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Do I Need a Copyright or a Trademark? And More Free Legal Advice – Free Joe 6/26/12

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Stan: Hello~ THIS one is right up your alley… Just what is the best way to “understand” (I’ve previously read some LZ replies) when to apply for a Trademark vs. a Copyright? Say, for a phrase relating to a business: “Look Across Generations To See Your Past… and Speak To Your Future~” as for the business Picture-Yourself-Remembered™ Thanks, in advance, for trying to help me better understand~ -SP

Joe Escalante: This is a trademark issue. Not a copyright. Because a copyright is only to protect the creative expression of an idea. Your tagline is pretty long, but probably not long enough to merit copyright protection.

Rhonda: I really need some help here. I need to get out of a horrible 23 year marriage. It wasn’t all bad, but my husband has now completely cut me off from any assets. He works, I don’t, but he will not even give me money to buy groceries…he does the shopping. In our 23 years of marriage, he has NEVER bought me clothes, or shoes…I have had to make due with my daughter’s second hand clothes that she gives me. He keeps the family car in his father’s name, so I am not allowed to drive it. I am a virtual prisoner in my house. Any way I can get any help with this situation? As I mentioned, I have no access to money for a lawyer, and he knows this, so treats me as he chooses.

Joe Escalante: Divorce laws an proceedings vary by state, however, in most states, it shouldn’t be a problem to get a divorce attorney to go into court and ask for an order for a husband like this to pay for your divorce attorney. That’s how the system is set up to help people like you. Find a good one, do whatever they say, and you will be free at last. Click below to get started.

LegalZoom: Here’s the link, Rhonda:

Suzi: Hi. I own a townhouse condo in the Boston area there is one more which is connected together. There is someone else who owns that. We have a few parts of the property that are feeder to us but there is a back yard that is deeded to us both as a shared yard. We have both own the property for the last ten years. He was not around much until he recently got married not helping care for the property. Recently I found him out back in the yard with the grass ripped out and he built A stone Deck. I spoke to them and they said (he recently got married) that they wrote me a note. I told him that this is shared property but all they said was ok we can share it. The next week they put a huge canoe across the back of the yard and expanded the deck and put flagstone down over more of the property. I asked him to remove the flagstone. Until we talked about it but instead I got a note telling me off and saying they welcome my feedback but that was a purposed area and they did not move it. We are meeting this week. Basically they are taking over and don’ t care. What are my rights?

Joe Escalante: You need to show the deed to a property rights attorney in your area. I think it all depends on how this is worded. Sounds medieval. Or you could go nuclear and file for a court ordered injunction and restraining order against any further building on your shared property. That will get their attention.

Donna: Hi Joe, Thank you for answering my question…I employed my ex husband a few years ago and he in return filed a workman’s compensation claim against my company. He is 10 years (minus the months that I deducted it from his pay) behind in child support and has settled with my insurance company for a little over 90k. I offered him to settle with me for 40k and it was agreed (with his attorney on the phone, I live 350 miles away). My question is this. We came to an agreement, his attorney agreed to write up the agreement and have the courts sign it. My ex husband received his portion of the money but his attorney keeps telling me that she has been too busy to write up the agreement. She claims that she has the money in her bank account sitting there waiting for her to have the time. Now, if i get an attorney (I have no money to pay)…I am afraid that it will delay the monies even longer and I am in a bad financial place. What do you recommend that I do to expedite this and do you think that it might be possible that she and my ex husband were just pretending to do this and he actually received the entire amount. I have nothing in writing yet from her only verbal agreements from all parties and her word saying as an attorney she would not risk her reputation by not living up to the agreement.

Joe Escalante: You need to send the attorney and your ex a writing reflecting your understanding of the agreement. Send it certified mail. This will be evidence that there was an agreement. If the attorney and /or your ex responds positively, you have evidence of her assent. Now you have a written contract that doesn’t really need to be signed. If they dispute it, you have a written record of the disputed areas. You should do all correspondence in writing until you both agree on what the terms are. Forget her dumb settlement agreement that she’s never going to produce.

Then you are going to give her a deadline, after which you will report her to the state bar for keeping money in her client trust account that belongs to you. This is bad.

Ruby: hi. id like to know when your renting with option to buy. home and land. and thire are no airs. and the people wants to get the home and land deeded over to you. at the time of thire death with out costing another arm and leg even if thay have moved to another state! how could we do this? the attorney here has all the paper work.and wants to charge to send any thing,? so im needing some help knowing how to help with this.

Joe Escalante: This is hard to understand, but if you’re talking about transferring property after death, the best way is by transferring the title to the property to a living trust before death. Then after death, the property just transfers to the beneficiary named in the trust without going through probate. Sorry if that doesn’t answer your question.

Eric: Joe,
I’m opening a business working with the elderly in my community. During the process I’ve discovered that a large number of them don’t have will’s for instruction of any assests they may have. My idea is to create video will’s for these individuals at a very discounted rate. I was thinking simple forms notarized documents showing that they are performing the recordings under their own free will would cover me, but I’m not sure. Thanks for any advice you can give

Eric from Florida

Joe Escalante: If you’re going to have notarized documents, you don’t need the video. Courts aren’t set up to examine people’s videos unless there is a disputed will. You’re injecting too much drama into the process. And you also have the problem of practicing law without a license if you don’t do this the right way. I’d think of some other way to make money like building a better bedpan.

Kathy: I would like to know how to file for divorce with no money. Live in VA, husband living with girlfriend in our house in MD. He wouldn’t move out, was cheating after 1st separation. Had agreed to buy my out of the house. Says will send money but hasn’t. We have been separated physically for a year now, but lived in the same house for 6 of those months because he wouldn’t move out with his girlfriend. What can I do? Want him to sell the house but he won’t, also he is now 3 months behind on the mortgage.

Joe Escalante: You can try an uncontested divorce with legalzoom, but if you guys can’t agree on how everything will be split, you will need to hire an attorney or read this book and do it on your own. I’d read the book anyway.

Annette: How do I go about setting up a trust account for my grandchildren who are 4 years old and one month old. We want to have them as beneficiaries for our life insurance policies along with my adult daughter. Do I need an attorney to do this or can I do it prose? If on my own; what steps do I need to take?

Joe Escalante: You don’t need anything to name these kids as beneficiaries, or the adult daughter. You just name them in the policy and when you die, they will only have to fill out a small form and elect a lump sum or some other form of payment and the money will fall out of the sky onto them like magic.
If you want to give them a house, put that in a trust and name them as the beneficiaries. You can do that through legalzoom or hire an attorney if you think you can’t handle it and you like to give money to attorneys. Click below for some details.

LegalZoom: Here’s the link, Annette:

Jackie: Is a “living will” and a “living trust” the same thing. If not what are the differences?

Joe Escalante: They are very different. I don’t know how they ended up with such similar names. A living will is a medical directive that allows some guy in a lab coat to make end of life decisions for you. A living trust is where you put your home so you can leave it to your heirs without going through probate.
An “advanced medical directive” is like a living will, but instead of letting some medical professional make your decisions, you name a specific person who shares your values.

Karen: Hello, just wondering how I would go about raising child support in the state of Washington?

Joe Escalante: You petition the court to raise it based on new circumstances you present at the hearing.

Josh: What legal considerations must one take into account when being a licensed Realtor and wanting to start managing property (becoming a Property Manager)?

Joe Escalante: For starters, I would incorporate or start an LLC to protect personal assets and gain tax advantages. Read the book Rich Dad Poor Dad. That’s how he made is money and he explains it quite well.

Kareem: Should i get my wedsite.. LLC-ed, before I start promoting products?…

Joe Escalante: My advice is no, but check with your tax lady as well. There is often an minimum state tax to have an LLC. I’d start out as a sole proprietor with insurance and see if it’s really going to make any money to be worth creating an LLC.

Alex: Question: Say I want to start a so-called “super” PAC. What is the best way to incorporate my organization in order to be able to make unlimited independent expenditures on elections? As a 501(c)3? A 501(c)4? A 527? All of these have certain restrictions on campaign expenditures according to the tax code. Should I just incorporate as a private for-profit business? If so, which form would be best for avoiding taxes on my political advocacy? An LLC, S-corp, or C-corp?

Joe Escalante: If you’re getting into the political realm of supporting candidates or issues with tax exempt funds, you need to incorporate as such, and not as a private corp. and you can’t do it with a 501c3. This is all a can of worms. Make sure you thoroughly read up on it before you make any moves.

Roy: My mom died recently and her will is pretty simple. Since I’m an only child, everything goes to me. Do I need to file any probate court procedures or can I just file the will at the probate court office (I’m in GA).

Joe Escalante: You have to follow your state’s probate procedures. There are no other options regardless of the size of the estate.
They try to make it easier for a small estate, but you sitll have to do it their way.
If you’re not going to use an attorney, you’re going to spend a lot of time dealing with medieval paperwork quagmires. The learning curve is tremendous. By the time you’re done, you will know how to do it, but it will be too late. I’d hire an attorney.

Tan: During divorce proceedings and the issue of dividing up property, how are ownership of pets determined, especially if one spouse doesn’t possess ownership papers?

Joe Escalante: It’s all a negotiation. If you want the pet, you make your case to the judge. He looks at it and makes a decision. I don’t know if the judge would care about the “ownership papers.” They are more concerned with who’s been the primary care taker day to day.

Sandra: Hi…great service. First time ever posting. I’d like to start a small business…a photography business. What forms do I need ie to have a business name, and for tax purposes. Also…is there a way to post my photographic work on FB and eliminate the ability of others to steal my work? Thanks so much in advance for your help.

Joe Escalante: Regarding facebook, the only way to protect your work to some degree would be to only upload small versions and / or watermark them. Watermarking is the annoying semi-transparent logo that people put all over their precious photos they don’t want people to just use willy nilly.
Regarding start-up. There’s lots of things to do, and lots of information on the Internet. Here’s a link to some helpful Legalzoom articles.
What I would do if I was starting a business for the first time is talk to a friendly banker. As them what they require to open a business checking account. They will give you great free information and at least you know they will open up your checking account if you satisfy their requirements.
Then talk to your insurance guy. Then you’re on your way.

Leo: Hi Joe. Thanks for taking my question. What is the most cost effective way to open a company that relates directly to a company I already own, but to have it have it’s own seperate name please?

Joe Escalante: That depends on what kind of an entity your original company is. If it is a corp or LLC, you can just start a new DBA owned by your corp or LLC. Talk to your tax lady though. She’s the one with the real info you need to make this decision.

Suzan: I want to expand my retail business from online to brick and mortar and take on a partner. I will be seeking private funding and have a workshop and sources for that part. What papers do I need for the partner, if any?

Joe Escalante: It depends on what kind of an entity it is. If it’s a corp, you need to issue shares, if it is a sole proprietorship, you just draw up a contract detailing each partner’s rights and responsibilities as you have just created a partnership in that case. There are default partnership laws, but you can contract around them or improve upon them with a written document.
You should have a lawyer draw up these papers and make sure you run it all by your tax lady. It might be time to start an LLC.

Alverna: Can a simple will be hand written and noterized legal and binding?

Joe Escalante: It varies by state. In my state it requires two signatures of disinterested parties and no notary.

Scott: If i invent something and patent it, what is the maximum number of similarities another product can have with out being infringement?

Joe Escalante: I’m not sure that there is a hard fast number as a maximum. If you’re going to patent something, you are well served by having at least one consultation with a patent attorney to see if it’s all going to work. At least read the Nolo Press book.

Brandon: Joe, What are the legal considerations of which I need to be aware if I would like to receive personal donations via the internet?

Joe Escalante: There are no significant legal considerations unless you are involved in politics or some other tax exempt activities. There are however, significant tax considerations that you should go over with your tax lady.

Najia: My husband has been paying alimony for over 6 years from a 20 year marriage. He did get the clause put in to the divorce that she had to make strides to get back on her feet in a reasonable time. How much longer should we wait to take her back to court to try and get rid of the alimony payment?

Joe Escalante: That is a personal decision. If I liked her I’d say keep paying her forever and don’t be so mean. If I didn’t like her, I’d say cut her off, I don’t like her. Legally the standard varies by state. An experienced divorce attorney in your state would know what the judge will go for, likely.

Kimberly: want to llc my non profit organization what are the steps? kimberly, daytona beach

Joe Escalante: Maybe you mean you want to make it an official 501 c 3 tax exempt non profit organization. Here’s one way to do it:

Mark: If a band’s ex-singer wrote lyrics to a song written by other band members, what does the band need to do to be able to use those lyrics in recordings, live performances, and elsewhere?

Joe Escalante: Copyright law would assume it is a joint work. To take the words and apply them to a new song would be a derivative work. The original author could claim that he has the right to control it’s use as a derivative work and cause problems so you should get a “license” from him if this is what you want to do.

If the song has been “published” (e.g., released to the public on a recording), then you can make new recordings of it as a “cover song” like anyone else. You just have to account to him for any publishing income. If it’s unpublished, it gets really tricky. For more detail, call my radio show on Sunday or go to and put it in the contact section and we’ll arrange to have it answered for you as part of one of the shows. This is what we do.

Norma: What’s the best way to get custody of a grandchild with the mothers consent an the father nowhere to be found?

Joe Escalante: You can file a petition with the court. If they feel it’s in the best interest of the child, they will award you custody. You need lots of evidence as to why this should take place.

Elvyra: I have a court in 2 days for speeding ticket. Didn’t have any tickets or accidents in last 6 years. Should I plea no low and ask judge for mercy or consent guilty and ask for mercy? Trying to avoid points on driving record and possibly reduce the fine. Thanks!

Joe Escalante: If you feel you are probably guilty, to avoid points, plead guilty and ask for traffic school, if your state allows that to remove points. Mine does.

Chrissy: If you have a child support order (in NJ), with all the bells and whistles ordered by the court (probation, wage garnishment, credit reporting, tax refund garnishment, etc.). And the obligor does not conform in anyway, and is now $35K in the arrears. Is there anything else that can be done to force him to do what is ordered by the court? It seems the problem is the fact that the two parties are in two different states, NJ and PA. But still, is there anything else that can be done?

Joe Escalante: The remedy is to go back to court and report that the obligor is in contempt. Contempt of a court order means jail time. Sometimes the threat of this is all it takes but you are at least going to have to file the papers to get the contempt finding started.

LegalZoom: Attorney Joe Escalante will be back on Friday with more free legal advice. Get the details here: and come join us!

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June 28th, 2012 at 5:46 am