Week 11: Final Evaluation

I have thoroughly enjoyed this class. Having been in the legal profession as a secretary, much of the terminology was already familiar making it a bit easier for me. Mr. Pinto pushes you to explore and reach outside your boundaries in a friendly, competitive way. He truly knows his subject matter and conveys it in an often humorous approach to the law. His class is fast-paced yet very informational if you pay attention. He is up-to-date on not only the law, but also the technological and software practices of businesses today. He not only teaches but also leaves you with questions that you truly want to research and answer for own self interest as relates to your field. He has the unique ability of so few teachers that can “light a fire” under you and make you want to perform to his expectations, therefore, raising your own at the same time. I can honestly say that I feel I have learned more from this class than any other this semester. Mr. Pinto’s coverage of the subject matter is in depth and he makes it interesting with his personal stories from having been in the business and actually dealing with many of the subjects firsthand. Although I regrettably missed two weeks of class, I feel that I performed to the best of my ability and participated regularly in class. If I were to grade myself, I would definitely say at least a “C”, because even though I did not complete all of the required work, I did complete most of it and delivered the best quality of work that I could. This has definitely been an enjoyable experience and learning from Mr. Pinto has been an eye-opener. With him you will get “just the facts” and if you need advice, he will tell you up front, “Find a good attorney, I don’t give legal advice.”

Week 11 Final Evaluation: Forced Choice
1 Kristine Alberto – I think Kristine did an excellent job answering all of the questions, stayed on subject and went in depth.
2 C. J. Jones – well thought out answers with all the required quotes.
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10 Lonnie Chester – Although he didn’t provide enough quotes, I think Lonnie did come across as trying very hard to complete the project.
11 Ryan Fernandez –Well thought out answers, just no quotes.
12 Joanne Fernandez – Other than lots of grammar and spelling mistakes and one question that related more to divorce than the subject at hand, overall a good job.
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15 Jake Crissman – Incomplete but tried to answer the questions.
16 Christina Cassaro- I think Christina tried to work with what she had but still didn’t complete all of the questions.
17 Katherine Calesing – I think Katherine got off subject on most of the questions.
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20 Stephen Armellino – I think that he could have at least produced something, even if his attorney was out of state.

EOC Week 10: Robert Kearns

Robert Kearns was portrayed in the movie "Flash of Genius". It is a typical David and Goliath story where he took on all the major automobile makers and eventually won. Though it costs him everything, including his health, family and decades of legal fights, he stayed the course and decided that his idea was just that, his, and fought the bully auto makers for stealing it from him. Most people would have given up and let it go but Mr. Kearns fought for the principles and ethics he believed in, which was you do not steal. Although I don't know if I would be willing to give up my family, in many ways I admire Mr. Kearns for having the fortitude to stick it out till the end.

BOC Week 10: Lawyer Jokes

How many personal injury attorneys does it take to change a light bulb?

Three–one to turn the bulb, one to shake him off the ladder, and the third to sue the ladder company.


How do you tell if it is REALLY cold outside?

A lawyer has his hands in his own pockets

http://www.blogger.com/www.lawyer-jokes.us


A defense attorney was cross-examining a police officer during a felony trial -- it went like this: Q: officer, did you see my client fleeing the scene? A: No sir, but I subsequently observed a person matching the description of the offender running several blocks away. Q: officer, who provided this description? A: The officer who responded to the scene. Q: A fellow officer provided the description of this so-called offender. Do you trust your fellow officers? A: Yes sir, with my life. Q: With your life? Let me ask you this then officer, do you have a locker room in the police station, a room where you change your clothes in preparation for your daily duties? A: Yes sir, we do. Q: And do you have a locker in that room? A: Yes sir, I do. Q: And do you have a lock on your locker? A: Yes sir. Q: Now why is it, officer, if you trust your fellow of ficers with your life, that you find it necessary to lock your locker in a room you share with those officers? A: You see sir, we share the building with a court complex, and sometimes defense attorneys have been known to walk through that room.


Jokes!
http://www.best-funny-jokes.com/attorney-jokes-8104

First Amendment and the News

Vivian Diamond
EOC: Week 9
The First Amendment and the News

In the news this week was the issue of a Florida pastor declaring to all who would listen that in remembrance of the attacks on the World Trade Center on 9/11, he and his church followers were going to burn copies of the Koran. It garnered much publicity in the news to the point that even President Obama has stepped in to ask this man not to go ahead with his plans.

Should this pastor, Terry Jones, be allowed to put American soldiers and citizens in Muslim countries at risk of danger or even death in retaliation of his act? Or should his First Amendment rights supersede those of many other Americans that may be in harm’s way?

I personally think this is almost like yelling “Fire” in a crowded building. It is against the law because of the danger to life and limb it can cause in inciting panic in a crowd. If you have followed the news about this story, you will have seen how many Muslims are already up in arms over this matter. I would go even further to say that if Pastor Jones wanted to go to Pakistan and put on his show there, than fine, take chances with his own life, not those of innocent people who may or may not have a choice in being in a prominently Muslim country when the firestorm is set off.

Was President Obama justified in speaking up? Yes, in protection of his fellow citizens abroad, I feel it is time that we have leadership that isn’t afraid of expressing an opinion when it comes to religion or other touchy topics when American lives are involved. Mr. Jones has said that he has reconsidered because the other issue of the Mosque being built in New York near ground zero has been changed. (which I read this morning isn’t true)

Your own argument and opinions. Did you agree or disagree with the rulings. Provide some authority for your argument such as quotes from the book.

“In Mattel, Inc. v. MGA Entertainment, Inc., No. 09-55673 (9th Cir. July 22, 2010), a Mattel employee (under an employment agreement assigning his work product to Mattel) two-timed his employer by providing a rival toy company with the idea for, and sketches and a crude sculpt of, a doll that MGA eventually transformed into the successful BRATZ line of dolls and characters.” http://secondarymeaning.blogspot.com
The basic background and elements of the case is as follows:
Carter Bryant was an employee at Mattel, working in the “Barbie Collectibles” section designing hair styles and fashions for their high-end dolls, not the dolls themselves. In August of 2000, he pitched his idea for Bratz dolls to two employees of MGA, subsequently being called back by the CEO of MGA and taking some initial sketches and a crude “dummy” doll made from scraps from Mattel bins. The conflict comes in because he was still working for Mattel at the time. Bryant signed a consultant agreement on October 4, 2000 with MGA, even though the document was dated for September that year, and gave Mattel notice on October 4, 2000 finishing up his employment on October 19, 2000. During this time, however, he was also working with MGA on the Bratz doll idea. When Mattel found out that Bryant was behind the Bratz line, they sued saying that the Bratz name and the initial sketches belonged to them and won. After establishing ownership, Mattel sued MGA for $1 billion dollars for copyright infringement, saying that Bryant should have given his ideas, sketches, etc. to Mattel because of an employment agreement that Bryant signed when he went to work for Mattel. Bryant and MGA claimed that he came up with the idea on his “off” time and that it was in no way connected to his duties at Mattel, which encompassed hair styles and clothing designs for Barbies, therefore he should own the work. Mattel argued that the employment agreement stated that they would own the rights to any “inventions” created by Bryant and inventions included his ideas.
The District Court sided with Mattel, interpreting the part of his agreement stating “at any time of my employment” included his off time, basically giving them all rights to the Bratz line of dolls. However, on appeal to the Circuit Court, the opinion given by Chief Judge Kozinski, overturned this decision, saying that the wording in the employment agreement was ambiguous and did not include consignment of Bryant’s “ideas” to Mattel because his agreement used the word “inventions” instead, to which Mattel would have owned during his course of employment. Other employees at Mattel had testified as to both interpretations, one saying that everyone worked on other things on their off time and that those creations would belong to them, another testified that everything he created while employed at Mattel belonged to Mattel. Kozinski opined that it was MGA’s extensive development, marketing and investment that propelled the Bratz line to become such a success and that Mattel was not entitled to the efforts of all of their hard work. As it stands now, the case can and probably will be taken back to court to determine if the original sketches and the Bratz name actually belong to Mattel.
Which brings us and the courts to determine, can you own an idea? The example given in this case was that Degas could not stop other artists from painting ballerinas because then the first person that comes up with an idea would then have a monopoly over that idea. This brings up the old adage “to build a better mousetrap”. In other words, certain basic components that are not protected by law, when arranged in a new way with certain unique characteristics becomes a different “expression” of a design or idea and can be protected by law. The court decided, I think correctly, that Mattel did not have the monopoly on fashion dolls with a bratty look. I also feel that since Bryant’s employment agreement did not clarify that “at any time” also included his off hours, his work done during this time should belong to him. If Mattel was paying him for 24 hour-a-day employment that would be different but I am almost sure that he had certain hours specified as to his employment and as long as he did not infringe upon those specified hours with outside ideas or work, Mattel should not be able to claim ownership. What if I drop off to sleep thinking about work and dream of a great new “idea” that may in some way connect to my employment indirectly, should my employer also be able to claim ownership of my dreams? An idea is intangible, and as such, should not be declared property by someone else, employer or otherwise, unless they can prove that they, too, had the same revelation in exactly the same expression.
Our book distinguishes between ideas and tangible creations as follows:
“Trade secret protection for ideas should be contrasted with copyright protection, which only protects the actual expression of the idea and not the idea itself. Because of this difference, trade secret law can often best protect the conception and development stages of a work before it is finally fixed in a tangible medium and published, at which point copyright protection takes over.” CP&T pg. 506, Stim, 9th Ed.

Rule of law -- a concise summary of the main precedent established. Support with quotes form the book

In one of my questions I refer to a nondisclosure agreement and whether or not being able to use knowledge learned in freelance work. Although it varies, I will cover one of the most important items of information when starting a new job, a client list. These lists are quite often covered in nondisclosure agreements and end up in court when a former employee uses them. When this issue comes to court, a judge usually considers a few items before deciding whether or not a customer database qualifies as a trade secret. First of all, is the information easy to obtain? For example, if all the information can be easily gotten from the phone book, it cannot be protected. Another consideration would be whether the list contains other things besides just phone numbers and addresses, such as order history and special pricing which would add more value to the list. How much effort it took to assemble the list is would also come into play. Whether or not the employee contributed to the list, helped create the list and had contact with the customers is a factor that would be taken into account. If a business can prove that the list is exclusive to their business and has been in use a long time, it will probably be protected. Our book gave examples of each:

“Example 1: A salesman worked for an insurance company selling credit life insurance to automobile dealers. When he switched jobs to work for a competing insurance company, he took his customer list and contacted the customers because the names of the automobile dealers were easily ascertainable by other means and because the sales man had contributed to the creation of the list. (Lincoln Towers Ins. Agency v. Farrell, 99 Ill. App. 3d 353, 425 N.E.2d 1034 (1981).)” CP&T pg.497, Stim, 9th Ed.

“Example 2: Former employees took the client list of a temporary employee service. The former employees argued that the list could not be a trade secret since the information could be obtained through other means. A court disagreed and prevented the ex-employees from using the list, because it could not be shown, using public information, which companies were likely to use temporary employees and because the list also included such information as the volume of the customer’s business, specific customer requirements, key managerial customer contacts, and billing rates. (Courtesy Temporary Serv., Inc. v. Camacho, 222 Cal App 3d 1278 (1990).) CP&T pg.497, Stim, 9th Ed.

Reasoning of the Law -- analysis of the thinking process and logic used by your lawyer

Questions
Answers
Opinions

Q: Can you use other’s designs in a portfolio without infringing artist’s rights?
A: Although it helps to ask first, yes as long as you are not making a profit from someone else’s designs or claiming them as your own, it is legal to use in a portfolio.
O: I agree with this. Our book defines copyright infringement as follows:
“Any unauthorized use of a copyrighted work that violates the copyright owner’s exclusive rights in the work constitutes an infringement. Common examples of infringement are:
• Making unauthorized copies of an original work for commercial purposes
• Using a composer’s tune in a song with different words
• Including in a computer program important software subroutines authored by someone else
• Adapting another’s work in one medium (such as a book or play) for use in another medium (such as a movie or CD-ROM), and
• Outright plagiarism of somebody else’s prior original copyrighted work. CP&T, pg. 220, Stim, 9th Ed.


I think the key is to acknowledge the author or owner of the work when using it in your portfolio.

Q: Can you incorporate a public domain into a specialized design and copyright it?
A: Yes, but only the specialized design portion will be copyrighted.
O: Our book defines public domain as follows:
“Any work of authorship that is not protected under copyright law is said to fill within the public domain. This means that anyone can use the work without obtaining permission from the author or the author’s heirs. “ CP&T, pg. 284, Stim, 9th Ed.
This answer makes sense because you can’t copyright many elements to a design because they have always been there, but you can copyright a new “arrangement” of said designs to include new additions to the basic elements.

Q: What rights do I retain when using company software?
A: The short answer was it depends on what kind of employment agreements, etc. you may have signed with the company.
O: If you have signed an agreement with your employer that consigns any work you do to the company, than any designs created with their software becomes their property, especially if it was created with earning a profit in mind. Our book covered only inventions stating:
“The only inventions an employee can’t be required to assign to the employer are true independent inventions – those that are developed completely without company resources and that don’t relate to the employee’s work or the employer’s current business or anticipated future business.” CP&T, pg. 108, Stim, 9th Ed.

Q: In a series, do you copyright individually or in a series?
A: Unless the series, such as photographs, architectural designs, etc., are submitted as a compilation piece, a copyright is granted for each single piece of work.
O: My attorney was not absolutely definitive on this answer. He was referring to architectural designs of buildings that had come under litigation. It would make sense though, that unless it is a book of pictures, or drawings or something similar that you would have to copyright an individual design such as a logo. Our book defines an “architectural work” under the COPYRIGHT ACT OF 1976 as follows:
“An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” CP&T, pg. 319, Stim, 9th Ed.

Q: What is the average price to keep an attorney on retainer?
A: My attorney said that he works by the hour, whether on retainer or not, which is three hundred dollars an hour. He also said it could vary by attorney, which is why some companies have in-house legal departments.
O: As a small operator at this time, I would have to agree with paying by the hour because I would not want to pay someone for a year’s worth of work to only use them once or twice.

Q: If you do a design, etc. for a client and are not paid for it, does the actual design belong to you or the client?
A: This would depend on who actually created the design, you as a designer, or was it a finished design which the client wanted duplicated into a different medium. If it is something you created, whether paid for or not, the design belongs to you and the client would have to get authorized use from you.
O: I feel my creations should belong to me. Many times, we have had clients come to us with no idea at all of what they want and will tell us to just do what we think looks good. We charge for artwork as well as material items we sell so I would consider this as falling under the artwork category if it is my design. Our book defines the copyright claimant as follows:
“A copyright claimant is the party considered to be the basic owner of the copyright in a work being registered with the U.S. Copyright Office. The copyright claimant may be any of the following:
• the actual author of the work
• an employer (also considered the actual author) whose employee created the work in the scope of employment
• a party who commissioned a work made for hire, as defined in the Copyright Act (also considered the actual author)
• a party to whom all rights in a work have been assigned, or
• a party who had come to own all of the exclusive rights that make up the copyright.” CP&T, pg. 219, Stim, 9th Ed.

Q: If you do designs and aren’t paid, what recourse do you have?
A: You can take them to court, but consider which would be more expensive, the court costs or the time and materials you have invested.
O: Sometimes the cost of getting what is owed to you is more expensive than the time you have already lost. Attorneys and court proceedings can be very expensive to even initiate and even if you have the money to follow through to the end, you must consider whether or not the outcome will even benefit you. For instance, say it is an expensive venture that you spent six months on, even if you win will the other person claim bankruptcy and leave you with all the debts anyway?

Q: Do salaried employees have any rights to finished products?
A: Apart from employment variances, such as stock options that some companies offer, no, the employee would not have any rights to benefit from a finished product.
O: Unless you own part of the company, if you are working for someone else with the understanding and maybe even a written agreement stating that your work belongs to them, you should not expect to be paid twice, once for the work you do and again for the ultimate outcome of the work you were hired for.

Q: If I rough out a design on school/company software but finish on my own professional software at what point does it become a creation and what are my rights?
A: You would have complete rights to the finished design. Your employer, however, may have rights to the initial drafts, if done on company time with the understanding that what you create belongs to them. The company may then come up with a comparable idea or design from your drafts, as long as they don’t infringe on your finished design.
O: I don’t particularly agree with this since the book says that:
“A creative work is protected by copyright the moment the work assumes a tangible form – which in copyright circles is referred to as “fixed in a tangible medium of expression.” CP&T, pg. 186, Stim, 9th Ed.
I feel that the design would not be considered tangible until finished, therefore my employer should have no rights to the idea.

Q: Can you use designs/images that have no release documentation into a portfolio or a book?
A: This would depend on whether or not release was sought, and in a book especially, every effort should be made to do so. If this cannot be achieved, then compensation may have to be given at a later date from any profits made from the book if a claim is made against you. A portfolio is different since it is not done for financial gain or reproduced for this intention.
O: I felt like the attorney’s assessment of this was fair. He did explain that the law is constantly changing and depends many times on a judge or jury’s discretion when interpreting the law.

The Questions: Explain why these are of interest to you. What specific concepts and terms were involved – in other words, what are the legal issues?

The odds are high that in this field of work, you will be asked sooner or later to sign a nondisclosure agreement, so it is almost imperative to know what to expect from one. “A nondisclosure agreement is a legally binding contract in which a person or business promises to treat specific information as a trade secret and not to disclose the information to others without proper authorization.” PC&T pg. 513, Stim, 9th Ed.

It would also be beneficial to know what the copyright process is since I will be creating original designs and also who would retain those rights if I am working for a company other than my own. “Under the Copyright Act of 1976 (applicable to all works first published on or after January 1, 1978), a copyright consists of a bundle of rights held by the author or developer of an original work of authorship.” PC&T pg. 217, Stim, 9th Ed.

“Copyright law protects expressions of creative ideas such as songs, artwork, writing, films, software, architecture, and video games.
Trademark law protects marketing signifiers such as the name of a product or service or the symbols, logos, shapes, designs, sounds, or smells used to identify it.
Trade secret law commonly protect confidential designs, devices, processes, compositions, techniques, formulas, information, or recipes.” PC&T pg. 6, Stim, 9th Ed. All of the above will apply to the work I am looking to do in the future, whether for myself or another company. I feel it would be better to be prepared as much as possible so that I don’t get caught up in a job that if fired or laid off, would prevent me from continuing in my field or that would not let me use my designs if they did not benefit the company in any way. It is better to be informed than to be disillusioned in my chosen profession.

Legal Authority: How I made contact, found this person and why they are a good choice.

The attorney I chose was John Mowbray. The reason I chose him was because my husband and I have done business with him before, although not concerning the topics we covered in class. I was convinced he would be a good choice because when asked to find attorneys to contact in class, his name also came up under a search for business law attorneys.
Mr. Mowbray is a friend as well as an attorney so I thought this would make the conversation easier in terms of being relaxed and trusting enough to talk with me. He did not hesitate at all when I first phoned him and told him I was doing a school project and could he take the time to answer some questions for me. I really had no clue until I did the search that his specialty was business law, since the matter he had previously helped us with was the adoption of one of our children. He did tell us at the time that adoption was not his specific branch of law that he practiced but he was trying to help us out as a friend.
Our class subject is closer to his type of practice, which is business law that covers intellectual property. “Intellectual property refers to products of the human intellect that have commercial value and that receive legal protection. Typically, intellectual property encompasses creative works, products, processes, imagery, inventions and services and is protected by patent, copyright, trademark, or trade secret law.” PC&T, pg.2, Stim, 9th Ed.
As a graphic designer, I can reasonably assume that I will have to encounter at some time in my career a legal question or problem concerning either an idea or concept that I create. As a business owner already, it has come up once or twice when clients bring graphics that we know are either copied, or “taken” from a source that is well known.

Legal Questions

1. If I am asked to sign a nondisclosure agreement, can I use skills I developed in the company for freelance work?

2. Can you incorporate a public domain design into a specialized design and copyright it?

3. What rights do I retain when using company software?

4. In a series, do you copyright individually or as a series?

5. What is the average price to keep an attorney on retainer?

6. If you do a design, etc. for a client and are not paid for it, does the actual design belong to you or the client?

7. If I come up with an original idea when working for a company, who owns the idea if there was no contract specifying this beforehand?

8. Do salaried employees have any rights to finished products?

9. If I rough out a design on school/company software but finish on my own professional software at what point does it become a creation and what are my rights?

10. If I am given a design to work on that is stolen but I don't know it, can I be sued as well as the company?