and business owners took advantage of the incredible networking opportunity including First Lady of the Bahamas Mrs. Bernadette Christie, who is also an attorney. According to local attendee PJ Douglas Sands “as an event planner and branding strategist BESLA was a great experience. Networking and being inspired by colleagues in the Entertainment field is a motivation not only for what I am doing with The DS3 Group but with my attorneys at Douglas Sands and Associates. This is my first of many BESLA events.”

Judy Smith recently appeared on Oprah's Next Chapter with Kerry Washington and Shonda Rhimes to discuss ABC's hit show

Judy Smith recently appeared on Oprah’s Next Chapter with Kerry Washington and Shonda Rhimes to discuss ABC’s hit show “Scandal” based on her illustrious career in crisis management.

BESLA presented its Lifetime Achievement award to Judy Smith, the crisis management expert whose A-list clientele and trailblazing counsel inspired the new ABC hit series, ‘Scandal’.

Known in her business as a “fixer”, for the past 20 years Ms Smith has been the go-to person called upon by politicians, celebrities and Fortune 500 companies caught in media firestorms.

The founder of Smith and Company, Ms Smith is an attorney who was the first black female special assistant to the President, and deputy White House press secretary for President George H, W. Bush. She will also participate in a ‘Representing clients in a time of Crisis’ seminar.

Godmother of BESLA Entertainment Attorney Louise West, First Lady of the Bahamas & Attorney Mrs. Bernadette Christie, Andy Ingraham & PJ Douglas Sands

Entertainment Attorney Louise West, First Lady of the Bahamas & Attorney Mrs. Bernadette Christie, Andy Ingraham & PJ Douglas Sands

Representatives from NBC Entertainment Television, BET, Universal Music Group, Turner Broadcasting, Island Def Jam, Warner/Chappell Music, Oprah Winfrey Network, Sony, Max Siegel, chief executive of US Track & Field, and Eva Wright, vice-president and associate general counsel of the Miami Heat, also led discussions.

This year’s theme was Symmetry & Global Branding: Balancing Strategic Partnerships For Breakthrough Success.

Legendary music executive and entrepreneur, Clarence Avant has also been honoured.This year, his daughter, retired US Ambassador to the Bahamas, Nicole Avant, received BESLA’s Humanitarian Award. She is an accomplished business woman, political activist and philanthropist and is married to Netflix chief content officer Ted Sarandos.


The Black Entertainment and Sports Lawyers Association (BESLA) was founded in 1980 as  a network for the professional development and advancement for attorneys of colour in entertainment and sports. Their mission:


  • Black Entertainment and Sports Lawyers Association (BESLA)to open pathways to economic and decision-making parity in the sports and entertainment industries for legal and creative talent representatives.
  • Provide an effective network of high-impact professional and business relationships and information-sharing.
  • Facilitate legal and business affairs employment and business opportunities for people of color.

Here are photos from the 2012 BESLA conference held at Atlantis Resort, Paradise Island, The Bahamas courtesy of New Media Network.

Small Businesses Use iPads, Tablets, Technology For Efficiency to Compete

Small businesses are using technology to help them operate more efficiently and cost-effectively in an increasingly competitive environment. 
Real estate brokerage owner: Krisstina Wise likes the app DocuSign, which enables digital signatures: “It’s rare that we need an ink signature anymore.”
Real estate brokerage owner: Krisstina Wise likes the app DocuSign, which enables digital signatures: "It's rare that we need an ink signature anymore."

Photos by Maxine Park,, USA TODAY

Small businesses are using technology to help them operate more efficiently and cost-effectively in an increasingly competitive environment. Each Monday, USA TODAY looks at new ways companies are gaining an innovative edge in a tough economy.

  • Theater design consultant Joshua Allen doesn’t routinely travel the country with a laptop for work anymore. The Apple iPad has become Allen’s go-to traveling companion. “At first I was hesitant,” he says. But then, “My bag got so much lighter … and my chiropractor bill went down.”

What made lightening the load possible for Allen and his colleagues at Raleigh, N.C.-based Theatre Consultants Collaborative are the numerous apps designed for the iPad to help folks operating smaller enterprises conduct business. Allen relies on at least a half-dozen apps that help him take notes, consult architectural drawings and even see behind walls.

Indeed, for all the attention that the iPad gets as a play device that lets you browse the Web, read books, watch movies and knock down a few pigs with Angry Birds, more and more people at the wheel of small companies are turning to Apple’s popular tablet for productive purposes, while potentially saving the business time and money. Yankee Group analyst Carl Howe says 72% of businesses that have tablets are using the iPad. And the iPad boasts by far the largest number of productivity apps for tablets, leaving Android, Microsoft and Research In Motion’s BlackBerry to play catch-up.

Apple has been pushing the iPad’s business virtues and along the way trying to woo the small-business crowd with some of its own apps. Most notably, there’s the optional iWork suite consisting of iPad versions of the Numbers spreadsheet, Pages word processor and Keynote presentation program, each $9.99.

But small businesses are increasingly summoning apps from outside developers that turn the iPad into an all-purpose hub for telephony, communications and e-commerce, and a gateway to the PC at the office — or to all the files stored in the cloud, through such services as Box, Dropbox and SugarSync. The scope of business apps for the iPad is as broad as the companies and entrepreneurs that take advantage of them. A company might bill a customer through the iPad using an app such as Invoice2go ($14.99), scan business cards and receipts through Pixoft’s TurboScan ($1.99) and keep tabs on customers through FileMaker’s recently redesigned Bento 4 database ($9.99).

Most people don’t think of the iPad as a phone. But several apps can let it function as one. Donnie Clapp, communications manager at MercuryCSC, an outdoors-oriented communications and public relations firm in Bozeman, Mont., says the company got rid of its traditional — and pricey — land-line PBX phone system and is now using the Line2 app from Toktumi on iPads, the iPhone and on desktop PCs. It lets iPad owners place calls over Wi-Fi or cellular networks. There are free and pay-as-you-go plans, and businesses can hold conference calls for up to 20 people. “A lot of us carry iPads around to meetings, and it’s nice to have our phones with us,” Clapp says.

Widespread appeal

Some apps are meant to appeal to both businesses and consumers. As it is on other devices, the Skype app for the iPad is as much an inexpensive way for folks to keep in touch with relatives and friends who may be living or traveling overseas, as it is for businesses who want to stay in touch with commercial contacts in foreign countries, all in full-screen video.

Jennifer Plotnek, a lead behavior coach at Retrofit Weight Loss in Chicago, says, “I use my iPad all the time to Skype, as do my clients. I have had clients use their iPad to meet with me in airports, cabs, cars and offices.”

Real estate brokerage firm Good Life Team uses a variety of real estate apps for the iPad to help run their business. But some apps spell business all the way. The free Roambi Analytics Visualizer from MeLLmo, for example, lets companies produce trend and sales performance charts in a handsome visual dashboard.

Companies such as Square, Intuit and PayPal produce apps and mobile credit card readers that plug into the audio jack on the iPad and let merchants swipe customer credit cards. Square charges 2.75% per swipe for American Express, Discover, MasterCard and Visa cards, or $275 a month under a new flat pricing plan that eliminates per-swipe fees for small businesses that process up to $250,000 a year.

No keyboard a drawback

Of course, it’s still pretty rare for businesses to ditch the longstanding tools of the trade altogether in favor of a slate, even one as versatile as the iPad. So the iPad more often than not complements desktop PCs, laptops and smartphones rather than totally replacing those devices. Indeed, while most of the business people USA TODAY talked to showered high praise on the iPad, the lack of a physical keyboard is still an impediment in some instances.

“The biggest change is the app stores on post-PC devices,” says Sarah Rotman Epps, an analyst at Forrester. “Small-business workers can buy apps directly from the developers through the app stores, so they have access to a wider variety of tools (at lower prices) than they had in the PC era, all optimized for mobile devices.”

A slew of rival tablet makers are hoping to loosen Apple’s dominant grip on the market. The Windows 8-based RT Surface tablet that Microsoft unveiled in June, and is expected to start selling in the fall, is targeted at the mobile professional. Samsung’s new Galaxy Note 10.1 tablet comes with a so-called S Pen that business people can use to draw or take notes. And Lenovo sells the business-oriented ThinkPad Tablet, an Android device with a digitizer pen.

A Forrester survey of 10,000 information workers in 17 countries, conducted at the end of 2011, found that 24% of workers at small businesses, defined as 20 to 99 employees, use a touch-screen tablet for work. Forrester found that numerous productivity apps are equally as popular if not more so on tablets as on PCs, including note-taking apps, social networks (Facebook, LinkedIn), team document-sharing sites (SharePoint, eRoom, Lotus Quickr) and Web meeting or Web conferencing (Cisco WebEx Meetings, GoToMeeting).

According to a recent Yankee Group survey, e-mail, database, corporate instant messaging and Web conferencing are the most common types of apps used on tablets by businesses of 50 people or fewer, though the overall percentage use of any given app category is modest. For example, just 14% of the businesses use tablet apps for e-mail and 8% use them for databases. Howe sees those percentages growing quickly. “Tablets are fundamentally reinventing business software and, in that process, business itself. We sometimes forget we’re only two years into the tablet revolution — the equivalent of 1980 in the PC era — and yet the tablet is already the center of new software development.”

Other ways that apps are helping businesses to operate more efficiently.

Task management. Baltimore wedding photographer Cayne Zimmerman and his wife, Christine, employ Bento 4 for the iPad to help manage his client database and stay on top of contracts, invoices and notes. Zimmerman says he investigated Web-based alternatives but found they weren’t as conducive. Zimmerman is also high on OmniFocus for iPad, which he describes as “bread-and-butter task-manager software that’s intertwined into my daily activities.” Among other features, the $19.99 app from The Omni Group lets him organize tasks into projects and folders and conduct location-aware task lists that can remind him of something he needs to do when he’s at a specific location.

Time savings. In Austin, real estate brokerage owner Krisstina Wise is partial to DocuSign, a popular app that lets customers sign contracts digitally. It has become a common practice in her field. Wise still encounters situations — certain short-sale transactions or foreclosures come to mind — where banks want people to sign on actual paper with an actual pen.

But “it’s rare that we need an ink signature anymore,” she says. “DocuSign has become a verb in our (15-person sales) office. ‘OK, we’re DocuSigning it.’ We pretty much run our business on the iPad.” Given the nature of her business, Wise also uses such real estate search apps as the app from Move Inc. and Zillow Real Estate, both free.

Allen’s firm is hired by architects seeking help designing performing arts facilities. Among his favorite apps is Noteshelf, a $5.99 handwriting note-taker from Ramki, that he says is terrific for “sketching things up. I set up a notebook for each project.”

Allen also doesn’t think he could live without GoodReader and Evernote. The former lets Allen read and mark up the many PDF documents that he comes across on the job — the app costs $4.99 and is from Good.iWare. Allen relies on the free Evernote app in part to capture voice notes at meetings that he can then sync back to his computer. “We use Evernote religiously,” he says.

AutoCAD WS is also in Allen’s rotation, as a free app to share AutoCAD computer-aided design drawings.

Still another app he puts to work from time-to-time is Duplicam for iPad from DanCreek Design. Used in conjunction with the iPhone, Duplicam lets Allen wirelessly view and control the camera on the iPhone from the tablet. That way if he’s involved in a construction project and sees a hole in a wall, he can stick his hand inside the cavity with the phone and turn on a flashlight. He can then see on the iPad what the iPhone is seeing inside, capturing video or photos along the way. It’s helpful to check out wiring behind walls, he says, that would not otherwise be easily visible.

It’s feats like those that make it evident to Allen — and numerous other people working at small and modest-size companies — that tablets mean business.

By Edward C. Baig, USA TODAY

DS3 Legal Watch: 10 Big Copyright Myths

By Brad Templeton

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DS3 Legal Watch

Note that this is an essay about copyright myths. It assumes you know at least what copyright is — basically the legal exclusive right of the author of a creative work to control the copying of that work. If you didn’t know that, check out my own brief introduction to copyright for more information. Feel free to link to this document, no need to ask me. Really, NO need to ask.

1) “If it doesn’t have a copyright notice, it’s not copyrighted.”

This was true in the past, but today almost all major nations follow the Berne copyright convention. For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people’s works is that they are copyrighted and may not be copied unless you know otherwise. There are some old works that lost protection without notice, but frankly you should not risk it unless you know for sure.

It is true that a notice strengthens the protection, by warning people, and by allowing one to get more and different damages, but it is not necessary. If it looks copyrighted, you should assume it is. This applies to pictures, too. You may not scan pictures from magazines and post them to the net, and if you come upon something unknown, you shouldn’t post that either.

The correct form for a notice is:

	"Copyright [dates] by [author/owner]"

You can use C in a circle © instead of “Copyright” but “(C)” has never been given legal force. The phrase “All Rights Reserved” used to be required in some nations but is now not legally needed most places. In some countries it may help preserve some of the “moral rights.”

2) “If I don’t charge for it, it’s not a violation.”

False. Whether you charge can affect the damages awarded in court, but that’s main difference under the law. It’s still a violation if you give it away — and there can still be serious damages if you hurt the commercial value of the property. There is a USA exception for personal copying of music, which is not a violation, though courts seem to have said that doesn’t include widescale anonymous personal copying as Napster. If the work has no commercial value, the violation is mostly technical and is unlikely to result in legal action. Fair use determinations (see below) do sometimes depend on the involvement of money.

3) “If it’s posted to Usenet it’s in the public domain.

False. Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain(*). Explicitly, as in you have a note from the author/owner saying, “I grant this to the public domain.” Those exact words or words very much like them.

Some argue that posting to Usenet implicitly grants permission to everybody to copy the posting within fairly wide bounds, and others feel that Usenet is an automatic store and forward network where all the thousands of copies made are done at the command (rather than the consent) of the poster. This is a matter of some debate, but even if the former is true (and in this writer’s opinion we should all pray it isn’t true) it simply would suggest posters are implicitly granting permissions “for the sort of copying one might expect when one posts to Usenet” and in no case is this a placement of material into the public domain. It is important to remember that when it comes to the law, computers never make copies, only human beings make copies. Computers are given commands, not permission. Only people can be given permission. Furthermore it is very difficult for an implicit licence to supersede an explicitly stated licence that the copier was aware of.

Note that all this assumes the poster had the right to post the item in the first place. If the poster didn’t, then all the copies are pirated, and no implied licence or theoretical reduction of the copyright can take place

(*) Copyrights can expire after a long time, putting something into the public domain, and there are some fine points on this issue regarding older copyright law versions. However, none of this applies to material from the modern era, such as net postings.

Note that granting something to the public domain is a complete abandonment of all rights. You can’t make something “PD for non-commercial use.” If your work is PD, other people can even modify one byte and put their name on it. You might want to look into Creative Commons style licences if you want to grant wide rights.

4) “My posting was just fair use!”

See EFF notes on fair use and links from it for a detailed answer, but bear the following in mind:

The “fair use” exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. That’s vital so that copyright law doesn’t block your freedom to express your own works — only the ability to appropriate other people’s. Intent, and damage to the commercial value of the work are important considerations. Are you reproducing an article from the New York Times because you needed to in order to criticise the quality of the New York Times, or because you couldn’t find time to write your own story, or didn’t want your readers to have to register at the New York Times web site? The first is probably fair use, the others probably aren’t.

Fair use is generally a short excerpt and almost always attributed. (One should not use much more of the work than is needed to make the commentary.) It should not harm the commercial value of the work — in the sense of people no longer needing to buy it (which is another reason why reproduction of the entire work is a problem.) Famously, copying just 300 words from Gerald Ford’s 200,000 word memoir for a magazine article was ruled as not fair use, in spite of it being very newsworthy, because it was the most important 300 words — why he pardoned Nixon.

Note that most inclusion of text in followups and replies is for commentary, and it doesn’t damage the commercial value of the original posting (if it has any) and as such it is almost surely fair use. Fair use isn’t an exact doctrine, though. The court decides if the right to comment overrides the copyright on an individual basis in each case. There have been cases that go beyond the bounds of what I say above, but in general they don’t apply to the typical net misclaim of fair use

The “fair use” concept varies from country to country, and has different names (such as “fair dealing” in Canada) and other limitations outside the USA.

Facts and ideas can’t be copyrighted, but their expression and structure can. You can always write the facts in your own words. See the DMCA alert for recent changes in the law.

5)  “If you don’t defend your copyright you lose it.” — “Somebody has that name copyrighted!”

False. Copyright is effectively never lost these days, unless explicitly given away. You also can’t “copyright a name” or anything short like that, such as almost all titles. You may be thinking of trade marks, which apply to names, and can be weakened or lost if not defended.

You generally trademark terms by using them to refer to your brand of a generic type of product or service. Like a “Delta” airline. Delta Airlines “owns” that word applied to air travel, even though it is also an ordinary word. Delta Hotels owns it when applied to hotels. (This case is fairly unusual as both are travel companies. Usually the industries are more distinct.) Neither owns the word on its own, only in context, and owning a mark doesn’t mean complete control — see a more detailed treatise on this law for details.

You can’t use somebody else’s trademark in a way that would steal the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark’s good name. For example, if I were giving advice on music videos, I would be very wary of trying to label my works with a name like “mtv.” 🙂 You can use marks to critcise or parody the holder, as long as it’s clear you aren’t the holder.


****To see myths #6-10 read the rest on Brad’s blog. We wouldn’t want to violate his copyright notice.

For more information on copyrights, reach out toThe DS3 Group for legal advice or keep an eye out for “DS3 Legal Watch” articles on

Blogger Alert: Don't Pay $4,000 For a $10 Photo

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DS3 Legal Watch

BLOGGER ALERT: Why would copywriters at Webcopyplus pay $4,000 for a digital photo that retails for about $10? Well, frankly, we screwed up. It’s an expensive lesson on copyright laws that we wish to share with other marketers, so you don’t make the same mistake.

Our web copywriters were under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use. Naive? Yes. A notion limited to our copywriting firm? Definitely not. It likely has to do with the fact that works no longer need a copyright notice to have copyright protection (you can read about the Berne Convention Implementation Act, which the US adopted in 1988).

Designers, writers, developers, marketers, business owners, and ironically even photographers, use photos from the Web without permission. Sites like Google make it so convenient. Enter your keywords, do an image search, and you’ve got an endless photo library ripe for the picking. Woman laughing delivers 5.2 million photos. Business man offers 423 million photos. And the keyword kids brings up a whopping 778 million images. You can find pretty well anything, too, from ABBA to zombies.

The Copyright Crime

While we maintained an active stock photo account for our blog with access to an array of suitable photos, one of our copywriters grabbed a photo from the Web. The image: a colour 400 x 300 pixel beach shot with some greenery in the foreground. A nice shot, but nothing spectacular.

We posted it on a client’s tourism blog to add zest to a promotional article — done. Sip some caffeine, get a little Twitter action, and then dive into the next copywriting project. Photo forgotten. That was in May, 2010.

The Lawyer’s Letter

Fast forward a few months, we got a call from the client a couple of days before Christmas, and he wasn’t feeling overly festive. He received a formal letter from a lawyer with the following introduction: “Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.”

Apparently copyright infringement involving images that are registered with the U.S. Copyright Office allows for statutory damages of up to $30,000, or $150,000 if it can be demonstrated it was a willful act.

The Lawyer’s Demands:

1.    Immediately cease and desist all unlicensed uses of the image, and delete all copies from computers and digital storage devices.
2.    Remit almost $4,000 to his trust account.

The image was removed within minutes. Lengthy discussions ensued. Two days later, a letter of apology was emailed to the lawyer to advise the photo had been immediately removed, and to express regret for the “unintentional errant use” of the image.

The lawyer responded that while they appreciated our commitment to remove the image from the blog, “removal of the image from the website will not relieve you from liability for damages arising from your past infringing use of the image on your commercial website.” The letter also stated that any further attorneys’ fees and costs incurred to resolve the matter would be added to the settlement demand.

The Defendant’s Response

With some pro bono legal advice, a copy of the Certificate of Registration and the date that the image was first published was requested. While the letter contained all sorts of legal jargon, it failed to verify the image was copyright registered and that the lawyer’s client, a photographer, owned the rights to the image.

A few notes were exchanged, and by entering a registration number at the U.S. Copyright Office’s website (, we were able to confirm the image was copyright registered and the lawyer’s client was the rightful owner. Shortly after, we provided a counter offer of $1,925, which we figured would provide the photographer about $100 per month, and the lawyer three-hours’ pay at a lofty $400 per hour. We felt that was generous and more than fair to make this problem go away.

They declined, and due to the exchange of letters (while respectful in nature and completely reasonable, considering we were merely asking for registration and ownership proof), the lawyer slapped on an extra $2,500 in attorney fees, which he subsequently agreed to remove.

The Dilemma

Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept. We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive.

In fact, you can find articles and discussions online on how lawyers around the globe are capitalizing in technologies and laws to bring in piles of claims for copyright infringement damages. For example, check out Copyright Lawsuits as a Business Model.

The Decision

While we considered the lawyer’s demands abusive, the fact remained that our client was trapped in the ordeal, and it was costing him time and causing him grief. Plus, he’d be the one to get subpoenaed. So we opted to settle for $4,000.

It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority. Moreover, settling the matter would allow us to focus on writing copy to market and sell products and services, and build productive relationships, rather than deal with an aggressive lawyer.

Lesson Learned

As web copywriters, we work with dozens of web designers around the globe. Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it “delete and toss”).

While this might work with some individuals and organizations, particularly if they’re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle. For those who insist, “It won’t happen to me,” mind the fact that this beach photo was the only one we’ve ever grabbed from the Web for a client’s website. And it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission.

As copywriters, we work with and rely on a range of creative types and specialists, including photographers. We didn’t mean any disregard for this profession and now have a greater awareness and appreciation for the fact that freely using photos from the Web diminishes a photographer’s income and livelihood. We apologize, and it won’t happen again.

Copyright Resources

We’re copywriters — not copyrighters — so this is meant to share our experience, not to provide formal legal advice. However, there’s a lot of useful copyright information on the Internet, which you can check out.

Fair Use — If you’re using copyrighted work for teaching or research, criticism or comment, or news reporting, it may be considered fair use.

Berne Convention Implementation Act of 1988 — The US adopted the Berne Convention for the Protection of Literary and Artistic Works, an international agreement governing copyright that was initially established in Berne, Switzerland in 1886.

10 Big Myths About Copyright Explained — Techie and photographer Brad Templeton touches on common copyright myths.

Free and Commercial Stock Photography Sources

As part of our updated policies, our copywriters are required to only use stock photo websites in a bid to play by the rules, be fair to photographers, and keep lawyers out of the equation. Here’s a list of stock photo sources you might want to consider, where you can get photos starting at $1 per image:

*For the record, the Pixmac link is an affiliate link (so we can recoup some of the settlement costs and support our caffeine addictions). It’s a relatively new company with 11 million images to choose from, at affordable prices.

Creative Commons

Some photographers let people share and use photographs under Creative Commons licenses, which is an alternative to full copyright (special thanks to Vancouver photographer Kris Krug, who brought this to our attention). You can find millions of Creative Commons photos at Flickr.

Update: Another good information source is the Canadian Intellectual Property Office.


*****This was a post by Copywriters from Webcopyplus’s blog. For more information on copyrights, reach out to The DS3 Group for legal advice or keep an eye out for “DS3 Legal Watch” articles on

'Santa Claus is Comin' To Town' Is Latest Song Embroiled in Termination Rights Litigation

December 21, 2011

By Eriq Gardner, THR

One of the big issues in entertainment law this past year was songwriters terminating copyright grants to wrest back control over songs. The year is ending with a bang as the estate of J. Fred Coots is terminating publishing rights on one of the biggest hits of the holiday season, “Santa Claus is Comin’ To Town.” The estate has filed a lawsuit against EMI that seeks a declaration confirming the validity of a termination notice sent to the music publisher.

Coots, along with fellow songwriter Haven Gillespie, wrote the song in 1934, which was first sung by Eddie Cantor, and hit the top of the charts. Since then, it has been covered by more than 150 musicians, including Bruce Springsteen, Destiny’s Child, Green Day, Justin Bieber, Lynyrd Skynyrd, and the Beach Boys.

Judge in ‘Y.M.C.A.’ Copyright Termination Battle Asks to Hear More Information

The song was originally assigned to Leo Feist, who at the time ran a publishing company that was among the largest in the world. The assignment was renewed several times, including in 1981, after Congress a few years earlier had extended the copyright term. That year, Coots had sent a notice of termination before coming to an agreement with a company that was the successor in interest to Feist. Later, EMI acquired the company. Coots died in 1985.

Village People Singer’s Copyright Fight Could Change Music Industry

Two decades later, Coots’ heirs sent a new notice of termination to EMI.

In 2006, the estate reached an agreement with Warner Bros. Music Corporation to administer rights to Coots’ songs. The following year, Warner Bros., on behalf of the estate, sent a follow-up notice to EMI of termination on the popular holiday song. EMI’s lawyers, however, argued that the work couldn’t be terminated again because Coots had already exercised his termination rights in 1981.

Now, the Coots’ estate is seeking a Florida federal court’s declaration that the 1981 notice was invalid and unenforceable and that the 2004 notice is in force. The plaintiff is also seeking compensatory damages.

Add “Santa Claus is Comin’ To Town” to a list of songs, which includes “Y.M.C.A.,” “Funkytown,” and “Eye of the Tiger,” now in the midst of termination proceedings. Since artists are allowed to terminate a copyright grant 35 years after first publishing, and since the termination provision of US copyright law went into effect in 1978, there will likely be plenty more disputes as songwriters do the math.

Many of these termination attempts have, and will, set off curious legal questions, such as whether one co-songwriter needs cooperation from another co-songwriter to terminate or, as this latest case shows, what constitutes a “valid” termination notice. In many instances, judges will be tasked with playing music historian.

“Termageddon is nigh,” wrote Suffolk University law professor Stephen McJohn recently in a law paper rounding up the year’s top intellectual property stories. “Courts may be asked to determine the precise working arrangement of rock bands working in the 1970s, where the memories of key witnesses are likely to be affected by narcissism, narcotics, or necromancy (especially in the case of drummers, per Spinal Tap.)”

Man Who Leaked Madonna Song Arrested in Spain: Report

December 21, 2011

By Dan Rys, New York

Madonna may yet get to the bottom of who leaked a demo of her single “Give Me All Your Love” in November, as Spanish authorities arrested a 31-year-old man in Zaragoza, Spain today and charged him with the crime, according to a report from Reuters. The man, described by police as a “big Madonna fan,” was identified only by the initials J.R.M. and was released after being charged with the crime, the police said in a statement.

“Give Me All Your Love” was to be part of Madonna’s first new album since 2008’s “Hard Candy,” which debuted at number one on the Billboard 200 Chart upon its release that May. The singer, who is scheduled to perform at the Super Bowl XLVI Halftime Show on Feb. 5, signed to Interscope Records last week, reportedly on a three-album deal.

Madonna Signs With Interscope, Source Confirms

After the song leaked, Madonna and her manager Guy Oseary were upset, with Oseary taking to Twitter to vent his frustrations. According to Reuters, lawyers for the singer tracked the leak to Spain, where the Spanish police found recordings of the leaked track in the man’s possession.

Madonna recently released another new track, “Masterpiece,” which she had written for the movie “W.E.” The film is her directorial debut and was recently nominated for two Golden Globes, for best original score and best original song for “Masterpiece.”

U.K. Music Industry Calls Gov't Copyright Law Reform Plan 'Unrealistic,' 'Overstated'

December 22, 2011

By Juliana Koranteng, London

The U.K. music industry has lambasted the government for unrealistic expectations in its copyright reform proposals, published Dec. 14, to boost the national creative businesses in the digital age by relaxing certain provisions in the copyright law next year.

If adopted, the proposed changes, which undergo a major consultation period with the affected sectors (including film, books and games) during the next 14 weeks, could lead to a radically changed intellectual property (IP) legislation.

Unveiled by the U.K.’s Intellectual Property Office (IPO), the proposals form the government’s official next move after recommendations made in the Hargreaves Review, the independent report commissioned by Prime Minister David Cameron in November 2010 to make copyright legislation easier to implement while toughening IP protection.

Ian Hargreaves QA: The Man Behind The U.K.’s Groundbreaking Digital Copyright Reform Plan

    U.K. Music Biz Reacts to Hargreaves Copyright Report

Designed to foster innovation and enhance economic growth as well, the Review’s suggested reforms are expected to boost the country’s gross domestic product (GDP) by between 0.3% and 0.6% annually.

That amounts to economic growth of between £5.5 billion and £7.9 billion ($8.5 billion-$12.2 billion), concludes the IPO, which is part of the government’s Department for Business, Innovation and Skills.

But U.K. Music, the umbrella organization representing the total U.K. music sector, believes the calculations are based on “deeply flawed assumptions.”

“From the evidence presented so far, U.K. Music believes that these growth projections are overstated and unrealistic,” it said in a statement.

“Added to this is a very real danger that poorly targeted or ideologically driven changes to copyright law could instead undermine growth, both for the U.K.’s creative sector and those digital businesses dependent upon our valuable content.”

However, Baroness (Judith) Wilcox, the minister for intellectual property, said in her statement that “we are encouraging businesses to come forward with thoughts and evidence on our proposals (for) some freeing up of existing copyright legislation. This consultation is (to) ensure copyright legislation in the U.K. keeps up to date with emerging technologies and consumer demand.”

Like the other creative businesses, U.K. Music and its members will be offering more detailed opinions during the consultation period that ends March 21.

The proposed revised legislation will enable consumers to “format shift,” that is, legally copy their CDs to .mp3 players, iPods and other digital devices. This alone is expected to generate a potential annual GDP growth of £0.3 billion-£2 billion ($0.46 billion-$3 billion), says the IPO’s analysis of the Hargreaves recommendations.

Improving the means for licensing and clearing “orphan works” by unknown rights owners is expected to yield GDP growth of up to £0.3 billion ($0.46 billion) a year.

Opening up the channels that allow the parody of other people’s copyrighted works without permission will lead to a GPD growth impact of up to £0.6 billion ($0.92 billion).

The single recommendation expected to generate the most in terms of GDP impact is the Digital Copyright Exchange (DCE), the planned groundbreaking platform that would simplify the means by which rights owners license their works to users. That alone is expected to lift the U.K. GDP growth by £2.2 billion ($3.4 billion) a year.

And its importance in the scheme of things was confirmed last month (November), when Vince Cable, the secretary of state for business, innovation and skills, appointed Richard Hooper, the former deputy chairman of communications regulator Ofcom, to conduct a study to determine the DCE’s feasibility.

The IPO’s analysis also concludes that the proposed reforms could help improve the digital-music revenues yielded in the European Union (EU), where the U.K. is the biggest single digital music market. Although it is bigger than the U.S. in terms of population and GDP, the EU still lags behind the United States.

The EU has a population of about 501 million compared with the U.S.’ 310 million, while it has a GDP of €12.8 trillion ($19.8 trillion) next to the U.S.’ €11.1 trillion (€17.2 trillion).

Currently, it estimates, the EU’s digital-music market generates about €900 million, that is 33% of the €2.7 billion generated in the U.S.

Tim McGraw Wins Lawsuit Against Curb Records

November 30, 2011

By Ray Waddell, Nashville

A Nashville judge has ruled in favor of Tim McGraw and against Curb Records in an ongoing legal dispute between the two, according to the Nashville Tennessean.
McGraw is now free to record for another label-or on his own-without Curb, which has been his only label home throughout his career. A trial for the damage portion of the suit is set for July. The status of “Emotional Traffic,” the latest McGraw album delivered to Curb that the artist presumed to be his final one of the label, is unclear.
On May 13, Curb Records filed a breach of contract suit in Davidson County Chancery Court against McGraw in relation to McGraw’s recording agreement with label. McGraw filed a counter suit against Curb Records on May 24 seeking advance payment and recording-fund reimbursement, unspecified damages, and a jury trial.

The counter-suit also asked that McGraw’s “Emotional Traffic” record be deemed McGraw’s last album due the label and for McGraw to be “free to begin recording for himself or any other party as of July 23, 2011.”

Curb alleged in the May 13 complaint that McGraw’s “Traffic” tracks were recorded too early prior to its delivery “in a transparent tactic to attempt to fulfill his contractual recording commitment to Curb prematurely in breach of the recording agreement.”  

Tim McGraw: ‘After 13 Albums, It’s Time For a Change’

Curb’s position in the suit was that McGraw’s recordings should be “topical and new” and that the artist had agreed that each new album be recorded “no earlier than 12 months and no later than 18 months” following the delivery of the previous album. The suit alleged McGraw began recording “Emotional Traffic” tracks “in 2008 or before,” prior to the allowable period under contract, according to Curb. Curb’s suit sought undisclosed damages and a sixth “option period” record, as well as “injunctive relief preventing him from agreeing to provide, or providing, his personal services as a recording artist for the benefit of parties other than Curb Records until he has fulfilled his duties and obligations under the Recording Agreement.”

In McGraw’s expansive response, the artist stated that the material for “Traffic” was recorded and mastered in early 2009-2010 and Curb was holding the album “hostage from country music fans for the purpose of compelling Tim McGraw to serve perpetually under a contract that he has already fully and faithfully completed.” The suit added that Curb’s “repeated serial releases of what it characterizes as greatest hits albums is obviously a naked attempt to create a perpetual recording contract, forcing Tim McGraw into a repressive environment of indefinite duration.”

Between 2006 and 2010, Curb put out six compilations or variations on hits packages, the latest being “Number One Hits” last November. Curb has released a total of seven compilations on McGraw.


Tim McGraw: The Billboard QA


Amid numerous charges of “bad faith,” McGraw’s response stated that since 1997 Curb has never rejected any of the 108-plus master recordings McGraw has delivered, and that Curb’s release of compilations extends the allowable delivery period to 24 months. The counter-suit also broke down in detail why the artist believes “Traffic” to be his final album due the label under contract. Among the allegations are that Curb “enticed agents for Mr. McGraw to present the unfinished rough mixes [of “Traffic”] under false pretenses … to avoid paying [McGraw] the advance” for delivering the album. In addition to the breach of contract charges, the counter-suit charges intentional interference with business relationships, including with “various entities regarding his “Emotional Traffic” tour” and “created a void” of McGraw’s music at radio.

Curb attorney Jay Bowen of Nashville-based firm Bowen Unger did not immediately respond to a request for comment. McGraw was represented by attorney William Ramsey, who also could not be immediately reached.
Curb has been the only label home for McGraw, who released his first album “Tim McGraw” in April of 1993; his first single “Welcome to the Club” came in ’92. In recent years, McGraw has made known his frustration with his label deal and his belief that he owed the label only one more record after his most recent studio album, “Southern Voice,” released on Oct. 20 of 2009.

McGraw told Billboard in an interview around the time “Southern Voice” was released that it was recorded in the fall of 2007. Asked about the delay in releasing  “Southern Voice”, McGraw told Billboard, “You’re from Nashville, you know about Curb Records. They had three greatest-hits records out or something like that [between 2007’s “Let It Go” and “Southern Voice”]. I thought [“Voice”] was coming out a lot quicker than it did, then the greatest-hits records kept dropping. I’ve got one record left on this label, and I can’t help but think that it was a stall tactic to add another year to my contract.”
In a keynote QA at the Billboard Country Summit in June of 2010, McGraw thanked Curb for signing him and jump-starting his career, but reiterated his thoughts that his next album, which he said at that time he’d already recorded but not mixed, would be his last for Curb. “I’ve had a great career,” he said, but added, “it’s time for a change. I think I’ve earned that.”  He also weighed in again on the plethora of “Hits” packages from Curb: “It’s sort of taking advantage of people,” he said.