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Emily Bass

Emily Bass’s Answers

261 total

  • An international channel aired the footage of a high profile interview I did with no final agreement on compensation, credits

    While parts of the interviews had been aired in print and on some channels - which clearly established my ownership(I have the original tape at my office and invoices of the shoot), I did I did not register the footage to the (c) office in DC. Cor...

    Emily’s Answer

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    Since you refer to this as a "high profile interview," it is not unlikely that the interview is going to be re-aired or rebroadcast by others. If in fact you own the copyright, therefore, it would be in your interests to register it with the United States Copyright Office whether or not you proceed against the channel or channels that already aired the interview without your permission.

    I make this suggestion because, presuming you are entitled to register, it would enable you to seek "statutory damages" and attorneys fees in the event of a FUTURE infringement - i.e., one that commenced after the effective date of the registration. Statutory damages of up to $ 30,000 can be awarded for a single infringement; up to $ 150,000 in the event of a willful infringement. Actual damages, on the other hand - which are awarded in cases in which the infringement commenced prior to registration - are generally much more modest. Sometimes, they are nominal.

    Rather than proceed on your own, however, I agree with my colleagues that you need to retain copyright counsel to review the facts and circumstances. Counsel can help you effect the registration and decide whether a claim or demand letter is warranted.

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

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  • What is the AVERAGE cost to litigate a patent or copyright infringement case, for a small entity?


    Emily’s Answer

    It is really difficult to talk in generalities about fees and costs. In the past, several small companies have come to me with patent infringement claims because they've been told that, at a minimum, it costs a million dollars to litigate a patent infringement case. I did it for considerably less, but cannot tell you how much it MIGHT cost in a different case. I would need to know basic facts to be able to give you a ballpark estimate, and that's all it would be - an estimate..

    Copyright cases, while they can also be expensive, are in an entirely different ballpark. That is for several reasons. Where a claim is one that is worth litigating (e.g., where a work was registered with the Copyright Office in a timely fashion) and is well documented, it often settles fairly early on in the case. Indeed, I have even had some success with a well-drafted demand letter where the claim is very, very well supported. In such a case, the fees and expenses are modest.

    If you are serious about protecting your IP (whether it be copyrights, trademarks and/or patents), you should budget a certain amount for an initial consultation or two to see whether you can afford full-fledged representation or whether there is a less-expensive alternative.

    You should not attempt to represent yourself, in my view. You need legal representation in these matters.

    Disclaimer: This answer is for general informational purposes only. It does not itself constitute legal advice.

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  • Can photos obtained in a business with a model release be used for another similar type business?

    At one time we operated a business that due to the type of service provided , obtained in writing, positive testimonials and photos of those who participated.. A release was signed for use of these at the time obtained. We now operate a similar, b...

    Emily’s Answer

    It will depend entirely, in my view, on the scope and wording of the release. If it states that the photo and material to which the release relates can be used by your Company for ANY AND ALL purposes, then presumably it can be used for purposes other than those originally intended. On the other hand, if limitations were placed on the uses to which the photos and materials could be put or a time limit placed on their use, then those limitations must be honored. If they AREN'T honored, then your Company may well find itself facing breach of contract claims, as well as allegations that your Company has violated the model's "privacy" and/or "publicity rights."

    The fact that there was no "consideration" paid for the release - i.e., no money given - is not a fact in my view that helps you. While it might be used by the releasee to claim that the release has no validity in any event, that would only mean even your original use of the photo and materials was improper. [Note: Most states provide that a contract will be deemed valid even where there is no consideration where consent has been given in writing. So the issue of "consideration" is probably of no relevance here.]

    You should consult an IP or entertainment attorney in your state who is familiar with its "privacy" and "publicity laws," and its requirement that certain agreements be in writing. (The latter is referred to as the "statute of frauds."). These laws vary from state to state.

    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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  • What actions can be made if someone copyrighted something that belonged to you?

    someone copyrighted my pictures without telling me. they created a website, and now all the pictures i had taken are used on the website.

    Emily’s Answer

    There are four different concepts at play here:

    1. "Copyright": Copyright attaches automatically upon the creation of a work and its fixation in a tangible medium. You don't need to place a copyright symbol on the work you create or register it with the United States Copyright Office, for the work to be protected by copyright. So, just as soon as you took your photographs, you had a valid copyright in them.

    2. "Copyright Symbol or Legend": It used to be the case that a copyright symbol (c) had to be placed on a work for it to be protected by copyright. That has not been true since January 1, 1978. While it is still advisable for a copyright legend (symbol plus name of copyright owner and year) to be placed on a work, it is not legally required for basic protection. It is still useful because it gives the world notice of the fact that a work is protected by copyright and that the owner is aware of his or her rights and will enforce them.

    3. "Registration of Copyright": Again, while you protected by "copyright" without registering your work with the United States Copyright Office, it is still advisable to register. Why? Because it affords you certain advantages. It enables you to bring suit if someone infringes your rights and, if you register before the infringement commences, you may be entitled to enhanced damages and attorneys' fees. The enhanced damages are referred to as "statutory damages" and generally run betwwen $ 750 per work that has been infringed to $ 30,000. If an infringement is proved to have been willful, you might get up to $ 150,000 in damages. Actual damages (that are applicable if you DIDN'T register your work or didn't register before the infringement commenced) are generally a fraction of those amounts.

    4. "Infringement": When - without the permission of the copyright owner - someone exercises one of the six "rights" that make up a "copyright," they "infringe" the copyright owner's rights. In the matter that you have very, very briefly described, it would appear that the other person may have violated or infringed two aspects of your copyright. They improperly "copied" your work, without your authorization, and they may have made an unauthorized derivative work. [You haven't given us enough information in the latter regard to enable anyone to tell for sure.]

    It could also be that the other person deleted digital rights management information from your photos or added false information prior to posting the photos on the web site.

    You should retain a copyright litigator to pursue the matter for you if you are serious about protecting your rights.

    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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  • My photos were printed in a magazine without my knowing and photo credit was claimed by another photographer! What can I do?

    Do I have a case?

    Emily’s Answer

    You may in fact have a valid claim not only against the other photographer or person who claimed photo credit, but also against the magazine that included the image in their "collective work' without the consent or permission of the true copyright owner.

    You really should consult a copyright attorney regarding this matter rather than attempt to pursue it on your own.

    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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  • Work is denying FMLA leave for my child that is about to be born because my girlfriend and i are not married

    work is claiming state law says that i have to have a test to establish paternity

    Emily’s Answer

    29 C.F.R. § 825.120 provides that "[b]oth the mother and father are entitled to FMLA leave for the birth of their child" under the Family and Medical Leave Act.

    As I understand what you are saying, the Employer is NOT denying you leave. It is saying that you will be afforded leave provided that you prove you meet the criteria for it - i.e., you prove paternity.
    In other words, it is simply demanding that you prove your eligiblity for the leave. That is not, in my view, a violation of the FMLA per se.

    However, there is a separate question in my view of whether the employer is violating state anti-discrimination laws if it only imposes that requirement on UNMARRIED male employees, but NOT on married employees. Such differential treatment might be unlawful, in my view, since Section 296 (1) of the Human Rights Law of the State of New York [which is found in the Title entitled "Executive Law"] provides:

    1. It shall be an unlawful discriminatory practice:

    (a) For an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, MARITAL STATUS, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

    If you believe that your employer is only requiring such proof of unmarried employees, you might considering retaining an employment lawyer in your state to review the matter more closely.

    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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  • Seeking clarification on FMLA section 108(d)(1)

    My wife, who is a teacher, will be taking FMLA maternity leave starting on Feb. 14, 2011 or thereabouts. The school district for which we work has put her on notice that if she does not return to work on or before April 12, 2011 (the start of the ...

    Emily’s Answer

    The Code of Federal Regulations ("C.F.R.") contains the regulations that are applicable under the FMLA.

    29 C.F.R. § 825.602, which contains special rules that are applicable to school or instructional employees. It sounds to me as though subparagraph (a) of that Section just MIGHT apply to your wife's situation and, in combination with 29 C.F.R. § 825.200 (h), justify the employer's actions.

    Under that § 825.602 (a), where an instructional employee begins leave more than five weeks before the end of a term, "[t]he employer may require the employee to continue taking leave until the end of the term if " the following two conditions are met:

    (i) The leave will last at least three weeks, and
    (ii) The employee would return to work during the three-week period before the end of the term.

    It sounds to me (without doing the math carefully) as though those temporal requirements may be met in this case. If you review the calendar carefully and conclude that the School is in error, you should consult an employment lawyer in your state to represent you in the matter.

    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 terminated for use, one FMLA for my husband he has heart cond.Been working there 10yr.That was my 2ND home, very hurT


    Emily’s Answer

    You should consult an employment attorney in your state ASAP to protect your rights. I say "ASAP," because if you are in a unionized workplace, you may need to file a grievance in short order to preserve your claims. Indeed, if you are in a unionized workplace, you should contact your union and ask it to help you formulate and file a grievance.

    If you are NOT in an unionized workplace, you may nonetheless have a claim against the Employer for either "denying" you FMLA leave or "interfering" with your exercise of your rights under the FMLA. (Indeed, you may have claims under state as well as federal law.) You have provided too little information for anyone to be able to ascertain whether or not you have valid claims.

    One thing that you should remember for the future is: that it is important to have written proof of what you have said to the employer. It is best to fax a note to the Employer, confirming what was said on the telephone or, at the very least, have someone who is not a member of the family present so that they can subsequently attest to what you said on the telephone.
    Good luck.

    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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  • What Happens To Ownership Titles Of Auctioned Off Stolen Artwork?

    On a whim i won a piece of artwork at an auction that was by a famous artist for not much money. No one else thought it was genuine, but I took a gamble on it. It turns out after I paid for authentication, it is in fact genuine and worth a fortun...

    Emily’s Answer

    I would be more pro-active than my colleagues. After all, if you are planning on realizing the value of the work - and making representations as to its authenticity and your title - you will need to do “due diligence.” In my view, that in turn means you should retain an attorney to figure out several things:

    First of all, to determine what laws apply. (Depending upon the nationality of the artist and the history and chain of custody of the artwork, a foreign nation’s laws might apply under a "conflicts of laws" analysis.) A convention or treaty might also apply or the National Stolen Property Act be implicated.

    Second, to determine the claims that might be asserted (e.g., replevin, trover, etc.), and who might assert them. (In this connection, it is important not simply to record your own purchase of the work, but to find out as much as possible about its provenance and how it came to be on the auction floor.)

    Third, to determine the statutes of limitations that apply and whether they have been triggered or lapsed.

    Fourth, to determine what YOUR rights, defenses and/or remedies are in the matter. From the little you've said, it sounds to me as though you just MIGHT qualify for treatment as a "BFP" or "bona fide purchaser for value without notice." Assuming that is a possibility, you may be well advised to RECORD your title in order to fully secure your interests.

    So, no, were it me, I would not just sit back and wait to see whether anyone shows up to contest your title. This is especially so since, ordinarily, statutes of limitations on claims of this kind do not even BEGIN to run until a demand has been made for the return of the work and the demand has been refused. In my view, you should retain a lawyer who is knowledgeable in the fields of international law, commercial and contracts law, conflicts of law, preemption, and civil procedure. (A conflicts analysis will more than likely be involved whether or not foreign laws are implicated.) If you are interested in discussing this matter with me further, I can be contacted through Avvo - via email, in the first instance.

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  • As a guradian of a preemie baby, am I entitled to FMLA?

    I am being appointed guardian to a baby that is about to be born 6 weeks premature. I want to take FMLA for his birth and a few follow up appointments. The baby will be coming home from the hospital to my home and I need to know that the NICU do...

    Emily’s Answer

    It seems to me that the Regulations that govern the situation are probably 29 C.F.R. 825.812 and 825.121. [CFR stands for the Code of Federal Regulations, which includes the regulations that are applicable under the Family and Medical Leave Act.]

    The first regulation provides that "[e]mployers covered by FMLA are required to grant leave to eligible employees:

    (1) For birth of a son or daughter, and to care for the newborn child; [or]

    (2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121).

    While the first subparagraph doesn't apply (because the child is not your "son" or "daughter", the second subparagraph MIGHT apply in these circumstances. (It is not clear to me, when you say you are being "appointed guardian," whether that would qualify as "foster care" within the meaning of the Regulations.)

    If your appointment would qualify as a "foster care" arrangement, then Section 825.121 makes it clear that "[e]mployees may take FMLA leave before the actual placement ... of a child if an absence from work is required for the placement for adoption or foster care to proceed." The Regulation goes on to say:

    "For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption. . . . Under this section, the employee is entitled to FMLA leave even if the adopted or foster child does not have a serious health condition."

    Subsection (4) provides that FMLA leave is also available "in order to care for an adopted or foster child with a serious health condition IF the requirements of §§825.113 through 825.115 and 825.122(c) are met."

    You should consult an employment attorney in your state to ascertain whether any of these Regulations afford you any rights in the circumstances and/or whether there are any additional laws in effect in your state that might afford you further protections. Good luck.

    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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