LegalZoom Blog

Legal news and small business tips.

Is My Pinterest Board Breaking Copyright Law? And More Free Legal Advice – Free Joe 7/3/12

no comments yet

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.

Amanda: Am I breaking any laws (copyright or otherwise) by “pinning” on Pinterest? Can I get into any kind of legal trouble by simply pinning things that are already on the internet?

Joe Escalante: If a copy of even a portion of someone’s copyrighted work, like a photo or a blog post, is copied, and posted somewhere else, there are a lot of lame attorneys that try to make a big deal about this and extort money from innocent people just trying to share info. The cases have been going against the extortionists lately, but it is expensive when they pick you as a victim. Google Righthaven and see the nightmare that can occur.

Joshua: Can a non-compete be enforced in the state of Texas to “at will” employees? and If so please explain and if not please explain.

Joe Escalante: That depends on the language. If a court would see it as preventing you from earning a living, it is likely unenforceable. However, it would be possible, and not hard at all, to draft a non compete agreement that would be enforceable and even beneficial to both an at will employee and at will employer when signed.

Scott: 2-Part Question; How Do you Start The Application Process Of A “Trademark/Patent” & Do U Have To Apply 4 That Trademark Singularly In Every Country OR Is There A-GLOBAL TM That You Can Register 4…?

Joe Escalante: Read this stuff on the Madrid Protocol and you will know everything you need to know about making sure your Trademark has some International Teeth.

Yolanda: Can a personal Affidavit still be effective within CA if it was filed into public record in another state? Because public record is public record. And if the Affidavit is un-rebutted can it stand as truth in any jurisdiction?

And the personal Affidavit does not pertain to any court case. It’s just a declaration.

Joe Escalante: The word affidavit has many meanings. It would depend on what type of affidavit you filed.

Andrea: what are the legal pitfalls in a reverse mortage

Joe Escalante: The only survey I’ve heard about in this area had a very high satisfaction rate for people getting reverse mortgages, like in the range. A couple things to look out for is the cost to enter the loan. It’s much higher than a regular loan, like $8,000 vs. $5,000.

Issue of Compound Interest:
Since no monthly payments are made by the borrower on a reverse mortgage, the interest that accrues is treated as a loan advance. Each month, interest is calculated not only on the principal amount received by the borrower but on the interest previously assessed to the loan. Because of this compound interest, the longer a senior has a reverse mortgage, the more likely it is that all of the home equity will be depleted when the loan becomes due. That said, with the FHA-insured HECM reverse mortgage, the borrower can never owe more than the value of the property and cannot pass on any debt from the reverse mortgage to any heirs. The sole remedy the lender has is the collateral, not assets in the estate, if applicable.

So the real downside is for the heirs. They don’t get the house. The Mortgager does. If you want the house, lend grandma as much money each month as the mortgager was going to give her, in exchange for a security interest on the property.

Bonnie: What is the Statue of Limitations for a wrongful death suit on a Dr or hospital in Oregon?

Joe Escalante: § 30.020¹ of the Oregon Revised Statutes says:

…The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of:

(a) Three years after the death of the decedent; or

(b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110 (Actions for certain injuries to person not arising on contract) (4), 12.115 (Action for negligent injury to person or property), 12.135 (Action for damages from construction, alteration or repair of improvement to real property), 12.137 (Action for loss of or damage to property arising from nuclear incident) and 30.905 (Time limitation for commencement of action).

Graham: Does one need to declare an LLC as closed or will it be considered by the state as such if the LLC franchise tax isn’t paid? Is there any obligation to pay further penalties if you choose this route?

Joe Escalante: The rules vary by state, but to avoid addition taxes, which would be $800 for every year in operation, until officially closed, formally close it asap. Click the dissolution link’s below:

LegalZoom: Here you go, Graham:

Mary: Can I get my record expunged of a class C misdemeanor in Texas? I’m unemployed at 50 years old and I was teaching but I can’t get rehired with a silly charge on my record. It was failure to obey a lawful command.

Joe Escalante: You can try to file the papers yourself but this usually requires the skills of an experienced criminal defense attorney. The interests of the parents at the school where you want to teach must be considered, so it may hinge on what you were up to when you failed to obey the lawful command. Good luck.

Kristin: do I have any legal repercussions against someone who charged my dog with biting her son and it didnt occur? The case is in with the city but the city is stating I cant get the charges dropped unless she drops them.

Joe Escalante: To pursue some kind of malicious prosecution case, you must first prevail in the original case. If she or the court drops it, you will have no recourse.
However, if she goes through with it and lies on the stand, she will be guilty of perjury. If you can prove it, then you have to get the D.A. to file the charges, which will be impossible unless you live in Mayberry or someplace like that where they have nothing better to do.

Frances: What do you recommend for a small business with a small budget? Pre-pay legal or have a private lawyer? Is there a checklist somewhere I and use online ?

Joe Escalante: If you have an attorney that you know and trust to not over charge you for a lot of useless legal services, keep that person. If not, a personal or business legal plan my be right for you. Click below to find out:

LegalZoom: Here you go, Frances:

Dorothy: quesiton: NY Criminal Law. A man strangled me and almost killed me. I reported it to our local police and the DA of our county. NO investigation, no criminal case — we are moving forward with Assistant DA’s help. What is the conviction / prison sentence for strangulation? It’s a FELONY in NY State. I will likely testify in a Nassau County Criminal Trial. I am stronger now but it has been HELL ON EARTH the last year / recovering from PTSD etc.

>> thank you. and what are my legal rights as a VICTIM? NY State Victim Compensation Fund? This man was SO ANGRY that I went to the police (he threatened in writing from his work email if I did go to the police, he would do x or y to me in retaliation). I was UNLAWFULLY arrested, went to jail and the Judge has since dismissed the Charges then records will be expunged. I am innocent, single mother of two children. This man has deep-seated anger issues from his childhood and was VERY angry that I reported him to the police. He blamed ME for issues he is now having at work. I am the victim of Domestic Violence — but want JUSTICE. Thank you.

Joe Escalante: You can try the Victim’s Compensation Fund, but they will likely only provide a long and arduous bureaucratic maze with only actual damages covered, if that, at the end.
As far as sentencing goes, that would depend on too many factors for me to estimate, like prior arrest / convictions, etc. You can get a larger award in a civil suit but stranglers are usually judgment proof. That’s been my experience.

Mark: Hi. My son’s teen band wrote the music for a song, and then they got a lead singer who wrote lyrics and the melody for the lyrics to that song, but then he left the band. He won’t sign over all rights to the song, but has agreed to let them use it live and in recordings as long as he’s paid for his share of any revenue. The members are all ages 14-15. The song hasn’t been “published” yet, though it has been recording in my home studio with the former lead singer singing it. The band wants to keep the lyrics and melody to the lyrics, but we don’t know what to do to make it all legal, and how to get the former lead singer his share of any compensation. Also, what should this band be doing for future situations like this? Thanks for any help you can provide.

Joe Escalante: You, and all bands need a partnership agreement if you don’t have an LLC or are not incorporated. Click the link below for the one I created for Legalzoom.
With respect to the rights to exploit the song, since it is unpublished, you will need the permission of all authors to record and distribute it. To perform it live, theoretically you would need permission as well, but it’s not likely that any repercussions would come from performing it live without permission. It’s the recording and distributing that you need to worry about.

The Legalzoom partnership agreement has language to deal with former members rights, and current members rights to perform former members’ material.

LegalZoom: Here’s the link, Mark:

Georgetta: Hi, my hubby has joint custody of his son with primary physical placement his sons mother has supervised visits ordered to take place at a facility in Oshkosh (order Nov 2011). June 11 2011 was her last visit and she cancelled having anymore with the facility. She emailed me telling me she wanted me to adopt him and she wanted sign off her rights. She did not want to talk to or see her son anymore. It has been a year and she has made no attempts to see her son, she returns no emails or letters that are sent concerning him, has had no communication with his school. Our past lawyer said my hubby didnt need to do anything. Will my hubby get in trouble for not going to court about this? Can she come back and have supervised visits reinstated when she feels she wants to be mom again? We live in Wisconsin. Thanks.

Joe Escalante: She could conceivably come back and get full custody, with no visitation rights for your hubby if it was in the best interest of the child due to new circumstances, like maybe your hubby became a male exotic dancer with a bath salts addiction. Stranger things have happened.

So, you need to petition the court to formally terminate the parental rights of the mother, officially. She must sign off on it, and then you’re done. If she doesn’t sign off because she’s AWOL, you can still get it done if you can prove that she’s been notified of the hearings, etc.

Lou: Fraudulent Indulgence….what is it? How is it proven in a court of law?

Joe Escalante: Never heard of it. But I have heard of Fraudulent Inducement. That is basically tricking someone into signing a contract through fraudulent statements or actions. It can be grounds for termination, rescission, or other contract remedies. It’s proved through evidence that it happened.

Jimmy: Bought a keg and brought it to a party. Party got busted and i got furnishing to minors… i put signs that say you must be 21 years or older to drink… what do I do

Joe Escalante: Well, technically, if a liquor store put that sign up, but then let toddlers come in and drink all the Four Loco willy-nilly, they’d be in a heap of trouble. And so my friend are you.
Get a criminal defense lawyer if you don’t qualify for a public defender.

Cynthia: If I have been separate since 2005 and my ex does not want to sign the divorce papers can a judge order him to sign them

Joe Escalante: No, but you can obtain a default divorce if he doesn’t show up to the hearings. You are now in the realm of a “contested divorce.” It happens all the time. Just follow the court’s instructions, and maybe read this book:

Shannon: Hello Joe, my fiance is trying to get into Merchant Seaman but he has a criminal record. He was not convicted for either one and the charges were dropped. Two are in the same category so it seems like one charge. So what can he do to expunge them? Or can only 1 be expunged?

Joe Escalante: This involves an application process and usually a hearing in front of a judge. Check here to get started, but you’re probably going to need an attorney to be successful.

Robin: How long do u have to file for small claim against a Landlord for security deposit that have not been return to you.

Joe Escalante: This varies by state. Check with renter’s rights organizations in your state. It’s probably 4 or 5 years.

Theresa: Bought a car within 30 days engine gone what can I do

Joe Escalante: It depends on the terms of sale if it was a used car. Most are soled “as is.” If it was a new car, and they wont replace it, you may need an attorney experienced in state Lemon Laws.

Jerry: Hi Mr. Escalante, Here’s the scenario I’m curious about… “person A” represents themselves as a property owner in New York, then hires a real estate broker (Realtor) to be their property manager to manage a property, but then it is revealed that “person A” is not the owner nor are they authorized to act as a landlord/manager, etc., how should the Realtor respond? The tenants are now paying the Realtor/Broker rent (& contacting for maintenance issues, not the actual owner or the unauthorized “person A”. Thank you.

Also, the actual owner on record is unreachable. It’s very difficult to find the actual owner.

Joe Escalante: Crazy. I would notify the district attorney to file criminal charges. They probably wont, but that’s what should happen. Civilly, it depends on the damages. And you have standing issues. Only those who have been harmed have “standing” to sue.
If Person A is profiting from rents to property he doesn’t own, it’s called conversion, or theft.

Jerry: Think the Realtor/Broker should still continue to collect the rent in mean time? Otherwise, tenants won’t have anyone to legitimately pay rent to!

Joe Escalante: They can place it in an escrow account. Talk to the bank about how to set one of those up.

Tan: Is it illegal to publicly “shame” someone if you posted pics of someone and accurately(not falsely) listed misdeeds or unsavory acts to make others aware such as posting flyers on telephone polls, lamposts, bus depots and or even purchasing a small billboard sign to get the point across? Thanks Joe.

Joe Escalante: If it’s true, that is a defense to a defamation claim. But skanks have pimp boyfriends who kill people for less, so let’s just drop it.

Mony: My children’s father is about 30K in arrears for support. The original support order from 2005 is $194.50 per week. He hasn’t worked a day since then and sues people for a living by getting himself injured. I have filed for contempt so many times for non-payment and he fought it saying he is appealing SSI’s denial decision. I proved to the courts that he has received income from these settlements, after which he spends all of the money before the kids can get anything. The magistrate ordered a temporary purge payment of $200 per month which is hardly anything for 3 kids. He didn’t even pay that and I was about to file for contempt again until he recently was approved for disability. Now, our 3 boys got a lump payment of $5K each and disability is paying 106.00 per month for each child. He also got a lump sum for a much larger amount and is now receiving monthly payments from disability. Here’s my question:

“Disability is paying $318.00 per month on his behalf for 3 kids which is still $460.00 short of the original order, plus the arrearages still remain. What is the possibility of garnishing his disability payments to get back the arrearages and make the monthly payment close to the original order, without having to re-evaluate the support order?”

Joe Escalante: You would need an attorney to go after those disability payments. That’s not easy. It probably wont work because the government has a huge interest in keeping people on disability at least alive.

Carlos: Can I sue the store due to race discrimination? Store in Utah, thank you

Joe Escalante: Yes. Get a consultation with a civil rights attorney in your area.

Christie: so how can i get compensation for my 4 yr old daughter that was left on a school bus last month she crossed a very busy street and was found by a good sumeritin who called the cops and brought her home to me not knowing what happened to her in the 3 hours she was not in school

Joe Escalante: You can recover damages from the school district if they are certain and provable. If it was a willful negligent act, you may get punitive damages, but if it was an unintentional mistake, you don’t get those.
All this requires an attorney. Consult with a plaintiff’s attorney to see if you have a case.

Melissa: Hi Attorney Escalante. My dad has a house with an outstanding mortgage and he wants me to take over the payments. The problem is that the house & mortgage was aquired while he was married. (He currently is still married) Both him and his wife are willing to sign over their rights to the home to me. What legal document can I put in place so that in the event anything happens to my dad, the house will go to me? Thanks.

Joe Escalante: They should quitclaim the house to you now, and you can let them live there, rent free. Or they can place it in a trust with you as the beneficiary upon death. This is what most people do. You could also transfer it to a Life Estate Deed in most states. They would be the Life Tenants and you would be the Remainderman. The term of the tenancy would be measured by whatever you want, his life, or her life, or whoever lives longest.

LegalZoom: That’s it for today’s Free Joe. More free legal advice with Joe Escalante coming up on Friday: Have a safe and happy July 4th!

ShareShare on FacebookTweet about this on TwitterShare on Google+Share on LinkedInEmail this to someone

Sign up for the LegalZoom newsletter!

Written by

July 5th, 2012 at 5:52 am