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Emily Bass

Emily Bass’s Answers

261 total

  • For a copyright notice, is it okay to just put the current year, or should all applicable years be mentioned?

    For example, is it okay to just put (C) 2011, or should I put (C) 2005-2011 ie all the years the copyright is valid? The only reason I want to put (C) 2011 on its own, is purely for stylistic reasons. Am I at a disadvantage if I do this? Thanks...

    Emily’s Answer

    It is a bit difficult to be precise without knowing what type of work you are referring to. But let me give you some basic guidelines.

    Since copyright attaches automatically upon the creation and fixation of a work in a tangible medium of expression, the copyright symbol you place on your work should indicate the year of its creation. Sometimes you see a range of dates - for example on a web site - when the 'look and feel' of the web site has been updated over a period of time. In that instance, the first date would refer to the original year of site's creation and the last, to the latest update.

    If you created your work (whatever it is) 5 years ago and have not altered it since its creation, personally, I would use 2006 as your date of creation and not 2011. If you only put the current year, you are suggesting to those viewing (and relying on) the copyright symbol that you only created the work recently.

    Although, as I indicated, copyright attaches automatically to a work upon its creation - without the need of registration - you should consider registering your copyright because it gives you certain advantages. It makes you eligible to seek statutory damages and attorneys' fees in the event that someone begins infringing your work after the effective registration date. (If you register your work within 3 months of initial publication, you are entitled to seek statutory damages and attorneys' fees even if the infringement commenced prior to registration.) Statutory damages are generally much more substantial than the damages you would be entitled to claim for an infringement if you did not register your work.

    I would recommend your reading some basic information regarding copyright law and consulting copyright counsel so that you protect your works properly. Good luck.

    Disclaimer: This answer does not establish an attorney-client relationship. It is for general informational purposes only.

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  • Wondering what legal rights i have to sell photos of certain buildings and property (not for commercial use)

    I am an amateur photographer and i am having some trouble finding information regarding property releases. I have several photos that i would like to sell on my website and at art and craft sales. Do i need any releases to sell these images or am ...

    Emily’s Answer

    If I correctly understand what you prpose to do, you shouldn't have a problem from a "copyright"perspective. 17 U.S.C. section 120 l(a) gives you the right to take, distribute and publicly display such photographs.

    You may run into some problems, however, if your photos include or depict any trademarks. You obviously cannot create the impression that the owners of the marks or propertieas involved are associated with or have endorsed your venture. .You should consult IP counsel to review all the facts and make sure you don't violate anyone's TM or copyrights.

    Disclaimer: athierga answer is for general informational purposes. It does not establish an agtorney-client relationship.

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  • When filing for FMLA you need to work 1250 hrs. in the previous twelve months, are paid vacations and paid days off included ?

    My employer ran a hours worked sheet from 11/9/09 to 11/9/10 and they said that i did not have 1250 hours of on the job work. They said that with a disability medical leave from 4/29/10 to 7/5/10, and my 3 weeks paid vacations and other personal ...

    Emily’s Answer

    The question of whether an employee has worked the requisite 1,250 hours within the twelve month period preceding a requested FMLA leave is a very complicated one. A fair amount of judicial ink has been spilled over it.

    I cannot tell you whether you did or didn't satisfy the requirement on the basis of the very limited facts you have provided - especially since you have not said what type of position you hold, the hours you generally worked and/or whether you are an "exempt" employee.

    IN GENERAL, "whether an employee has worked the minimum 1,250 hours of service [under the FMLA] is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. (See 29 CFR part 785). The determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of ACTUAL HOURS WORKED under FLSA's principles may be used."

    29 C.F.R. § 825.110 (c)(1)(emphasis added).

    Given this guideline, there are cases in which employees have been credited with 1,250 hours worked based upon unpaid overtime or off-the-clock work they performed or lunch periods they worked through.

    By the same token, since vacation time, holidays and scheduled sick leave are NOT periods during which an employee actually works, courts do not appear to count them towards the 1,250 hour baseline. See, e.g., Lyon v. N.E. Indep. Sch. Dist., 277 Fed. Appx. 455, 456 (5th Cir. 2008).

    The test they appear to apply in determining whether time should be counted as hours worked or not is the one set forth in 29 C.F.R. 785.16. That Regulation states:

    Off Duty. (a) General. Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.

    29 C.F.R. 785.16 (a).

    Obviously, where someone is an "exempt employee" or holds an executive, professional, or administrative position, the question of how many hours they've worked can come down to an "Employer says, Employee says" situation. And, while technically the employer has the burden to show that an employee has NOT worked the requisite number of hours, 29 C.F.R. § 825.110 (c)(3), courts have been known to award an employer summary judgment on this question. In other words, where the employer does battle on this ground, you may be in for expensive litigation. That doesn't mean that you can't prevail if in fact you have documents or witnesses who can establish that you routinely work hours that aren't reflected on your paystubs.

    I would suggest that you consult an employment attorney in your state to ascertain whether you have or have not satisfied the FMLA's eligibility requirements, whether there is any state "mini-FMLA" law that applies and is more generous, or whether state or federal anti-discrimination laws might afford you any remedy. I wouldn't count on it, but it is possible.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Can school use my copyrighted photos?

    I am a student/freelance photographer. My instructor dropped my camera and broke it. He allowed me to use the school camera to take some shots with. I copyrighted my pictures after taking them. The school has priinted my photos, along with the cop...

    Emily’s Answer

    There are two questions, in my view: (1) Who owns the copyright in the photographs? and (2) Does the School have an implied, non-exclusive license to display the photos on its website and/or in the student handbook?

    QUES. # 1: Who owns the copyright in the photographs?

    This question, in turn, probably has two parts. First, were you employed by the School in any capacity? If not, can you and the instructor be said to be "joint authors" of the photographs?

    The answer to the latter question will turn on answers to the following questions: Did he choose the subject matter of the photographs, make suggestions regarding the angle of the shots, the lighting, the posing of any models or objects or the framing of the pictures? If he did, then you and the instructor might be "joint authors" of the photographs and "joint owners" of the copyright. Since he is probably an "employee" of the School, under those circumstances, you and the School could be joint authors of the works.

    If the instructor did not make substantial contributions to the shots, then you ALONE are their "author." In that event, you are also the sole owner of the copyrights in the photographs. Generally speaking, you can only lose the copyright or any exclusive rights in the photographs if you transfer those rights in writing. I am assuming you haven't.

    QUES. # 2: Can an implied license be said to have arisen in the School's favor, permitting it to make limited, non-exclusive use of the photographs? Or, is the use it has made a "fair use"?

    ANSWER: Much more would need to be known before these questions could be answered definitively. There are two bases upon which - theoretically - I can see an argument's being made that an implied (but very limited) license has arisen.

    First, it is possible that you could be said to have agreed - either explicitly or implicitly - to certain "ground rules" when you were first admitted to the School, enrolled in certain courses, or even went out on this particular shoot. No one can opine on these questions without first reviewing all relevant facts and documentation. (I by no means exclude the possibility that you may not have agreed to the School's use.)

    Second, you haven't said what kind of camera you were lent - an old-fashioned type (with film) or a digital camera. If an old-fashioned camera and the School provided the film as well as the equipment, an interesting question arises: Can that alone be grounds for saying that the School has a very limited right to "exhibit" the photographs recorded on its film under 17 U.S.C. 109(c)? If the camera is a digital camera, a similar question arises.

    Let me explain what I mean. I am assuming that the School didn't simply own the equipment with which the photographs were taken, but the very "medium of expression" in which the images were "fixed." In that event, it would also "own" one "copy" of each photograph within the meaning of the Copyright Act.

    IF that is the case, the School would appear to have the right, by statute, to

    "display that copy publicly, either directly or by the projection of
    no more than one image at a time, TO VIEWERS PRESENT

    17 U.S.C. sec. 109(c)(emphasis added). In other words, a court might well find that the School could display the photograph in an exhibition of student photographs.

    That does NOT mean, however, that the School would have the right EITHER to post the photographs on its website and display them to far-flung persons on the Net OR to reproduce the photographs in a handbook that was intended for distribution to the student population-at-large. In my view, these latter uses might well be infringing since they exceed the scope of the statutory license explicitly provided for in 17 U.S.C. sec. 109(c).

    Interesting question.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes on

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  • How do you transfer the rights to just one song that was copyrighted as part of an unpublished collection?

    If I copyright several of my original songs as a collection to save money now, how can I later transfer rights to just one of the songs if I find a publisher that is interested? I understand this can be more complicated... but how much so and wha...

    Emily’s Answer

    • Selected as best answer

    Copyright attaches automatically to a work upon its creation and fixation in a tangible medium of expression. That is so even if it is never registered.

    The fact that you choose to register a selection of songs or "musical compositions" as a compilation, without registering your copyright in each individual song separately, does not alter that fact. You still own the copyright in each individual song or musical composition and that copyright can be transferred or assigned separately.

    After registration of the entire collection or compilation, you might choose to file a Supplementary Registration so that the individual songs are separately catalogued and indexed in the Copyright Office's records.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Can a patent infringement attorney help me?

    One of the major networks is using the title of one of my books as the name for its very successful television program. This program aired a few years AFTER this name (my book's title and, later, the tv program's name) was registered with the Li...

    Emily’s Answer

    I agree with my two colleagues. You have no recourse in my view.

    Disclaimer: This answer is for general informational purposes only. It does not establish an attorney-client relationship.

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  • I have been approved for FMLA. my immediate manager found out and was angry.

    i have been approved for FMLA. my immediate manager found out and was angry. so she decided to tell everyone why i had FMLA. everyone at work knows about my condition now. she did violate the privacy can i sue?

    Emily’s Answer

    In addition to the general tort theories referred to by my colleagues, there are two Regulations with which you should familiarize yourself They are contained in the Code of Federal Regulations or "C.F.R." One regulation, 29 C.F.R. § 1630.14, pertains to records that are governed by the Americans with Disabilities Act ("ADA"); the other pertains to records governed by the Family and Medical Leave Act ("FMLA"). They MIGHT both be applicable. You should consult with an employment attorney in your state to ascertain, based upon a full disclosure of the relevant facts, what your rights are and whether you have viable claims.

    If the ADA is applicable, records are required to be kept in accordance with the criteria set forth in 29 C.F.R. § 1630.14. That Regulation requires information obtained regarding the medical condition or history of any employee to be "collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record," It specifies three circumstances under which confidentiality may be lifted:

    (i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

    (ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

    (iii) Government officials investigating compliance with this part shall be provided relevant information on request.

    Significantly, it then goes on to specify that the information it has referred to "regarding the medical condition or history of any employee SHALL NOT BE USED FOR ANY PURPOSE INCONSISTENT WITH THIS PART." 29 C.F.R. § 1630.14 (c)(2)(emphasis added).

    The Regulations that are applicable under the FMLA are similar, albeit not identical. Thus, 29 C.F.R. § 825.500 (g) states the following:

    "Records and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, SHALL BE MAINTAINED AS CONFIDENTIAL MEDICAL RECORDS IN SEPARATE FILES/RECORDS FROM THE USUAL PERSONNEL FILES, and if the ADA, as amended, is also applicable, such records shall be maintained in conformance with ADA confidentiality requirements" I have referred to above.

    29 C.F.R. § 825.500 (g)(emphasis added).

    You should immediately consult an employment attorney in your state to advise you regarding your rights and claims before you take any further action, in my opinion. You should do so immediately, however, so that you do not miss any deadlines that might obtain under any applicable collective bargaining agreement or grievance and arbitration procedure.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • My contractor posted before and after pictures of the project he did at my home..includes pictures of inside my home.

    He included my name. He did this without my knowledge or permission. Is this illegal?

    Emily’s Answer

    Since the contractor also used your "name," he may well have violated your "right of publicity" or "privacy rights" under state law.

    The "right of publicity" varies from state to state, so you need to consult an intellectual property or tort lawyer in your own state to ascertain precisely what your rights are. However, in most states, no one has the right to use the "name, portrait or picture of any living person" for commercial or trade purposes without first getting that person's permission in writing. In some states, the "right of publicity" prohibits the use of other features of someone's persona - such as their "voice" or "likeness". In still other states, in addition to protecting living persons, the "right of publicity" may protect deceased persons as well. (In that case, it can be exercised by their estate.)

    In those states that do not have a specific statute that confers privacy or publicity rights, there may be "common law" rights - i.e., rights that have been recognized by the courts as existing independently of any statute.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • I was on FMLA leave, the day I was suppose to come back the HR Director told me not to because I had physical restrictions.

    I tired to return to work after FMLA leave. I had a weight restriction for 1 week, I was told not to return the day I was due back. HR Dir. said he would call the next day to see if there was a position available for me. He called the next day and...

    Emily’s Answer

    I agree fully with my colleague's thoughtful response and would add one other possibility: You MIGHT have a cause of action against the employer for "interfering" with your ability to exercise your FMLA rights - in particular, your right to reinstatement under the FMLA. You need to seek out an employment lawyer in Michigan to help you navigate this intersecting maze of laws - the FMLA, any analogous Michigan law that may exist, the Americans with Disabilities Act, state anti-discrimination laws, etc.

    Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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  • Printing a Car on a T-Shirt.

    If I were to print a vehicle that I took a picture of or have art of on a T-shirt and distribute via an online store. Would I need some sort of a license or permission to use a model of the car, even if you can see no badge and if the car is sligh...

    Emily’s Answer

    Question: Will I be infringing someone's copyright if I reproduce a picture or image of a car on a t-shirt?

    Answer: It depends on precisely what you are replicating.

    In general, cars are considered to be utilitarian or useful objects that are NOT entitled to copyright protection. That said, however, there may be designs that are separable from the utilitarian aspects of the car - and capable of existing independently of them - that might be protected.

    What does that mean? That, generally speaking, the design of the car as a whole is not protected by copyright, but a discrete design - such as an ornamental design on a hood or tail fin or grille work - might be protected by copyright.

    If you are copying the former, you would not be infringing. If you are copying the latter, you could be infringing. You need to consult with copyright counsel to review precisely what it is that you plan to do.

    Question # 2: Would you be infringing someone's trademark if you reproduce the image of the car?

    Answer: In my view, this is the more difficult or problematic question. A trademark attorney would need to ascertain what trade or service marks have been registered by a particular auto maker, and what other trademarks might exist at common law.

    You not only need to make sure that you are not infringing on someone's mark, you need to make sure that you do NOT suggest that the auto maker or manufacturer (1) is any way affiliated with your t-shirt business and/or (2) has endorsed or is sponsoring your business or designs.

    The safest course of action is generally to obtain a license to do what you wish, but that may not be possible. If it isn't possible, you will need to decide what degree of risk you want to assume to go forward with your business plan.

    Disclaimer: This answer does not itself establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.

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