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Fair Use Doctrine, Church Fraud, and More Legal Advice – Free Joe Tuesday 8/9/11

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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.

Bill: QUESTION FOR ATTORNEY JOE: As a presenter, can I use clips from movies and television shows in my presentation, embedded in my Power Point? As a keynote speaker and TV show host, I have searched for any guidelines on this. Thanks for your help on this one.

Joe Escalante: Yes and no. To exhibit copyrighted works in public generally requires a license. However, there are a few exceptions. One is the Fair Use Doctrine of the Copyright Act. It allows you to use Copyrighted work without permission in narrow instances where you are commenting on the work itself, only using as much as you need to make the point, and you don’t hurt the market for the original work, etc.

Getting permission to use the clips can be opening up a can of worms. If you don’t will they catch you? Depends. If it’s a presentation for your kids Indian Guides troop, then no, they wont. If it is a keynote address for a convention of studio lawyers, you are in trouble. Listen to my radio show on Friday, and call in on Friday or Sunday night and we can talk about it further. These are entertainment law shows, with live calls. http://www.barelylegalradi​ Thanks.

Ivy: How do you make sure that even when your divorce is not final that the “ex” does not encroach on any of your property?

Joe Escalante: That is called a restraining order Ivy. It’s a very serious step and it’s done through the courts. Sometimes just the threat of a restraining order will do the job. Having a restraining order on your record is one of the worst things that can happen to a person if they are ever applying for a job, or a loan, etc.

Ta: My sons girlfriend has been having trouble with a roomate and the landlord has not done much about it. She originally lived with another roomate who left and in an urgency to fill the vacancy the landlord chose a bi-polar woman and her fiance. As a result there has been nothing but trouble and the police advised my sons girlfriend to break lease as things were becoming the woman was pushing past the girl trying to knock her over etc. She explained to the Landlord what the police told her but in the meantime she received a call from home that her brother was killed. She went home for the funeral and when she returned the bi-polar woman had packed all her things and put them in dirty trashcans and the Landlord put someone in her room. The entire month was paid for, and the landlord knew she had a death in the family but insists that he is not liable since the tenant bagged her things. Is the Landlord liable, especially since her things were damaged and some stolen?

Joe Escalante: Whether the landlord is liable or not would depend on the duty he owed the girl here. An absentee landlord, that sends a gardener once a month and collects rent, doesn’t have a duty to control the roomates activity. In this case, the girl’s cause of action is against the bi-polar chick only.
If the landlord lives with them, and manages the household, maybe she has a duty to prevent stuff like this from happening. Best thing to do is to send a letter saying there has been “constructive eviction” so the lease is terminated, but demand return of the portion of the rent that has been over paid. You can take the landlord to small claims court if they don’t pay by a deadline, like 30 days. Good luck.

Jennifer: I bought a townhouse in 2005. I had to purchase home owners insurance. The Subdivision’s HOA is responsible for the roof. My insurance says they won’t renew my insurance unless I prove that my roof is less than 25 years old. I contacted the HOA and they don’t have the paperwork that gives the exact date the roof was redone. They believe it was redone in 2002. The insurance company wants to have a form filled out by an roof inspector. Should I have to pay for the inspector or the HOA since they didn’t keep accurate files? I pay a monthly maintenance fee to the HOA who is supposed to keep up with the exterior of the building. Any advice?

Joe Escalante: I would set out your position in writing to the HOA and tell them that if they don’t come up with the paperwork needed, OR if they don’t provide their own inspector, you’re going to be forced to hire your own inspector and deduct it from your dues, if they don’t reimburse you. This is what you are paying HOA fees for, correct? If they refuse however, you have a fight on your hands. They sometimes put a lien on your property for unpaid HOA dues.

Patrick: Joe…will you sponsor my website once it is launched? Im looking for Playboy to sponsor as well! That should help you decide..hehe

Joe Escalante: It sure did, it helped me decide no. :)

Ray: Morning Legal Zoom and Mr. Escalante. I recently created an LLC. to form my film companies entity. We are in the very early stages of making the film, and are just now having the screenplay read and critiqued. My question is, what type of tax form do I need? We have very little money moving yet, but will within the next year or so. Thanks for your time.

Joe Escalante: There are minimum tax requirements in some states for LLCs and Corps so check with a tax pro in your state. We shy away from tax advice here. Why don’t you start and get rich?


Joe Escalante: The surest way would be to file for divorce in Georgia if your wife still lives there. If you file in S.C., there could be some jurisdiction issues. Perhaps the court in Georgia has no personal jurisdiction over her. If there are kids, the Uniform Child Custody Jurisdiction Act would come into play. A jurisdiction fight can get really expensive. Best advice: Patch it up!

Keilani: Good Morning LegalZoom: Before moving into an apartment that the landlord “claims” not to have rodents/roaches. What can I do to protect myself (in regards to breaking the lease) if rodents show up after I’ve moved in and signed the lease? Thanks in advance.

Joe Escalante: You want to assert the the lease has been breached, or constructive eviction has taken place because the implied warranty of habitability has been breached. You have a right to live without rats, period. However, you must go through steps. Landlord has a right to be notified in writing and given the opportunity to cure the breach. You can’t just move out and tell him later. Do everything in writing.

Martin: I am a former member of a non-profit organization 501(c)(3). All former members donated money, goods, time to this organization (church) for years. Leaders of the organization dissolve it, stopped services and programs from one day to another with no explanation to members. Now we know leaders own a plane, bought a dozen of properties in the area, travel all around the globe in first class and recently hear allegations of sexual manipulation from Director of this organization. These type of organizations must have to report to some federal agency what they do with donations, 1) how do I find that? and 2) what is the best way for some formers members to report these people? start some legal action?

Joe Escalante: Report them to the I.R.S., the District Attorney’s office, and the F.B.I. You could perhaps file a civil suit against them, but I’m not sure what your damages are, so speak to a plaintiff’s lawyer in your area about that.

and stay away from the Kool-Aid barrel.

Angie: if i got divorced in south carolina , but now reside in mississippi do i have to go back to south carolina courts to fight for child custody?

Joe Escalante: The Uniform Child Custody Jurisdiction Act (UCCJA) is something you should get familiar with. It helps determine which court will have jurisdiction over child custody issues.

Nan: Hi Joe,
Thanks for doing this…
I have a small business with two long-time contract people. I would like to have them as partners, but not full partners. I would just like to give back to them with a small percentage of the business, like 5% each. That way they get a little profit sharing from that, and when I’m ready to sell my business in a few years, they have a vested interest in buying it.
Is that possible to do, and is it smart to do?

Joe Escalante: I think it’s great if it’s done correctly. You should have a lawyer draw up the paperwork. You can do it by contract that gives incentives and vests after a certain goal is met either by performance or longevity. But I would definitely see a lawyer that is experienced in business entities.

David: I went to court in 07 for custody hearing got denied to see my child cuz o could leave work whenever they decided to call my work wrote letter to try and work a time where I can leave but judge didn’t care asked me what’s more important my job or my son well my son but I need a job to support him u got your priorities mixed up I had no problem testing for drugs but just couldn’t just leave when they call been paying child support for 10 years and don’t even have supervised visitation rights what can I do

Joe Escalante: Since you’ve already been denied in court, I don’t see much hope for you without a good family lawyer experienced in father’s rights. Google father’s rights and start researching. Be careful because sometimes the info looks like it’s free, but it’s really trying to draw you into a law firm’s clutches. Look for a free consultation with an attorney at least. If you cannot afford an attorney, you might have to play the game of being super nice to your baby mama. It will be humiliating, but probably in the best interest of the child. Re-gain the trust.

Brian: My question is a continuation from my last weeks question. How do you dissolve a llc where unreachable partner is unreachable, we aren’t even for sure he’s alive. We just don’t know. There was no operating agreement because we just got the llc paperwork then this guy left for a few weeks which turned into months. That was going to be completed when that partner returned. There are three partners total.

Joe Escalante: Document your efforts to contact the missing partner. You want to avoid him coming back and suing you for a breach of your fiduciary duty to maintain the LLC and protect his interests. Obviously he’s got no ground to stand on but unless you have it all documented, he could cause trouble. Dissolve the LLC by the means allowed in your state, since you don’t have an operating agreement, and send him notices to last known address. To be extra careful, consult with an attorney in your area that has experience in business entity formation.

Lynne: I was in a huge accident and settled. The lawyer said that they would pay medical bills, take lawyer fees and I would get the the rest. I recently found out that the only medical they paid was to reimburse my insurance, and none of the “co-pay” bills were paid. What are my options?

Joe Escalante: You have to look carefully at your “fee agreement.” In there P.I. lawyers usually spell out what they will and will not cover on their end. If there’s a breach, you have a breach of contract issue with a law firm. Not fun, but that’s what you have.

Lynn: What are the differences between a Will, A Living Will, a Trust and Irrevocable Trust? I am trying to figure out which one to do?

Joe Escalante: Legalzoom has excellent charts and stuff explaining these things. Follow the link below. An irrevocable trust is one of those things that you can google and you’ll get all kinds of info. It is what it says, you set it up to benefit someone else, and you cannot revoke it.

LegalZoom: Here’s a comparison chart, Lynn:​ills-estate-planning/compa​re-documents.html.

Also check out the Basics of Estate Planning Guide over on the Guides & Education tab:​galZoom?sk=app_20114351656​2748

Trey: at San Diego Entrepreneur Center celebrating co-working day: What sort of document should I use to solidify my interest in a company that has yet to establish their ESOP plan?

Joe Escalante: If they haven’t established an Employee Share Ownership Plan, maybe they don’t want to share ownership with employees. They don’t have to share. If they have offered ownership interest to you, make sure it’s documented in writing. If they mention it orally, you follow up with a letter. To make a deal like this enforceable, you have to have a contract, or demonstrate reliance to your detriment. E.g., you turned down other offers because they said you were going to get some ownership.

Cheryl: My husband had a pre-existing hernia problem. But damaged it badly at work carrying heavy pails up stairs. Workman’s comp will not cover the injury but were told by them that pre-existing injurys are covered. What can we do?

Joe Escalante: You need a workman’s comp attorney. Keep records of everything they are saying, and try attorney connect below:

LegalZoom: Here you go, Cheryl: http://attorneyconnect.leg​

San Diego Entrepreneur Center: Hi Joe, we are celebrating Coworking Day in San Diego at the…lot’s of startups and entrepreneurs face tons of legal issues that help them or hurt them. Because they face so many dealings in getting their concepts up and running, are verbal contracts good enough or do you recommend that every agreement should be memorialized on paper, even if all the T’s & C’s are not written out? Thanks!

Joe Escalante: This is an excellent question that I touched on a little earlier, but in general of course the dullest pencil is better than the sharpest memory (or something like that). However, sometimes it’s creepy to be obsessed with everything in writing so one thing that’s good to do when you want to keep it light is to just follow up these oral agreements with a note that explains how you feel it all went down.
If they don’t respond, but act as if the contract exists, then you have a valid contract.
If two parties are both acting as if there is a contract, that is usually fine evidence that a contract exists.
Reliance is another key contract issue, it’s important to demonstrate that you relied on the promise. Just a promise, even if in writing is not enforceable because there is no “quid pro quo” or consideration to back it up. Each side must give something, or give up something (reliance) to have a valid contract.

Jake: Joe, down here at the HIVEHAUS celebrating co-working day! My question deals with liability of comments/reviews on sites. What do you feel is the best way to protect yourself as a business owner of a review/rating site? Any specific verb-age to include in the terms of use? Thanks in advance for any help you can provide!

Joe Escalante: I think it’s important to provide a clear set of rules, and then a procedure for people that may be harmed by the comments to challenge them and have them taken down. If you post the rules clearly, and follow them consistently you will minimize your risks. We all like the 1st Amendment but comments on the internet are often hideous. Our founding fathers would have probably said, “1st amendment doesn’t apply to youtube comments, those people are wack.”

Liz: If a family member dies and they have a child who u believe is not theirs how do u go about dna testing them to make sure they dont get benefits they dont deserve

Joe Escalante: It would be a civil rights violation to surreptitiously get their DNA without a court order/warrant in my opinion. You would need their consent. However, if the child was raised with the belief that they were legit, and the decedent believed it, what’s the point here? If the child was born during a valid marriage, even if it is an adulterine bastard, the court would assume the father is the legit bio-father. It’s a hard burden to prove otherwise. I would give it up.

LegalZoom: That’s it for Free Joe Tuesday! Thanks for joining us. Joe will be back again on Friday to answer more of your legal questions, so join us again then! In the meantime, be sure to check out the Barely Legal Radio w/ Joe Escalante Facebook page and thank Joe for his sage advice. :)

If you’ve got a legal question, join us on Facebook to post your question for Joe. Get all the details on the Free Joe tab.

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August 11th, 2011 at 6:50 am