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Gary K. Marshall
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Gary Marshall’s Answers

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  • My art piece was published in a book without my permission and my name is not even credited for it. What are my rights?

    I created an art piece and was asked to send it as they were creating a book and would possible include my piece. I sent it and then it came back with no note or anything so I figured it was not going to be used. That was 2007. In 2011 Gourd and F...

    Gary’s Answer

    If you are the author (creator) of the work, then you own the copyright. You have total control over who distributes it and who makes copies. The publisher needs your permission to put a picture of your work in the book.

    There is a question of fact as to whether you gave permission with your original submission. You will need to talk to an attorney about this.

    Did you register your work with the Copyright Office before the book was published? If you did then if you did not give permission you could sue for statutory damages up to $150,000 per infringement (and possibly every copy of the book would be considered a separate infringement). You can also obtain attorneys fees. You would probably not want to sue and you would probably not have to. You would have considerable bargaining power to work out a deal with the publishers.

    If you did not register your work with the Copyright Office before the book was published, you can only sue for your actual damages. Again this is a fact question, but I doubt the damages would be more than a few hundred dollars. You would be in a very weak position with the publisher. You might be able to get them to at least give you credit if they reprint the book.

    You can see why it is important to register the copyright in your works with the U.S. Copyright office.

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  • What are my rights concerning verbal and emotional abuse... what is considered slander...

    i have dealt with someone for 2 weeks now who is continually saying things to me to try to make me angry. i honestly dont know how to handle this. i dont know what the law is. i dont want to call the cops. She will not follow thru with anything sh...

    Gary’s Answer

    A defamation lawsuit is probably not the way to go. Most personal problems are not going to be solved by lawsuits. You can sue someone for defamation. Any lawsuit is expensive to pursue. And proving the elements of defamation can be difficult.

    Defamation is a false statement, maliciously or knowingly made to injure someone, usually through ridicule and damage to that person's reputation. Libel is written defamation. Slander is oral defamation.

    Defamation requires:

    1) a false statement concerning another person.

    2) an unprivileged communication to a third party

    3) fault amounting to
    for public officials and figures - actual malice (actual knowledge that the statement is false or reckless disregard for the truth or falseness of the statement)
    for private figures - negligence (what a reasonably prudent person would do, acting under the same or similar circumstances)

    4) damages

    In many cases damages is the hardest part to prove. Have you actually been damaged enough to justify suing this person? Probably not. Can you prove your damages? Again, probably not.

    If the person only made the statements to you, then there is no public statement and therefore no defamation. There also can be no damage to your reputation if no one else knows about the statements.

    If this person was a friend, you may want to deal with this as a personal problem. You could try talking to them, or having a mutual friend intervene on your behalf. Why did this friend say these things? Is there a way to repair the relationship or at least get this person to understand your point of view? If this person is not a friend, you may want to stop talking with them.

    If this is a small matter and you just want to get them to stop, you could consider suing this person yourself in small claims court. You would have to sue them where they live. If you win, and they keep making these statements you can sue them again. They will eventually get the message. A letter from an attorney will get them to stop some of the time, but in your case it is hard to imagine that it would be worth the expense of paying an attorney to write a letter.

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  • If someone sent me nude pictures of themselves and I posted it on social media then deleted it can I get in trouble?

    He sent the picture then I found out he is cheating on his spouse so I posted the picture of him (no face in picture) on social media then deleted it short after. He had evidence that I posted it though even after delete if it short after. Can any...

    Gary’s Answer

    You said that you deleted it quickly, so I think you already know the answer. Yes of course you could get in trouble with the police and with him. A lot of the law is common sense. You should have thought before you acted. If you deleted the posts very quickly then it is possible you will not get in trouble. But you have just confessed to the actions on a public forum, which was also not a good idea, so it would be easy to prove what you did.

    I wrote several posts on my blog about websites like yougotposted that publish nude pictures of people without their permission. I give a detailed review of the laws involved. If you want more information, please see my blog at http://marshall2law.com/.

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  • Is it illegal to record a so-called "private" conversation? Like with an audio or video recorder.

    On another question, a lawyer mentioned in passing about how, quote, "Recording a private conversation is a gross misdemeanor in Washington State. See RCW § 9.73.030." This is important for me to know. On occasion I have considered gettin...

    Gary’s Answer

    In Washington it is illegal to audio record a private conversation without the permission of everyone being recorded (RCW 9.73 Privacy, Violating Right of, you can easily Google it). Generally you can not use such a recording in court and you can be charged with a crime for making the recording. But there must be some expectation of privacy. Oddly, it is generally not illegal to record video only. There are some exceptions, such as when the person being recorded has some expectation of privacy.

    And there can be restrictions on how the recording is used. Defamation, invasion of privacy, false light, copyright and many other areas of law may come in to play.

    You should consult an attorney who is familiar with this area of law, such as myself, and go over the specific facts of your case with that person if you want a more definitive answer.

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  • I want to buy MYEXAMPLE.com for my business. Will owners of MYEXAMPLE.org have legal claim over the name?

    I am making a significant website and mobile app for which I have the opportunity to buy EXAMPLE.com (where example is just a fill-in here). For our purposes of discussion, lets say that this website is a place to list cars for sale. The issue is ...

    Gary’s Answer

    The answer is maybe. Trademark law is rather complex, and as with most legal questions, the answer is very fact specific. Whether there are similar federally registered marks is only one of many factors that can be relevant. There is no substitute for sitting down with an attorney and discussing your situation. That would be a wise move before investing in establishing a domain name and a brand name.

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  • Need a clear guideline on using photos of children

    I am a manger of a big scale education project. As a part of a project, we create a lot of educational videos and they are to be released to public with open license. These videos are mainly PowerPoint slides with voice over. Each slide contains ...

    Gary’s Answer

    unique facts. This is especially true when dealing with children. There are so many different legal aspects to deal with, as there should be. I disagree with the other commentator who says that there are no special rules when dealing with children. There are many.

    Still it should be possible to come up with some general guidelines that will help reduce risk. Certainly getting written permission from the parents is always a good idea. Because every situation is unique, there is no substitute for you sitting down with an attorney familiar with this area of law, going over the specific facts of your case, and then obtaining legal advice that is customized to your situation.

    I find that common sense goes a long way in the law. Would a typical parent, whether the parent of the child in the photograph or not, be likely to be offended by the use of the child’s likeness in the photograph? If the answer is yes or maybe, then you probably have a problem.

    There is risk to anything you do. You will have to assess whether the risk of using photographs of children outweighs the benefits or not for your project.

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  • If I am writing a book regarding asking numerous people a particular question, do i need to have them sign a release form.

    if i have them recorded giving permission to be in my book is that enough or do i need to have them sign a form. If I use there name. If i need a form is it a simple signing they agree to be in my book

    Gary’s Answer

    You do not have to get them to sign a written release form. But it is still a very good idea.

    Most publishers will not publish your book unless you have written signed release forms. Even if you plan to self-publish now, you may want to go with a publishers later. By then it will be very difficult to track people down and get them to agree to sign a form.

    What are they agreeing to? With just a general recorded statement, that may not be clear. Are you getting E-book rights? Can you use their quotes on the Internet? Is this permission for one small project, or may you reprint the book, or enter into an agreement with a publisher? What if someone wants to make a movie or a TV show about the book, can they? Can you paraphrase them. Can you print excepts from the quote without using the entire quote? What if the finished book is not the same as you represented to them that it would be. Can you still use their quotes? All this would be spelled out in a good release form.

    You can find release forms online. But as with any legal form, it is better than nothing, but still not very good. It is designed to sort of work in all situations, rather than work well in any one situation. An experienced literary attorney such as myself would ask you what type of book you were planning, what other plans do you have for the quotes. Then I would draft an interview release form that fits your particular project. An interview release is not very complicated. This process would not take very long.

    Another advantage to using a written form is that when you present it to people, someone may not want to sign it. That is a good thing. You have identified a potential problem early and had avoided it. Just do not use then in your book. That is a lot better than using them in your book and then having to deal with their lawyer later when they are upset with the results.

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  • Can my neighbor use video surveillance to monitor activity on my adjacent property?

    Her boyfriend has had a surveillance system installed on her house and intentionally aimed a camera at the entrance to my driveway, effectively monitoring my property. It is the only camera that does not cover some part of her home. Does a homeow...

    Gary’s Answer

    • Selected as best answer

    The law is not clear on this issue It depends on what is being recorded and under what circumstances. There is no substitution to talking with an attorney about your specific case.

    In Washington it is illegal to audio record a private conversation without the permission of everyone being recorded (RCW 9.73 Privacy, Violating Right of). But there must be some expectation of privacy. If the recording is say on a public street, then there is no expectation of privacy.

    Oddly, it is generally not illegal to record video only. There are some exceptions, such as when the person being recorded has some expectation of privacy. And there can be restrictions on how the recording is used. Defamation, invasion of privacy, false light, copyright and many other areas of law may come in to play.

    I am not aware of any law on the specific issue of a neighbor intentionally video taping the publically viewable areas of your property. It comes up often these days. I have talked to other attorneys about this. The general consensus is that it is probably not permissible. But there is no clear remedy. You could have an attorney write them a letter asking them to stop. If they do not stop, you could seek a court order prohibiting them from focusing the camera on your property. That is not a very practical solution but it might work.

    Does anyone else on this list have a better idea?

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  • Can I press charges against someone who is posting my number on Craigslist as a joke?

    I had someone post several posting on Craigslist with cars for cheap and they put my number on it so I would get a ton of calls and text messages. Is there anything that the police can do? I know who it is and he needs to learn his lesson. Also, I...

    Gary’s Answer

    If you are being harassed online, the person doing the harassment is probably committing several crimes. These may include laws against stalking and harassing, see RCW 9a.46.110 Stalking and RCW 9.61.260 Cyberstalking and against harassment: see RCW 9A.46.020 Definition — Penalties and Chapter 10.14 RCW Harassment. These statutes define criminal behavior. You can go to your local police department or the police department in the jurisdiction where the person who is harassing you lives and file a police report. In my experience the police will usually not take any action unless the harassment is far more severe then you indicate. But it is worth a try. You can also tell the person that you have filed a police report. That might scare them off.

    These laws do not provide for a private right of action. They do suggest that someone might be able to obtain a protection order. A protection order against the individual who posited on craigslist might be an effective tool to stop that person from harassing you. But there are difficulties with trying to get a protection order. You have to find th person and serve them. You have to have some proof that they are behind the postings. And then if they ignore the protection order, you may have difficulty enforcing the order.

    You do have a cause of action for a lawsuit for damages, but lawsuits are expensive and damages are hard to prove. You could try suing the person yourself in small claims court.

    Sometimes a letter from an attorney will get them to stop. But it also may motivate them to seek revenge by escalating their activities. And of course, attorneys cost money.

    Do you know why this person did this? If this person was a friend or someone you know, you may want to deal with this as a personal problem. You could try talking to them, or having a mutual friend intervene on your behalf. Why did this person do these things? Is there a way to repair the relationship or at least get this person to understand your point of view?

    You should be able to contact craigslist and get each individual entry removed.

    Good luck.

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  • I want to sell football helmets that's custom made with nfl decals on it, I want to know where should I start?

    I want to be able to sell football helmets that I recondition and customize the helmet with nfl decals and colors. But I want to do it the right way, so what forms do I need to go through to be able to do this. Because I love football and I'm very...

    Gary’s Answer

    NFL logos are trademarks that are owned by the NFL. In order to use the trademarks you will need the permission of the NFL.

    It is not hard to figure out who to contact. A simple google search got me to the NFL policy on licensing logos for merchandise. See

    https://www.nfl.info/NFLConsProd/Welcome/CpPrequalify.htm

    Here are a few requirements. You must have been in the merchandising business for at least three years and be able to pay the minimum annual license fee of $100,000.

    This makes sense. The NFL will have to review your proposal and who you are and will have to police your use of their logos. There is a cost to them of doing all of that. They have determined that it is not worth their effort for less than $100,000 a year.,

    You may want to find someone who is already selling helmets with NFL logos under license and see if they would be interested in including your line of helmets with their products. That would be a more realistic approach for an individual.

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