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Legal news and small business tips.

Can a landlord harass me after they served me with a 30-day eviction notice?

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Joe EscalanteOn eviction…can the landlord harass you after being served a 30-day notice (without any reason on notice)?

Victoria Hamel

Barely Legal Radio w/ Joe Escalante

Well, no one has a right to harass anyone. However, if you’re on a month to month lease, your landlord can give you 30-day notice without any reason. And you can give 30-day notice to leave for any reason. That’s the deal. If you don’t leave after the 30 days, the landlord can proceed with an unlawful detainer action in court. This is a quick proceeding which is not fun to explain to your next potential landlord.

If you lose your unlawful detainer proceeding, the marshal comes and kicks you out, wearing a gun, so at that point you leave.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

March 25th, 2015 at 5:47 pm

Someone is using my name personal name for their business. What can I do?

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Joe EscalanteMr. Escalante, I am concerned about an issue I discovered on Facebook. There is someone on the East Coast who has begun using my name. I am Gabriel Wizard, which I’m sure you can understand is a unique name. Recently I became aware of a D.J. working out of New York who has started calling himself Gabriel Wizard. I have tried to contact him to ask him to stop using my name, but I have gotten no response. He has set up a web site; gabrielwizard.com, has a Twitter account, is on LinkedIn and Instagram. Using my name on all of them. What should I do?

Gabriel Wizard

Barely Legal Radio w/ Joe Escalante

Great question Gabriel. The problem here is that as long as we’re not trying to assume your specific identity to cause harm, we can all call ourselves “Gabriel Wizard,” even if that’s not our real name, and shockingly, even if we are not actually wizards. From his site, it appears that D.J. Gabriel Wizard is using that name as a service mark to identify and distinguish his services as a D.J. As long as he’s not infringing on your commercial business of being a D.J. prior to his entrance into the field, he’s on pretty solid legal ground. In fact, he could register his service mark under a category of a recording or performing “musician” and he could actually prevent you from using your name in that field. I could start a company today called “Gabriel Wizard’s Custom Wizard Sleeves” and prevent you from entering that field. Society does not have an interest in allowing one person named Gabriel Wizard in one part of the country to prevent everyone else in the country from starting a business using that name. Society only has an interest in things like preventing confusion in particular marketplaces and protecting established businesses. If D.J. Gabriel Wizard tries to identify himself with you in any way, that is a different story, but in the present situation, I can’t see anything that he’s doing at the moment that could be legally stopped, unless you are a D.J. too, and have been using your name in interstate commerce as such, before him. What he should be concerned about, however, are the pirating of derivative works that he’s pimping on his site like the one using Pharell’s hit song “Happy” that is likely unauthorized. But that’s another issue. Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

March 25th, 2015 at 5:40 pm

I intend to start an LLC. Will my home address be accessible to the public?

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Joe EscalanteHi, I’m in the state of New York. I intend to start an LLC. My concern is that my home address will be accessible to the public when someone looks up my business on the Department of State website. How can I go around this (since it’s mandatory that I include a physical address when registering my business)? I’m concerned about personal privacy. Thanks.

Khadine C.

Barely Legal Radio w/ Joe Escalante

This is why you get a registered agent for your LLC. New York doesn’t actually require an agent, but since you are concerned about privacy, a registered agent will go a long way to protect your personal privacy. Your physical address registered with the state will be the agent’s address, not your personal address. I can’t recommend this enough. Get a registered agent for your corp or llc.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

March 25th, 2015 at 5:25 pm

So Many Blurred Lines: Copyright Infringement or Time to Give it Up?

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Human emotion often overrides logic. And not much else moves us toward emotion like music. The love for and enjoyment of Marvin Gaye’s music spans two centuries and his tragic early death still lingers in our collective memory. The jury had a high bar to reach in trying to make a decision based solely on legal instruction and facts. Whether they accomplished their stated task seems to be in question by many.

For many of us, we were not in any way surprised by the Blurred Lines copyright ruling giving a win to the Gaye estate of nearly $7.4 million. The Blurred Lines song may have immediately brought to mind Marvin Gaye and his song “Got to Give it Up” when we first heard it. That was my first reaction. It feels very much the same.

However, as much as we may not want to believe it, sometimes our first reaction isn’t the correct one. Music copyright brings up many legal technicalities based on the law of copyright infringement. LegalZoom’s own musician attorney Joe Escalante thinks the jury failed with this song copyright case and discusses it in a recent interview on The Frame.

I had been following the trial and I thought, “Surely no jury could misunderstand this case.” But I think they got it wrong, and I was pretty shocked. I think it’s a disappointing verdict for all the artists in the world, except for the estate of Marvin Gaye. … [E]motionally, they might be thinking, Well, why not get some of this money and share it with Marvin Gaye’s estate? He’s a revered, classic artist, and these guys look like two drunk, drug-taking jokers.

Decisions requiring reasoned analysis, but wrapped up in so much feeling may be doomed from the start. An article in Rolling Stone quotes Pharrell saying, “Silk and rayon feel exactly the same but are completely different materials.”

Howard King, attorney for Robin Thicke and Pharrell Williams then went on to say, according to the article, that “[t]he owner of rayon better have his eyes turned toward the owner of silk because if this decision really stands, he’s going to get sued.”

A Vulture article gets to the meat of the issue and explains how copyright law must expand to understand how we “feel” music. Jeff Peretz, a professor at NYU’s Clive Davis School of Music was interviewed for the article.

A big idea of what “feel” is is based on the rhythm, and rhythm hasn’t been taken as seriously [in copyright law]. When we think of copyright infringement, we think of a melody being stolen. Chord progressions can’t be copyrighted because mathematically speaking, we’re going to use the same ones over and over again. … In the case of “Blurred Lines,” it’s the rhythmic pattern. The drum pattern is the same on both of these songs, as is the cowbell pattern, and that’s what determines the “vibe” that got Pharrell caught. We need to establish real, quantifiable mathematical language about what is vibe or feel. … We’ve got to get some language to determine where the [copyright infringement] line exists.

A recent TED Radio Hour called “Solve For X” examined the mathematical element of music. Percussionist Clayton Cameron said, “[n]ow, I can listen to Phil Collins, Max Roach. I can listen to Tony Williams—these are all drummers… Famous drummers… Elvin Jones and all these. And each of their styles of playing, they’re going to play different threes.”

Cameron then imitates the famous drum beats of “In The Air Tonight” by Phil Collins and “In The Mood” by Glen Miller saying, “all those things have the groupings of three. It’s—three is like a magic number. It’s like, I don’t know what the explanation is. Three just feels great.”

In another segment he talks about using cycles of numbers in music and doubles the tempo again and again, then explains how it’s the same pattern and ratio.

A cycle of five has a certain feel. A cycle of seven has a certain feel to it. … And certain numbers in music emote a certain feeling.

Based on what Peretz and Cameron are saying musically, it appears that the feel and sound of songs can remind us of others based on the mathematical patterns that are used repeatedly by songwriters and musicians.

In a Newsweek opinion piece, Boston University Law Professor Wendy Gordon wonders if the jury in the case was misled by being given bad instructions. She notes Instruction 43 and calls it “a confusing welter of legal jargon” that could have made the jury wrongly think they had to find that there was copyright infringement if two songs have the same feel.

Even though the jury has spoken, this matter is far from being over. There could be an appeal in the Blurred Lines copyright infringement case.

Further, Gaye’s estate may go after Pharrell again. A Billboard article states that Marvin Gaye’s daughter, Nona Gaye has given her opinion on a similarity between song turned international phenomenon “Happy” and her father’s 1965 hit song “Ain’t That Peculiar.” “I’m not going to lie. I do think they sound alike,” she says.

Written by Lisa C. Johnson, Esq.

March 20th, 2015 at 12:28 pm

Posted in Legal News

Taylor Swift Files to Trademark ‘This Sick Beat’ and Other Phrases from the Album, 1989

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Taylor Swift is serious about her money. When she refused to put her ‘1989’ album on Spotify and then pulled her old albums from the streaming service as well, the music industry and consumers took notice.

Swift, and presumably her legal and business team, are taking great care to further protect her intellectual property with recent applications to trademark several phrases from her album, including: ‘This Sick Beat,’ ‘Cause We Never Go Out Of Style,’ and ‘Party Like It’s 1989.’ One can’t help but wonder how Prince feels about the latter. But that’s another issue.

The United States Patent and Trademark Office (USPTO) is the federal office responsible for trademark registration. The website, USPTO.gov, provides information on how to register a trademark, how to trademark a phrase and how to conduct a trademark search.

Trademarks are more commonly known as brand names and help consumers “identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.” When a phrase suddenly becomes famous, it’s usually not too long before someone decides to put it on a t-shirt or mug and turn a quick profit. When someone decides to trademark a phrase formally with a registered trademark, they can prevent others from profiting from the phrase that they created and seek damages in court against the offending party if they try.

The database Justia.com lists the phrases that Swift’s team is attempting to trademark and the items that could be sold with the protected phrases. Sales could include items as diverse as ringtones, cell phone covers, lanyards, glasses, soap, nail polish, perfume, clothing and much more.

While Swift may not end up using all the phrases and may not sell all the items that are listed for possible sale, she at least can keep others from using phrases from her songs to make money without her permission. That is something that the author Harper Lee learned the hard way. She did not intend to make money by selling merchandise based on her novel, To Kill a Mockingbird. However, someone else did. Lee had to go through a great deal of effort to get her trademarks in order to stop the sale of a variety of goods that she did not authorize.

Because Swift is in the spotlight, many will try to capitalize on any affiliation with her. Apparently even an alleged former guitar teacher. A recent TIME article states that Ronnie Cremer’s website Itaughttaylorswift.com has caught the ire of Swift’s legal team. He has been told that the site violates her trademark, her name, and needs to be shut down. Time will tell whether Swift’s team decides to just shake it off or if this teacher learns a tough lesson from a student.

Written by Lisa C. Johnson, Esq.

February 13th, 2015 at 2:01 pm

Posted in Legal News

My Neighbors Start Band Practice at 11p.m.—What Can I Do?

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Joe EscalanteThere are people in my apartment building who start band practice at 11 p.m. many nights. I have tried talking to them, I have tried talking to the manager—no help. What are my rights?

Wendy McConnell

Barely Legal Radio w/ Joe Escalante

Great question Wendy. Even if the exact words are not in your lease, every tenant has the right to the “quiet enjoyment” of their property. Any interference with this could be termed a “private nuisance.” A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. If the landlord has been warned, and does nothing, a court may find that he breached the “warranty of habitability” that is implied in every landlord tenant relationship. Arguably, you could withhold rent, but you would have to have some pretty good documentation of the nuisance, and the landlord’s lack of action to get a judge to allow you to withhold rent. It’s important to document the nuisance with film/video/decibel meters, etc. and even more important to document the notices you gave the landlord.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

January 29th, 2015 at 1:08 pm

Can You Extend A Provisional Patent?

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Joe EscalanteAbout patents – can you extend a provisional patent if you don’t get it together in one year? Am I protected under a provisional patent? How can I assure my idea hasn’t been patented decades ago?

Jenny Cestero

Barely Legal Radio w/ Joe Escalante

Great questions. You can watch a video from the U.S. Patent and Trademark Office on patent searching and other useful things. You don’t have to search that far back because patents don’t last too long, the max is 20 years. You cannot extend the protection of a provisional patent. You can file a second provisional patent, but you will lose your priority date, perhaps to someone else. The only way to preserve your original rights gained by your first provisional patent is to file a non-provisional patent that claims priority to the filing date of the first provisional patent.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

December 24th, 2014 at 12:27 pm

Is it Too Late to Get Visitation Rights for a 14-Year Old Daughter?

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Joe EscalanteI have a daughter whose mom keeps me away from her. She is now 14 and I have done nothing wrong to the mom. The mom all of a sudden had a change of heart. The child is asking who her dad is and the mom refuses to say who I am. Her mom hates me so much she tried to file false charges on me but they never stuck because the detective saw through her lies. Will a judge deny me visitation because I waited so long and in Oregon is there an age that a minor child has to be to decide who she wants to live with?

Allen James Brost

Barely Legal Radio w/ Joe Escalante

You should file a petition with the court stating your wish to have custody of the child or at least be granted visitation rights. If you are granted visitation rights, the mother will be in contempt of court if she denies you those rights. In Oregon, a judge may consider a child’s preference about where the kid wants to live, but a judge doesn’t have to follow the child’s wishes. This is true no matter the age of the child, although the wishes of older kids carry more weight than those of younger ones. Good luck!

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

December 24th, 2014 at 12:26 pm

Will My Homeowner’s Insurance Cover Any Injuries from My In-Home Business?

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Joe EscalanteIf I have a small business run out of my home where people come, and someone gets hurt, would my homeowner’s insurance cover it? I’m located in New York.

Leenie Levitt

Barely Legal Radio w/ Joe Escalante

Hello Leenie, a typical homeowner’s insurance policy does have personal liability coverage as well as coverage for medical payments for injuries. This policy should cover injuries incurred by business visitors to your home. I recommend obtaining commercial general liability insurance if you don’t have it already to protect your business assets. Speak with your insurance agent on the specifics of your coverage.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

December 24th, 2014 at 12:25 pm

Is it Legal to Put “TM” on Your Logo Before You Register the Trademark?

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Joe EscalanteIs it legal to put a TM on your logo before you apply to register the trademark? Thanks!

Cathy Rundell

Barely Legal Radio w/ Joe Escalante

You can use trademark symbol (™) even when your product is not registered, but you are asserting trademark rights. That’s fine. You can even use the service mark symbol (℠) for unregistered services, although this is rarely used and will make people think you are a bit weird. Registered trademarks and service marks are indicated using the registered trademark symbol (®). In some jurisdictions, it is unlawful or illegal to use the ® symbol with a mark which has not been registered, so be careful with that one.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

November 26th, 2014 at 4:02 pm