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Gary K. Marshall

Gary Marshall’s Answers

107 total

  • Is it illegal to film a conversation in a public space without the other person's consent and awareness?

    Is it illegal to film a conversation in a public space without the other person's consent and awareness?

    Gary’s 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 usually 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 (in Washington RCW 9A.44.115, on federal land 18 USC 1801). And there can be restrictions on how the recording is used. Defamation, invasion of privacy, false light, copyright, trademark, right of publicity and many other areas of law may come in to play.

    So it depends.

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  • How much do you have to modify a photo that is "All rights reserved" in order not to be infringing on their copyright?

    I am in a class here at WSU where while we would normally be protected by the education clause, we were asked by our instructor to refrain from using pictures, sound files, etc that would otherwise get you sued for infringement if used professiona...

    Gary’s Answer

    First of all, the words “All Rights Reserved” are not part of the U.S. copyright law. They are part of an international convention, usually referred to as the U.C.C. That convention has largely been replaced by the Berne Convention. I will presume you mean that the works have a copyright notice on them. Please keep in mind that the copyright notice is not required. You should assume that any work you find on the Internet is protected by copyright law unless you know for certain otherwise.

    You mention the “education clause” There is no sweeping exception from copyright infringement for educators. There are some favorable rules for educators, but they are generally pretty minor.

    How much do you need to change a work to avoid infringement? There is no clear line, but basically you need to change it 100%. That is, you need to come up with your own works, rather than taking creative expression from others. Keep in mind that ideas are not protected by copyright law. Generally, you can use an idea you see in a work as long as you then provide your own creative expression. But see below, there are exceptions.

    I tell my clients that as a rule of thumb you should ask someone to look at your work and at the original work. If that person thinks you based your work on their work, you probably committed copyright infringement.

    There is a concept called fair use that will allow some copying. It is a complex area of copyright law. Any discussion of fair use goes way beyond what can be said on AVVO.

    Copyright law is very complex. There are many rules, and there are many exceptions. As you will read over and over on AVVO, you really need to talk to an attorney in person about your specific situation in order to get an accurate answer.

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  • The CR55 law for default and judgment says you must give five days notice before the hearing... do the 5 days include weekends

    when you count it out? Also when you have to file an opposition to a motion 11 days before a hearing does that also include weekends - if it doesn't than why don't they write in the law "court days" which would more obviously imply not to count we...

    Gary’s Answer

    I am sure you have heard attorneys say that you really should not handle a lawsuit without an attorney. Litigation is very complex for a number of reasons. This is one example. You can not read one court rule all by itself and presume to know what it means. You need to know all of the state court rules, and all of the local rules in order to correctly interpret each rule. As a litigator, I have read all of those rules many times, and am constantly reviewing them. I have years of experience using them.

    In your case, most courts have separate rules that deal with your issue. You do not say what court you are in. If you are in King County Superior Court, you need to look at state rule CR 6(a) which says that

    In computing any period of time prescribed or allowed by these rules, by the local rules of any superior court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

    Good luck.

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  • I would like to know the exact day and time my Opposition to Summary Judgment is due?

    The defendant filed a Summary Judgment against me on July 30, 2015 and the hearing is on August 28, 2015 at 2:00 pm at Superior Court of Washington County of Snohomish.

    Gary’s Answer

    First look at the Washington state court rules of civil procedure. They will tell you the timeline in general. Then look at the local rules of civil procedure for Snohomish County Superior Court to see if there are any rules specific to Snohomish county that override the state rules. Then look at a calendar and calculate the exact date. Keep in mind that both the state rules and the local rules have rules on which days to count (weekends?, holidays?, etc.). All civil rules are on-line these days.

    And make sure to look at all of the rules. In each set of rules, there is a section on summary judgment and then there is a different section on motions, and there may be other sections that apply as well.

    Does that sound complicated? Well it is. When I was starting out as an attorney I was constantly reading and re-reading the rules. I still spend a lot of my time reading and trying to interpret the civil rules.

    Maybe an attorney will do the calculations for you this time. This is a good example of why litigation is not easy and whenever possible, you should hire an attorney.

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  • How do I go about getting a license to sell metal designs we have created with a nfl logo?

    We have a small home metal design business. We would love to sell some designs at craft fairs, but want to get permission first rather than a cease and desist letter! Where do I start?

    Gary’s Answer

    Basically you don’t. The NFL is very aggressive at policing the use of their marks. So I would not recommend you use them without permission. Getting permission will be impossible.

    The NFL has a merchandise licensing application on line. Feel free to check it out. I have not read it in a while, but it says something like you have to have had at least a million dollars in licensing sales in the last year, or they will not talk to you. And that makes sense. They are a multi-billion dollar industry. Their trademarks are very valuable to them. It would take them many hours to evaluate who you are, what the deal might be, and whether your use is safe in that their trademarks are protected. That all costs them a lot of money. There is a risk to them whenever they deal with a new company. They would not possible make a profit on a small deal such as the one you are talking about. Sorry. Perhaps you could start with a smaller business.

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  • I have naked pictures of me from when I was 17 on my public blog. Someone sent a link to them to my parents. Is this legal?

    I took the photos myself and uploaded them online but still I was underage in the photos. Isn't that publishing/ distributing child pornography? Do I have grounds to sue?

    Gary’s Answer

    You raise several issues.

    Most important is the issue of child pornography. Many people think that any nude picture of a minor is child pornography. That is not true. The picture has to be intended to have some sexual component. Amazon openly sells many books that contain nude but not sexual pictures of minors.

    In Washington the term that is used is to define child pornography is “depictions of a minor engaged in sexually explicit conduct” (RCW 9.68A.). The federal definition is similar (18 USCA 2256). There may be other broader definitions out there. So whether your pictures are child pornography depends on what is in the pictures themselves and how they are perceived.

    However that is very fine point. As I said, many people, including many prosecutors, will be offended by any nude pictures of a minor. You risk being charged with a crime simply for posting a nude picture, even of yourself. A judge or jury may also be offended and find you guilty. You also risk being turned down for jobs, now or at any point in the future. I strongly advise you to take down those photographs.

    Normally, sending a link to a blog to a third party is fine. If the link is to child pornography, then yes this might be seen as distributing or promoting child pornography. But sending a link to your parents is likely to be interpreted as being harmless.

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  • I was looking a porn and it's claiming I was watching child porn. It saya I need a PayPal card to pay $250. It won't go awaway.

    It won't let me access the Internet and won't go away. Whathe do I do?

    Gary’s Answer

    This is a pretty serious scam. If often sounds like a real government agency is after you. Sometimes they have your picture which they probably got off of your webcam. Do try to remove it yourself, but my experience with clients has been that you have to pay someone to remove it. There are many computer repair companies who offer virus removal services. They see it all the time. I don't know anyone who has paid the scammer, but in online discussions it appears that if you pay them, nothing happens. They do not remove the virus.

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  • What kind of lawyer do I need? Read details below. Bottom line is I don't want to be sued. Who should I talk too?

    I am writing a "fiction" novel. For 6 years I worked in a very hostile work environment - a tribal owned casino. In the novel I want to use my work experiences, naming names of people who harassed me without end which lead to wrongful terminatio...

    Gary’s Answer

    You should not rely on your publisher. You need to talk to a literary attorney such as myself now while you are writing the book. There is no way you can eliminate the risk of being sued. You can reduce the risk if you want to, but you might ruin the impact of the book if you are too cautious.

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  • Are there any attorneys or paralegals willing to assist in preparing documents or at least a conversation for civil small claims

    Trying to take a business to small claims and have no idea what I am doing and would like some help but don't know where to look. I can definitely pay for the time. Anybody know where I can look?

    Gary’s Answer

    • Selected as best answer

    There are some good resources available online.

    1. Everybody's Guide to Small Claims Court, Includes tips by former judges!, by Ralph Warner, Attorney, March 2012, 14th, Edition,

    2. An Introduction to Small Claims Court, by the Washington Courts,

    3. Small Claims Court in Washington State, August 2011, by Northwest Justice Project

    4. King County Small Claims Court website

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  • My question is regards to spam email.

    I am a principal at an Internet company in WA state. My question is in regards to WA state law regarding spam as compared to the federal CAN SPAM act. Which law would take precedence? The SPAM condition is very bad and it is costing a great de...

    Gary’s Answer

    The question of whether the state CAN-SPAM act is pre-empted by federal law is a complicated legal issue. There is no clear answer yet. Three federal courts have held that pre-emption applies, at least in part. The federal ninth circuit has ruled that one provision of the Washington law is pre-empted by federal law. See Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 2009). Whether other provisions are pre-empted is not clear. The court in Gordon invited the state of Washington to amend its statute to conform to federal law which suggests that there is no blanket pre-emption.

    I have defended a CAN-SPAM case. They are hard to win. The plaintiff settled with a few defendants, but was eventually forced to dismiss its claims. If you do decide to sue, be prepared for an expensive fight.

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