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Can I Copyright a Saying? And More Free Legal Advice – Free Joe 8/31/12

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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.

Jenna: Hi Mr. Escalante,

Do the copyright laws protect sayings printed on shirts? Or can anyone swipe them and reprint them?

Thank you for your time!

Joe Escalante: That depends on if the saying is “protected.” Sayings like “That’s hot” or “you’re fired” may be too generic, but think about “just do it.” Seems generic, but Nike will kill you.

Savark: I designed these things for a sci-fi property years ago as a work for hire. They were never meant to be used as concept designs for a product and now I see these designs all over the place. Do I have any legal claim to my own design?

Joe Escalante: This is a pretty fascinating issue you have here. If the company with which you contracted to do the designs fraudulently induced you into signing a work for hire under the impression you were just making some stuff for science fiction, but
then they exploited your work in some other way, which if you had known, would have changed things, then you have a case against them. However, it would have to be the production company for the sci-fi stuff that sold the concept to the headphone guys. They have standing. You don’t. Your case is against the sci-fi company, if they did in fact burn you.
However, if the headphone guys stole it from the sci-fi guys, that’s between them. And it’s not a great case for many reasons. They would need to challenge headphone guy’s design patent. That would be a loser. On the brighter side, I use a Motorola version of your futuristic design every day, and I thank you. Millions of people will honor your work for generations. Your name will be placed on the protected scrolls when my people take over this planet.

Jayson: If I want to create an LLC for my business but want separate divisions, what is the best way to do that?

Joe Escalante: Separate D.B.A.s are often used for this, owned by a single LLC. Check with your tax pro so you don’t do something tragic.

Kumar: What should one do to turn their side business into a real business. I clean aquariums, and would like to know what I need to do to become an official business?

Joe Escalante: The first step is to decide you are going to take the risk. You can always start as a sole proprietor, with a DBA. But make sure you have good tax advice. It’s more important in many ways than legal advice when starting a business. Later, a
s you grow, you can worry about incorporating, or forming an LLC. But for now, just make sure you have some insurance, and tax advice. Also, check with the cities and counties where you do work in about business licenses.

Michael: Interested in setting up a NPO, are the laws for setting up a NPO drastically different from state to state? I notice LegalZoom doesn’t help process incorporation in NY State due to the lengthy process? How bad is it really?

Joe Escalante: It is so bad, Legalzoom wants no part of it evidently. You deal with the secretary of state in the process of forming a non-profit and acquiring tax exempt status. The secretary can be a nightmare if she wants to be. It will always vary from state to state.

Kimberly: I was terminated on my day off , called vulgar names by my boss ( who happened to be my best friend ) and she also threatened me bodily harm and her reason was to unemployment was because I was drinking excessively but it was my day off and I has been drinking beer by the pool – is that legal

Joe Escalante: I don’t know a lot about the details here, or the history, but my sense is that this would all be handled better by an apology from someone to someone, rather than fling a claim for wrongful termination at the Riverside office of the State Labor Commission (which is what you would do, if you decide to go that route.) If it works, please toast me at your next pool side event. They sound amazing.

Aniza: Hi Joe, I am starting a clothing line and will be selling my items through my online store. The brand name and company name are a bit different. Should the company name be the LLC and the Brand name then be trademarked under the company?

Joe Escalante: I think that’s the best way to do it. You are trademarking a name in association with a specific product to prevent others from making a similar product with the same name. In the future you may want to trademark the name of the company as well, but start with the brand.

Annabelle: Hi Joe,here i am again,my neighbors seem provoking us,I see cigarette butts inside our driveway w/c so far no men or not one of us smokes,do I have to make reports w/ these to authority for endangering our safety esp,these cicarrette butts still might be lighted and will hit the wall of our house and can cause a fire ….I ‘ve seen these many times ,I even took photos of these cig butts in our driveway.Pls advise…thanx much.

Joe Escalante: I think this is just life in the big city Annabelle. You can contact the city attorney’s office and see if they are violating any smoking bans, but just cigarette butts are not big enough to litigate over. Try a temporary no smoking sign or some death metal music over a loud speaker, and maybe one of those industrial outdoor ash trays you get at Costco.

Sherri: Can I sue someone for abuse? How does that come into play during divorce? I have been diagnosed with PTSD and other anxiety problems as a result of years of severe mental abuse. Can he be held responsible for damages or anything like that?

Joe Escalante: You would have to establish clear and provable damages caused by his actions. If that could be established, he would theoretically be liable for your medical expenses, and perhaps loss of income. It’s a long shot and the expense of litigating it would be huge. The mental anguish involved would be pretty serious as well.
In a divorce case, every litigant is alleging abuse of some kind. You can do it as part of the divorce proceedings and claim your damages as part of the settlement, but saying it’s an uphill battle is an understatement. Listen to your divorce attorney, and do what he / she says. That’s the best thing you can do.

Anthony: Joe, (I’m thinking about starting up a new church) how do I go about incorporating as a non-profit church?

Joe Escalante: This is done through the secretary of state. It’s hard. Use legalzoom. I’m a lawyer, I used them to start one and I couldn’t have done it without them.

LegalZoom: Here’s the link, Anthony: http://www.legalzoom.com/non-profits/non-profit-corporation-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Shycryst: How can I get an annulment only been married for a few months

Joe Escalante: You get the forms from the county where you live and file them. A divorce attorney will make it easier, but it’s possible to do it without one. The grounds for annulment differ in each state, and a lawyer will help make your case.

Lana: I’m having trouble recovering my vehicle from a mechanic. It’s not a matter of my not paying him, it’s a matter of him continually telling me it’ll be ready and then it’s not. This has been going on since September 7 of last year. Yes, a whole year. I’ve researched and come up with a Writ of Replevin, which seems to be used to do what I want, which is make him give me my car back, but I am not certain it’s the right next step. Any guidance or suggestions? I’m in Texas, if that makes any difference.

Joe Escalante: You’re on the right track. With a writ of replevlin, a Marshall should accompany you to pick up your vehicle. Then a suit for money damages can settle the rest. Once you have the car, of course you will have more leverage to get a more favorable outcome.

Trevis: MA Employment Law. Statute of limitations on wrongful termination?

Joe Escalante: It would depend on the theory behind why the termination was wrongful. A phone call to the State Labor Commissioner’s office should get you the answer in your state.

Shelia: Do I need to incorporate in order to handle the sale of another’s literary works not yet copywritten?

Joe Escalante: No. And the term would be “copyrighted.”

Meg: Joe, how does one go about filing for divorce, on a budget in Los Angeles, with Legal Zoom. My friend has already been separated from her husband, although not ‘legally’ for 4 years! How does she proceed?

Joe Escalante: She has to want to do it. It sounds like she doesn’t. People some times take decades to do this. If it’s uncontested, legalzoom can help, and it’s pretty inexpensive. But she has to start the process.

LegalZoom: Here’s a link to get started, Meg: http://www.legalzoom.com/legal-divorce/divorce-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Michael: Can you patent a recipe?! What if you are operating under an LLC can you patent your recipes then??

Joe Escalante: Makes no difference. You can patent a recipe if it is useful, non-obvious, and novel.
Non-obvious is the tricky part. Your recipe can’t just be a list of ingredients. It would have to be an unexpected order, or bizarre way of mixing it up
that no one has previously done. Coca-cola protects it’s recipe, not as a patent, which would have to be released to the public, and would only last 20 years, but through the law of “trade secrets” which can last forever, as long as it remains a secret.

Caryn: Would you recommend going to law school? :)

Joe Escalante: I do, unless you have to borrow money to do it. Then, it’s complicated. In that case, I only recommend it if you can get into a decent school (top 75), have a plan, and you are still young, (under 27). It’s really fun, but the job they give you at the end sucks. The only happy lawyers I know are prosecutors, and the guys that started Legalzoom.

LegalZoom: That’s a wrap for Free Joe. Have a great weekend!

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September 4th, 2012 at 5:59 am