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How Do I Include My Social Media Presence in My Last Will? And More Free Legal Advice – Free Joe 9/7/12

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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.

Kip: What’s the process to have your social media presence included into your estate plans?

Joe Escalante: You can try to get whatever you have in mind done by spelling it out in a will or a trust. The real issue is can you leave your itunes songs and ebooks to your heirs. And the answer is not unless you bought them in the name of a trust. The trust will survive your death.
Those are licenses, they usually only license you the stuff until you die. It’s a legal frontier though. There’s not a lot of settled law.

Gabriel: Hi Joe I have a legal question I live in ca and was recently accused and arrested for supposedly threatening a repo man he said I did I said I didn’t next thing you know I’ve got 10-15 cops with full body armor surrounding my house I took notice and came out and willingly let them search me and asked what the big deal was and the cops thearten my life and instructed me to shut the f up and then put my wife in hand cuffs and searched my house without permission was this a legal search? And one officer told my mother he would kill me in the blink of an eye my name is Gabriel I would appreciate any help ps I have no criminal record of any kind I vote and am a natural born citizen thanks joe

Joe Escalante: The police will testify that you were disorderly. I would be too if someone was repossessing my car. It’s understandable. But the police live for this kind of low risk drama. It’s their excuse to act like jackasses. Granted, they have to protect the public, but sometimes they go overboard. But let’s be honest, how do they know you are not a dangerous guy with weapons?
The tow truck driver (now there’s another piece of work) is in regular contact with the police. He knows what to say to them to give them the impression they are approaching a dangerous guy. And if I am approaching a dangerous guy, I might cuff his wife to be safe. I saw Bonnie & Clyde like 10 times.
Maybe it was wrong for them to threaten you and to tell your mom they would kill you really fast, but you only have legal recourse if you suffered damages? From this story, you have no damages that could be compensated in a court.

Robert: If I’m on ss disability can i transfer a house into my name

Joe Escalante: It shouldn’t affect your SS Disability payments, because that is based on what you put into it, but it will affect any Supplemental Security Income, because that is based on need and resources you may have.

Deby: What is the difference in charges if a person is being charged as a minor instead of as an adult in a case of child molestation? The person was in there older teens and knew right from wrong and it wad done to a much younger sibling

Joe Escalante: This will vary in every state and county, but in general a minor is supposed to be given a chance that adult doesn’t get. However, there is a lot of pressure in certain areas to charge minor children as adults if the crime was particularly offensive. Then they are tried as an adult and get adult sentencing. It all depends on the D.A. If he’s up for re-election, he’s got to appear tough as nails.

Barbra: A website called ICB took one of my photos, and they are selling it as a wallpaper without my permission. Can I get a percentage of how many they sell????

Joe Escalante: You have a right to sell your own image as wallpaper. Wallpaper is a commercial enterprise. It’s not like if your face was on the screen in a documentary, or even in the audience at American Idol.
If it is clearly you, and is depriving you of that possible right, you have the right to recover damages. And if you are not a public figure, there are some privacy rights as well. if you want to send a message to me through my facebook page I’ll take a look at it and the company and see if there might be some serious damages.

Marty: Joe, I am in some major debt from a failed business. Business loan, taxes, & other unpaid bills. I have income. I am trying to negotiate lesser amounts but I don’t want to be paying off this business for the rest of my lfe! Would it be simpler to file bankruptcy? and if so, how should I file? Thanks.

Joe Escalante: If it is a corporation or an LLC you could just bankrupt that company and your personal assets would in all likelihood be untouchable. However, if these are personal liabilities, speak with a bankrupcty lawyer to see if you qualify. Legalzoom has a good way to get that process going without committing right away. Click the link for Legalzoom’s Bankruptcy Services.

LegalZoom: Here’s the link, Marty: http://www.legalzoom.com/bankruptcy/bankruptcy-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Jenna: Morning Joe! Thanks for making yourself available on your day off. Question for you…What does the law dictate when it comes to a business (my own) purchasing officially licensed supplies/materials and turning them into a product for sale? Can I purchase say licensed ‘character’ and/or official team logo fabrics and sell my product without fear of copyright infringement? Or does my purchasing them as licensed supplies (wholesale or retail) make it ok? I have a business I’m about to launch online and I’m planning for future developments…and this might be one of them…hopefully. Thanks so much!

Joe Escalante: If you take NFL licenses bed sheets for example, and cut them up and make attractive plushies out of them and sell them on line, you have effectively created a derivative work. It’s kind of like if you purchased a Ricky Nelson single, then you recorded your dog barking along with it. That would be cool and people might like it, but it’s a derivative work and the original copyright holder controls what goes on with derivative works made from their stuff.

Angel: How do you protect the name of your company. What are the steps to do so. Someone using a company name that is just like yours offering the same exact service. When your company been in business many years prior. And many consumers believe both companies are affiliated with one another. When in fact they are not! Example: Burger King and Burger Queen.. Thank you for your time

Joe Escalante: You have just described the entire philosophy behind the theory of Trademark Law. Congratulations. The U.S. Patent and Trademark Office offers protection in exchange for registering marks. However, your protection in general begins when you start using it, not when you register it. So always document your use. And it must be used in interstate commerce to receive federal protection. Otherwise you can only seek state trademark protection.

Sherri: I have a question for Joe. I applied for a job. In which they did a background check n it failed. I have a check that was wrote in 2006 n it was dismissed. I was never arrested n now I have to have it expunged from my record. I need help to do that but I can’t afford what the attorneys are asking

Joe Escalante: If you were never arrested, there is no record to expunge, or even have sealed. You can try to clean up your credit if that’s where it’s showing up, but that’s not really a legal question. It’s more credit counseling.

Frank: I filed a “Doing Business As… ” in California. Do I need to refile the “Name”, since I moved to Washington state? Also, what is a good way to apply for a patent? Can I protect my invention, before a patent is issued?

Joe Escalante: Technically, yes because the govt. is trying to protect consumers in that area from you and your phony name. Hehe.

Regarding the patent. Look into a provisional patent. Legalzoom can do that for you. That will act as a placeholder for one year while you figure out if you can afford an actual patent which is really expensive and requires an attorney.

LegalZoom: Here’s a link to our provisional patent info, Frank: http://www.legalzoom.com/patents/provisional-patent-application-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Sean: If I apply for a trade mark using only the words of a business name or slogan and the trade mark is accepted, do I then have to trademark the logo or will the original trademark cover the logo as well?

Joe Escalante: You should register the logo because that is the most likely to be infringed. People will mimic your logo to pretend they are associated with your good will. They will do that without copying the slogan. Then you are screwed.

Mogamat: While driving down the road a dog came running out of a yard and I hit him now the owner wants me to pay R1000

Joe Escalante: They will have to prove you were negligent to get a civil judgment against you. Fight it. They have the burden of PROVING you were responsible for the death.

Donna: Hi Joe, Do I need an ISBN when publishing an ebook? Thanks.

Joe Escalante: It depends what kind of distribution you will do. If you want pro distribution, get one. If you are just selling downloads off your own web site, you can get by without it.

Rebecca: Hi. If two people have been living together for quite a while nut they have no property together such as bank accounts, vehicles, a house, etc., are they considered Common Law Married? Only one person agrees that they are but the other person has not. Thank you.

Joe Escalante: If both people do not hold themselves out to be married, even states that recognize common law marriages, would not recognize it as a common law marriage.

Dave: What are some of the tax breaks we as small business owners can take advantage of this tax season.

Joe Escalante: Sorry, only a tax pro would no that. This is legal advice.

Heather: I live in the state of Georgia and i want to try to divorce my husband myself but he moves constantly and i never know where he will be week to week, what should i do? We also have a 4 year old child together.

Joe Escalante: You file papers in any county that has personal jurisdiction over your husband. Where he is domiciled works, or if the kid lives with you, file in your county. You use the standard personal service rules of the court to give him a fair shot at showing up the the hearings. You publicize it in the paper. IF he doesn’t show up, it’s a default judgment against him.

Heather: So I can either file in his county of work or since our child lives with me i can file where i live? Just wanting to make sure I’m clear thanks.

Joe Escalante: Either one.

Eric: Dear Attorney Joe,

What are the legal ways a for-profit company can obtain free labor?

Joe Escalante: It is against the 13th Amendment to wave people work for free. Even internships must be compensated for by an educational experience and college credit.

Erin: Hi Joe – I’m curious about how you go about trademarking a phrase. I don’t mean something as obvious as a catchphrase that is clearly associated with a celebrity/etc., but a phrase that I wouldn’t want others to be able to use in their own designs to then sell. I know the design itself could be copyrighted, but if I understand right, it wouldn’t protect the phrase IN the design.

Joe Escalante: Society has no interested in protecting phrases unless they are associated with an identifiable product or service and that protecting them would eliminate confusion in the market place. And they have to be in use. Think of it from the gove
rnment’s point of view. They are just trying to prevent the public from being confused or harmed. They want to reward innovation, but they can’t let people sit on common phrases and deny other people the use of them unless there’s a reason.

Erin: Gotcha. It’s not a common phrase, but it’s not quite a catchphrase – it IS recognizably related to a specific famous entity, though. I’m concerned that it could be taken by said entity and used for their profit, despite the original idea being mine. Is there any way to protect that, or would I only be able to protect my specific design through copyright registration?

Joe Escalante: Protection is based on usage. You cannot protect it unless you are using it, or have a solid “intent to use” which only lasts 6 months.

Franklin: IF A MAN AND WOMAN HAS A CHILD BUT THE WOMAN CAN’T BE FOUND AND THE MAN HAS TEMPORARY CUSTIDY….CAN HE GET HIS CHILD LEGITIMIZE WITHOUT HER? IF SO, WHAT STEPS DO HE NEED TO TAKE? THANKS

Joe Escalante: First step would be to petition the court to terminate the parental rights of the absent parent based on abandonment. Once that’s done, permanent sole custody could be placed with the man. Good luck.

Mary: My question is about wills.my mother past 12-26-10 and left my oldest sister power of atterney and all her assets to her.even though she was the eldest of 5 living children. We r not contacted. About will nor present at will reading.I live in ky…mother lived in wva.is there a statue of limitations of protesting this.my name was mentioned in will but I wasn’t left a dollar.for the best intrest of the faimly..is what it read.any advise

Joe Escalante: You need to go the the court where the will was probated. The files are public. Look through them and see if you can find anything wrong. If there was any funny business, you can challenge it if you had no way of knowing about what was goin
g on. However, the court could determine that your were already legally notified and you lost your chance. However, I don’t think two years is too long, but these rules vary from state to state. If you find funny business, talk to a probate attorney.

 

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September 11th, 2012 at 6:04 am