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Gary K. Marshall
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Gary Marshall’s Answers

100 total


  • Do I have to give a notice to cease and desist before I file a lawsuit for defamation?

    Someone is sending defamatory emails full of untrue facts about me to local people and I need to know if I have to give notice to that person to stop these malicious acts before I file and serve a lawsuit for defamation. My reputation is being tr...

    Gary’s Answer

    No you do not have to give notice first.

    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 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 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 it is hard to imagine that it would be worth the expense of paying an attorney to write a letter.

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  • Can a corporation based out of Kentucky file a copyright infringement lawsuit without a cease & desist notice?

    I have a friend, (& yes it is a friend, not me) who runs an E-Cigarette business. He had a line of Camel tobacco flavored e-liquid that he sold. His business is run out of Washington State. A few months ago, Camel sent him a notice right out of th...

    Gary’s Answer

    You may have copyright and trademark confused. They are separate legal concepts. In either case, they have no duty to warn your friend first and give him a chance to cure. I agree that it may be a good idea for your friend to reach out to the other side. But I would strongly suggest that your friend talk to an attorney first, and have that attorney do the talking for him. It sounds like the other side is represented by counsel. Anything he says can and will be used against him in a court of law. Their attorney will be trained and experienced in getting him to confess to the infringements. It would be very dangerous for him to talk to them directly. You seem to be under the mistaken impression that people and companies have to play nice. I wish that were true, but it is not and they rarely do play nice or fair.

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  • Do I need a lawyer if a website used my photo to promote their site without my consent?

    A family member of mine informed me that she had received an email promoting a certain website with a picture of mine. I had no prior knowledge of my photo being used on this website nor did I ever give my consent. It seems as though this website ...

    Gary’s Answer

    Situations like this are very fact dependant. You may have a claim against them under several theories, including violation of your right of publicity, unfair competition/trademark infringement, and copyright infringement. Whether you need to see an attorney depends upon what you want to do next. If you just want them to take the picture down, you may want to contact them directly. On the other hand, a letter from an attorney is often more effective. If you want compensation then you probably do need an attorney, although it is possible that an attorney would cost you more than you would recover from the website. I wonder if there is more to this story, because you have not explained why they choose your picture instead of someone else’s.

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  • We are being bought out of the family cabin agreed on a price with down payment and 4 payments after that contract coming up

    any specific things we need in the contract besides dates of payment

    Gary’s Answer

    Are you crazy? Do you walk across the street without looking first? Do you try to do your own heart surgery? Why would you sell your cabin without consulting an attorney first?

    I am not after your money. I am not a real estate attorney. I am not suggesting that you call me.

    So much of law is common sense. If you use common sense you can stay out of legal trouble. Many times when people get in legal trouble it is because they were greedy and failed to use common sense. Please use common sense.

    You are selling a piece of real property, no doubt for a reasonable sum of money. That is a complicated transaction There are so many things that can go wrong with that transaction. You might not get your money. Worse, you might get sued if the buyer does not like the property.

    You can greatly reduce your risk by spending a few hundred dollars on an attorney now before you complete the sale. It will be worth it.

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  • Do music publishers make money from every track on an album?

    Is it all tracks or just the singles that are released?

    Gary’s Answer

    That is a very broad question.

    For every record (in any format) that is released there must be a license payment to the owner of the publishing rights in each song. There is a mandatory license fee in the copyright law, although parties are free to make their own arrangements instead.

    There is usually but not always a payment to the artist who recorded the song. There is sometimes a payment to the producer of the record. There are occasionally other payment arrangements as well.

    When the song is performed live in front of an audience or broadcast on TV, radio or the Internet, there is a licensing fee that needs to be paid to the owner of the publishing rights. In the United States, most publishers are represented by one of three organization for purposes of collecting theses fees. The organizations are ASCAP, BMI and SESAC.

    Does that answer your question?

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  • A competitor is "stealing" credit, and my pictures, for my lighting designs. He claims that they are "HIS" but cannot supply.

    I have spent dozens of hours to design several lighting products. I am not a large manufacturer and do these one at a time. I made the molds, I cast the metal, I do it all. I put these new designs on my web site with pictures. A competitor the...

    Gary’s Answer

    You may have a claim for copyright infringement and/or unfair competition. You may want to check out my article “Legal Issues for Online Sellers” available for free download at http://www.marshallcomputer.com/resources.html.

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  • My ex & me made porn video. She really enjoyed and have been watching them. I've posted them on web is it illegal. They were min

    She was particularly posing for the video

    Gary’s Answer

    The fact that you own the physical copy of the video does not by itself give you any rights. The answer to your question depends on the facts of the case. What was the agreement between the two of you regarding the use of the video? Did she explicitly give you permission to show it to others? Usually in the case of private sex videos there is an implied understanding that the video will stay private. Given the sensitive nature of the tape, you will find that judges will tend to side with her if there is any ambiguity.

    As to whether it is illegal? There are two aspects to that. One, can she sue you for damages? Unless you can show you had her permission to post the video, she probably can. Two, have you committed a crime? There are several anti-harassment statutes in Washington, including ones that deal with Internet based harassment. Did you set out to harass her? If so, then yes you may be guilty of a crime.

    As a practical matter, why would you want to post the video without her permission? You know that makes you look like a scumbag. Is that how you want other people, especially women, to think of you?

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  • Is it a violation of privacy laws if a supervisor posts in a public place production statistics with the employee full names?

    The production statistics used to be posted with color codes and each employee was told their "color". This process kept each employee's statistics confidential. Now he posts them in a hallway with the names on them where anyone outside our imme...

    Gary’s Answer

    No, you have no reasonable expectation of privacy about your work performance. I can not think of any other legal principle that it violates either. It may sound harsh, but you are free to quit if you do not like the new policy.

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  • Can i trademark or copyright the name of a sauce i have developed and plan on bringing onto the market?

    i have a sauce name that i would like to have copyrighted also the recipe is that possible?

    Gary’s Answer

    You can not claim copyright protection for names. You may be able to obtain trademark protection. Recipes are hard to protect. You can not copyright the underlying concepts and ideas, but you can protect your creative expression, which is the way you describe the recipe. That is a difficult line to draw, even for experienced attorneys. If you want to pursue this further you need to talk to an attorney.

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  • Is it illegal in the State of Washington to Blackmail a person?

    If it is a crime how do I prove it and what is the punishment for it?

    Gary’s Answer

    In Washington it is illegal knowingly to obtain or attempt to obtain by threat property or services of the owner. See RCW 9A.56.110. Extortion and blackmail are closely related topics. There is no clear definition of the difference, but a common distinction made is that blackmail is a form of extortion that threatens to reveal embarrassing, disgraceful or damaging information about a person to the public, family, spouse or associates unless money is paid to purchase silence.

    RCW 9A.56.120 Extortion in the first degree.-
    (1) A person is guilty of extortion in the first degree if he or she commits extortion by means of a threat as defined in RCW 9A.04.110(27) (a), (b), or (c).
    (2) Extortion in the first degree is a class B felony.

    RCW 9A.56.130 Extortion in the second degree.-
    (1) A person is guilty of extortion in the second degree if he or she commits extortion by means of a wrongful threat as defined in *RCW 9A.04.110(25) (d) through (j)
    (2) In any prosecution under this section based on a threat to accuse any person of a crime or cause criminal charges to be instituted against any person, it is a defense that the actor reasonably believed the threatened criminal charge to be true and that his or her sole purpose was to compel or induce the person threatened to take reasonable action to make good the wrong which was the subject of such threatened criminal charge.
    (3) Extortion in the second degree is a class C felony.

    You do not prove a criminal case, the government does. The more information you can give the government prosecutor, the more likely it is that they will take your case and will win your case. You should talk to a criminal attorney for more specific advice, or the local police or the local prosecutor’s office to determine what is specifically needed in your case.

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