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Daniel Nathan Ballard

Daniel Ballard’s Answers

8,711 total


  • Can I use name brand candy/toys to make and sell gift baskets?

    I would love to be able to make and sell candy boquets and gift baskets. I would also like to be able to assemble party favor type gifts with copyrighted characters. My question is if I can use name brand items to make a gift basket/favor bag. I w...

    Daniel’s Answer

    Your question has been asked many times before. You should read them and the answers via the link below. There will be more information there than can ever be provided in response to your one question. Feel free to post any general, follow-up questions not specific to your particular situation. Good luck.
    http://www.google.com/#q=site:avvo.com%2Flegal-answers+ballard+package+brand+products+together

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  • Legal term for the opposite of eminent domain

    I am aware of what eminent domain/appropriation is. When the opposite (private land becomes public land), what is the legal term used? In terms of land, "public domain" might be applicable.

    Daniel’s Answer

    Eminent domain is the process by which a government appropriates private real property for public use.

    The process of converting government-owned real property into private real property is called a sale.

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  • As an artist I produce wrote and performed my own album. Do I copyright as all three.

    I am an artist indie who just release new music. Want advise on protecting my music writing and sound. What papers should be in order. Thanks

    Daniel’s Answer

    If you want to make a business out of making music then you need to learn the music business. So buy two or three or ten books on the subject [ http://goo.gl/JdrCNq and http://goo.gl/a8iCfi ]. And sit in on some seminars [ http://www.artsandbusinessphila.org/pvla ] and maybe join a local musician’s meetup group for support [ http://www.google.com/#q=philadelphia+meetup+musicians ]. And, of course, speak with your own Pennsylvania-licensed entertainment or intellectual property attorney. Good luck.

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  • Can I use an existing product (rolling paper) in the creation of a new product (modified rolling paper) ?

    I take a pre- existing , branded rolling paper, I crease it, seal the edges, and package it under my product brand name, "Pocket Wraps". I reference the superior quality of the paper , but not the brand name.

    Daniel’s Answer

    I think the answer depends on the characteristics of the already-branded rolling paper. Some are flavored, some display the manufacturer's logo right on the paper, some are a unique size, some are made with unique material. Visit the link below. All of which is to say that consumers of rolling paper may associate a particular paper with a particular manufacturer. If you fold any such recognizable paper as you describe and then sell it under your own brand that's unlawful "reverse passing off." Especially if you "reference the superior quality of the paper" as its manufacturer does.

    In any event, your business model makes little sense. You would need to buy the already-branded rolling paper at retail, add your labor and repackaging and marketing and distribution costs, and then sell the very same paper but folded at a dramatically higher price than the originally-branded, unfolded paper. Who would buy your [unknown] brand?

    You should track down the companies that actually manufacturer rolling paper, tell them what you want, and buy that paper at wholesale. You can brand that product however you want -- with help, of course, from your own Michigan-licensed intellectual property attorney. Good luck.

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  • Is it legal to watch movies online for free?

    Hi! So Im a type of person that is really scared of consequences of the internet. I am very paranoid most of the time. I wanted to ask something about movies. Is it legal to watch them online for free? I have fios internet and live in America. So,...

    Daniel’s Answer

    Watching a movie streamed over the web is not unlawful. You can read why via the links below.
    http://www.google.com/#q=site:avvo.com%2Flegal-answers+ballard+stream+buffer
    http://www.google.com/search?q=site%3Aavvo.com+ballard+streaming+copyright

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  • My book publisher and I are having problems. If I cancel the contract she says she will retain the rights to the "book files".

    We signed a contract in April of 2015. She did not publish my book until November of 2015. The contract says she will pay me every six months, beginning in April of 2016. She has not paid me and will not tell me how many copies of the book have so...

    Daniel’s Answer

    She may mean she won't return the files that code for the book in its printable form. Those files often take a long time, and are expensive, to create. As my colleague notes, you need to discuss this matter in private with your own Tennesse-licensed entertainment or intellectual property attorney. Good luck.

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  • How do I know if a non compete agreement applies to me?

    From what I have learned, a non compete agreement is enforceable only if the following applies to you. 1. Trade secrets 2. Confidential information 3. Relationship with customers 4. Copyright/Trademark 5. Specialized training I work ...

    Daniel’s Answer

    If you signed an employment agreement that contained a non-compete provision or signed a stand-alone non-compete agreement then the terms of that provision or agreement would apply to you.

    If you didn't sign either then you're not bound by any non-compete terms -- other than those express or implied in law [which are common in state labor code provisions and the common law].

    Speak with your own Texas-licensed employment or intellectual property attorney about what you may and may not lawfully do in the labor force once you leave your current employer. Good luck.

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  • Copyright/privately owned website.

    Hi. I own a privately established distribution which only sells to customers as a private domain. No one publicly can access this distribution as it's made for the already listed consumers. As this page is private in addition we're aware th...

    Daniel’s Answer

    Password protected, customer-only portions of websites are NOT "private." Those customers are people and companies who participate in the marketplace. They're literally members of the public. Granted, the universe of those customers is pre-screened and limited but ... so what? They're not you or your company or a related company or anyone who you can control. Your customer-only portion of your website is not "private." It's merely access limited.

    Can you, without permission, lawfully display other companies' logo trademarks on that portion of your website? Probably not. But many consumer product companies freely grant permission and publish "brand identity" guidelines that describe the proper way to display their logo trademarks. You and your own New York-licensed intellectual property attorney need to work through this matter in private. Good luck.

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  • What are the requirements or liabilities related to copyright and customer provided images for printing.

    We are new laser engraving company and are looking for some clarification in relation to images provided by a customer. If we are approached by a customer and they want an image printed onto a product what are our obligations to make sure that we ...

    Daniel’s Answer

    The risk of being sued for copyright or trademark infringement has long been inherent in the printing business -- especially the latter when the printer affixes designs or slogans onto products. In short, copyright infringement is not your only -- or indeed most pressing -- concern: That would be trademark infringement.

    The law has responded to this risk by creating an "innocent infringer" defense to both types of infringement claims. See 17 U.S.C. §504(c)(2) and 15 U.S.C. §1114(2)(A). While even innocent infringers are strictly liable for their infringement, the law sets the monetary penalty low [$200 for copyright infringement] or does away with it altogether [for printers who commit trademark infringement].

    The burden is on the printer to prove its innocence. The standard is typically whether the printer "knew or should have known" that his conduct was infringing. If yes, then the conduct was not innocent and the printer is liable for all consequential damages and profits. In fact, if the rights owner proves the infringement was "willful" -- and certain other criteria are met -- the infringement can also violate the copyright and trademark criminal counterfeiting statutes. Printers are, of course, well situated to participate in the very profitable counterfeiting industry.

    As my colleagues note, you and your own Maryland-licensed intellectual property attorney need to create a "standard operating procedure" to proactively screen out infringing designs and slogans from coming into your shop. Remember, the standard is "knew OR should have known." Those proactive procedures will include "reverse image searches," searches of the online copyright and trademark registration databases, educational signs about infringement in your brick and mortar shop, training employees on infringement, audit procedures to ensure the SOP is actually being followed, and anything else your own attorney thinks is wise. As well as, of course, a properly worded agreement with your clients and an insurance policy that covers your company for copyright and trademark infringement claims. Good luck.

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  • How do stop a former employer from using my copyrighted material (or make them pay me to use it)?

    I worked in a clinical "lab"; I put lab in quotes because the place is a joke, designed solely to milk insurance companies for reimbursements. I re-designed all of their test reports with the help of a freelancer in Poland who I paid through Upwor...

    Daniel’s Answer

    I think it's more useful to sidestep the issue of who owns the copyright [if any] in the test reports by simply assuming you do and, instead, focus on whether you can revoke the license you most assuredly granted your former employer allowing it to use the reports.

    The rule for this situation is that an implied copyright license cannot be revoked if the licensor [you] received something of value in return from the licensee [your former employer].

    If so, your former employer has the right to continue to use the reports over your objection. Note: The something of value may be as simple as your continued employment after you turned the test reports over to the company's management. Or maybe something more is needed.

    If you didn't recieve anyhing in return, then, and only then, is it necessary to wade through the facts to determine if you and you alone own the copyrights in the reports. IF so, you may be able to properly revoke the license.

    You need to discuss this with your own Georgia-licensed intellectual property attorney. Good luck.

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