What Does Fair Use Mean?

A San Diego copyright attorney at Gehres Law Group, P.C. can advise you on your rights as a copyright holder. We can also advise you on limitations of copyright protections, including fair use. If you have been accused of copyright violations, our legal team will also defend you if you fall within a fair use exception. 

What is Fair Use?

Copyrights protect creative works, such as books and artwork. When a creator copyrights material, the creator or those he assigns has exclusive rights to publish, perform, print, or record the creative material. This could include songs, plays, books, photographs, or any other type of original creative work.

While copyright protections are important to keep intellectual property secure, it is also necessary to ensure that constitutionally protected rights of free expression are not stifled by copyrights. The Fair Use doctrine attempts to balance the interests of copyright holders against those who wish to criticize the work or who otherwise wish to comment or build on previously copyrighted material.

Under the fair use doctrine, it is generally permitted to use certain copyrighted works without license from the copyright owner for specific purposes. For example, copyrighted works can be used without license to criticize those works, to create parodies, to make relevant news reports, and for permissible teaching, research and scholarship.

The fair use doctrine does not excuse all unlicensed use of copyrighted materials. For example, while there are fair use exceptions that allow copyrighted works to be used for teaching and scholarship, it likely would not be fair use for a teacher to make 20 photocopies of a full copyrighted textbook and hand the copyrighted pages out to students so they don’t have to purchase the book.

There are four key factors that are outlined in Section 107 of the Copyright Act which are used to determine if the use of copyrighted material falls within fair use exceptions. The factors that determine if the use of the material is permissible or a violation of intellectual property laws include:

• The purpose and character of the use: This factor relates to how the copyrighted material is used and what it is used for. Courts tend to provide more leeway when the use of the copyrighted material is of a non-commercial nature, rather than a commercial nature. Courts also consider whether the work was transformed, which would mean that the user of the copyrighted material added something new or changed the character of the work. The more transformative the work is, and the less likely it is that the new work will serve as a substitute for the original use of the work, the more likely it is the court will find fair use.
• The nature of the copyrighted work: The court considers the degree to which the copyrighted work is considered creative expression. This means, for example, that the court is less likely to find that the use of a novel or song is fair use compared with a technical or news article.
• The amount of the copyrighted work used in relation to the portion of the whole: Copyrights will look at how long the copyrighted material is and how much of it was used. For example, while it might be permissible fair use to include 10 lines of a 100 page book in a blog post reviewing the book, it might be less permissible to include all 10 lines of a 10 line poem. The court may also find copyright laws were violated even if only a small section of the work is used if the court finds that the section which was used is considered to be the heart of the work.
• The effect of the use on the market for the original: Courts will consider whether, and to what extent, people might be discouraged from purchasing the original copyrighted work as a result of the unlicensed work. If the unlicensed work harms the market for the original, it is less likely to be considered fair use.

Getting Help from A San Diego Copyright Attorney

Gehres Law Group, P.C. represents copyright holders, those who have used copyrighted works without a license, as well as those who wish to claim their actions were justified under fair use. Give us a call at 858-964-2314 or contact us online today to find out more about how one of our San Diego copyright attorneys can assist you when legal issues arise involving copyrighted works. We offer a complimentary consultation for new clients.

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Steps to Incorporating in California

San Diego corporate lawyers assist your company in incorporating new business entities. Incorporation carries many benefits, including protection from personal liability and tax flexibility. To reap the rewards of being incorporated, the proper process must be followed in accordance with California law. What many business owners fail to realize is if they do not meet all of the legal requirements of proper formation and maintenance of their business entity, they lose most, if not all, of the benefits of incorporating. Gehres Law Group, P.C. is here to help. 

Steps to Incorporating in California

To form a corporation in California:

• Determine if your desired company name is available. As the California Secretary of State explains, you may not use a name for your corporation that is too similar to the name of an existing company or that is misleading to the public.
• Determine whether to form a C-corporation or S-corporation for tax purposes. Both provide liability protection, but there are more restrictions on who can own S-corporations. Click here for more information on these ownership restrictions. Corporations are taxed differently depending upon whether they are treated as a C-corporation or S-corporation. S-corporations do not pay corporate tax, but must file an information return annually. Profits and losses are passed through to owners of an S-corporation. C-corporations create risks of double taxation since the company is taxed on profits and shareholders are taxed on profit distributions.
• Complete and file Articles of Incorporation. Articles of Incorporation are available from the website of the California Secretary of State . There are different forms for general stock corporations; closely held corporations; nonprofits and other specific types of corporations.
• Pay a filing fee: A $100 filing fee is required for most companies that wish to operate as a corporation in California.
• Comply with tax obligations: Corporations should obtain a federal employer identification number to properly comply with IRS rules and to be able to open bank accounts in the company’s name. California corporations are also mandated to pay $800 or more in taxes to the California Franchise Tax Board annually.
• Election of S-corporation Status: If you have chosen to form an S-corporation, your first step is form a C-Corporation and then elect S-corporation status with the Internal Revenue Service using Form 2553.
• Complete a Statement of Information. A statement of information is due 90 days from the date a corporation was registered. A statement of information is also due each year thereafter once a corporation has been created.
• Hold shareholder and director meetings: Among other things, shareholders must elect a board of directors and the directors must pass resolutions for the new company, including approval of Bylaws, which dictate how your company will operate. Bylaws should be created even if you are the only owner and only employee of the company. All corporations must maintain corporate formalities – which means taking steps to operate as a legitimate corporation – to benefit from tax flexibility, protection against personal liability for company obligations, and other advantages of incorporation.
• Obtain required business licenses. Depending upon the nature of the business that will be operated and where it is physically located, a newly formed business may be required to obtain a business license from the county as well as from the city where business will be conducted.
• Register with the California Employment Development Department (“EDD“): This step is necessary only if the corporation will have at least one employee.
• Obtain a Seller’s Permit to remit sales tax: The California State Board of Equalization regulates sales tax collection and remittance. If your corporation will be offering services and not products, it is generally not required to obtain a Seller’s Permit.

Getting Help from San Diego Corporate Lawyers

The knowledgeable and trusted San Diego corporate lawyers at Gehres Law Group, P.C. provide representation and assistance with the incorporation process for individuals and entities in a wide variety of industries. Give us a call at 858-964-2314 or contact us online to find out more about how our legal team can work with you to select and form the business entity most advantageous to you.

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How the Battle-of-the-Forms Impacts Your Contract

New Business Laws in California in 2017

The business litigation lawyers at Gehres Law Group, P.C. provide effective assistance in responding to allegations in civil court, as well as initiating lawsuits and other claims to proactively protect the rights of clients. Litigation can arise between a company and suppliers, employees, customers, or anyone else with whom a company has a relationship. 

California’s business and employment-related laws often determine the outcome of litigation involving of all sizes. The law is constantly evolving and changing, so it is critical to retain business attorneys who stay abreast of the laws in order to understand your rights and obligations under state and federal law, and plan strategies accordingly.

As Mercury News explains, many new business and labor laws were passed in California in 2017. Employers are expected to know these laws to avoid regulatory action, to avoid litigation that could arise due to a violation, and to implement new requirements and otherwise remain compliant with our evolving regulatory environment. Some examples of new laws in California affecting businesses in 2017 include the following.

Forum Selection Laws in Employment Contracts

SB1241 is a law stipulating that an employee who lives and works in California cannot be made to sign an employment contract that specifies another forum to resolve complaints or that forces a dispute to be decided under the laws of a different jurisdiction.

The purpose of this law is to prevent employers from requiring employees to arbitrate or litigate disputes in a jurisdiction outside of the state of California. Employers could otherwise mandate employees pursue their grievances in different state courts, or could mandate an employee’s claim be decided under the laws of a different state, effectively preventing employees from receiving the benefit of their home state’s laws.

Because California laws generally are very protective of workers (while the laws of other jurisdictions may be skewed to protect big business), ensuring California claims are resolved under in-state laws and by in-state courts is a significant benefit to workers, but can also cause big headaches for California employers who do not remain current on applicable laws.

Amendments to the State’s Fair Pay Act

AB1676 and SB1063 both amend the Fair Pay Act in California. SB1063 extends the Fair Pay Act to also cover ethnicity and race, while AB1676 prohibits prior salary from being used as an excuse for an opposite-sex employee being given lower pay.

Under previous laws, employers could potentially argue they paid a woman less than a man, despite the woman doing a comparable job, because the woman’s salary in previous positions was less than the man’s salary in prior positions. This is no longer permitted as an meritorious argument in defense of pay disparity. However, other bona fide job-related reasons which may justify a company paying less compensation to a worker of the opposite gender do remain, such as differing levels of experience.

New Protections for Sexual Assault, Stalking and Domestic Violence Victims

AB2337 requires employers to provide notice to workers who are victimized by stalking, sexual assault or harassment that those employees have a legal right to take time off from work. Any business with 25 employees or more is required to provide such employees with notice of their right to time off.

Employees may take this time to obtain medical treatment, make a safety plan, undergo counseling or take advantage of other services. In addition, employers may not retaliate against or otherwise penalize employees for taking unscheduled absences due to domestic violence, sexual assault or stalking as long as certification is provided to the employer indicating the time was missed for a covered reason.

New Protection for Immigrants

SB1001 prohibits employers from making requests for immigration documents that are more invasive than those required by law. More specifically, an employer is not permitted to ask for any documentation related to immigration status besides the minimum mandated by state and federal laws.

Employers are also not allowed under SB1001 to refuse any documents that reasonably appear, on their face, to be genuine.

Getting Help from Business Litigation Lawyers

These are just some of the many new laws passed in California affecting the rights of employers and employees. To ensure you understand and are in full compliance with applicable laws and regulations, contact the knowledgeable and trusted attorneys at Gehres Law Group, P.C. Whether you wish to pursue a claim or need a solid defense of claims, our business litigation lawyers provide each client with effective representation at every turn and ensure our client’s interests always come first.

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Do You Need a San Diego Business Lawyer if You’re Forming a Partnership?

A San Diego business lawyer can provide assistance if you are forming a partnership to conduct business. There are significant advantages to operating a business with a partner, including combining talents and sharing risk. However, depending upon the type of partnership, there are also risks – including the possibility of becoming legally responsible for actions taken by any or all of your business partners. 

Making the right choices during partnership formation is vital to protecting your personal wealth and your business interests. Gehres Law Group can help you with all aspects of partnership formation, whether you are starting a business or expanding an existing company and considering transitioning to a partnership. There are a few key reasons why it is important for you to get the proper legal help with partnership formation as your company gets off the ground.

An Attorney Can Assist you in Determining If a Partnership is Right for You

If you wish to do business with others, a partnership is only one of your options for shared ownership. You should also consider incorporation as well. Gehres Law Group can explain the different types of business entities that allow you to do business with other people so you can determine which type of business structure is best for you.

An experienced San Diego business lawyer at our firm can also assist you in choosing between a general and a limited partnership. A limited partnership can offer more protection for the personal assets of limited partners, as their potential loss will be restricted to their investment provided they actually act as limited partners. In a general partnership, a company bankruptcy could result in personal bankruptcy and judgments or claims against the company could put personal wealth at risk.

A San Diego Business Lawyer Can Help Comply with Legal Obligations for Partnership Creation

If you determine that forming a limited or general partnership is the best approach for structuring your business, Gehres Law Group will assist you in complying with all legal requirements within the state of California. For example, as the California Franchise Tax Board explains, every partnership which earns income or does business in California is required to file a Form 565, Partnership Rules of Income. Limited partnerships also must pay an annual tax to the state of California.

When a limited partnership is formed, a certificate of limited partnership must also be filed with the Secretary of State. And, any business that formed a limited partnership in a different state which decides it wishes to do business in California must first register with the Secretary of State before actually doing any local business.

San Diego business lawyers will advise you on the types of paperwork that must be filed before you begin operations, and can help you to understand the legal implications of partnership formation. Gehres Law Group will also explain how your partnership formation will affect your tax obligations so you can ensure you comply with state tax rules and IRS mandates.

A San Diego Business Lawyer Can Assist With Creating Partnership Agreements

If you form a partnership, it is advisable to create a partnership agreement. This agreement will spell out the terms of your relationship so you can reduce the chances of conflict once business operations begin. It is up to you and your partners to establish how the business partnership will be structured, how responsibilities will be shared, and how profits and losses will be shared. Gehres Law Group can assist in negotiating on these issues and creating a legally enforceable document so your rights are protected.

We can also help with other important contracts and paperwork that you may wish to put into place to protect your interest in the business and to reduce the chances that a conflict could adversely impact operations. Other documents that you may wish to produce could include, for example, a buy/sell agreement and employment agreements so it is clear what each partner’s specific job responsibilities will be within the organization.

Getting Help from San Diego Business Lawyers

Gehres Law Group has provided assistance to many clients in forming business partnerships and in forming other types of business entities including S-corporations and C-corporations. A San Diego business lawyer at our firm can provide you with the information you need to determine if forming a partnership is right for you and can guide you through the process of forming a partnership so you can maximize the chances your business relationship will be a successful one. To find out more about how our firm can help you, give us a call at 858-964-2314 or contact us online today.

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What is Required to Register a Trademark?

A trademark lawyer at Gehres Law Group, P.C. can help you to determine if you can register a brand name, symbol, words, or phrase under U.S. trademark laws. If so, we will provide unmatched representation through the process of registering your trademark. There are certain legal requirements and limitations on what can be trademarked, so it is important to work within the rules to protect your company’s valuable intellectual property. 

What is Required to Register a Trademark?

Trademarks must be registered with the United States Patent and Trademark Office. To register your trademark, you must comply with the following requirements:

• The actual owner of the trademark must apply for registration. The owner could be an individual, a corporation, a partnership or another legal entity that is recognized under the law. The trademark’s owner is defined as the person who controls the services or the goods that are sold under the trademark.
• The application must contain information about the actual owner of the trademark. Information that must be submitted should include the type of entity as well as the entity’s citizenship status. Non-citizens are permitted to register trademarks.
• The owner must intend to use the trademark in commerce or must be utilizing the trademark in commerce. If the owner is already using the trademark and has placed it on commercial products or in ads for services, the owner should explain this use in his or her trademark application. If the owner is not yet using the trademark in commerce, the owner may file an intent to use application and must make a good faith statement of an intent to use the trademark in a commercial context. Once the trademark is in use, the owner will need to file a Statement of Use/ Amendment to Allege Use form in order to officially register the trademark with the U.S. Patent and Trade Office.
• The owner must submit a drawing of the trademark and, if the application for the trademark is based on actual use, should also submit a real-world example of how the trademark is being used in connection with goods or in connection with the provision of services. Submitting a mailed ad or a brochure using the trademark is considered an acceptable real-world example, or a valid “specimen,” of the trademark, but ornamental use of the trademark, such as its image on a tote bag or on a pen, is not typically considered to be an acceptable specimen unless documentation was included to show how the bag or pen were used in actual commerce. Submitting the specimen showing the trademark in use does not satisfy the requirement to submit a drawing of the trademark; a separate independent drawing must also be submitted along with the remainder of the trademark application.

The applicant must comply with strict rules regarding the timeline for filing forms and documentation with the U.S. Patent and Trademark Office. Because of the strict deadlines, the Patent and Trademark Office recommends hiring an attorney before beginning the process of applying for a trademark.

Getting Help from A Trademark Lawyer

If you wish to protect your brand name or to protect any identifying symbol, service mark, words or phrases, you should reach out to a trademark lawyer as soon as possible. Gehres Law Group, P.C. will offer advice on whether your intellectual property can be trademarked and will assist you with the trademarking process so you can maximize your chances of the process going smoothly. To find out more about how our legal team can help you to secure trademark protection, give us a call at 858-964-2314 or contact us online today.

For additional information concerning benefits of obtaining trademark protection and considerations in choosing trademarks, click here and here.

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What is Considered a Material Breach of Contract?

Our skilled San Diego business litigation lawyers at Gehres Law Group, P.C. can provide representation in breach of contract claims. Contracts are agreements created between private parties, such as between individuals and businesses or between two business entities. A valid contract creates rights and obligations between the parties to the contract, and provides various remedies when contractual obligations are breached, either expressly or by default based on applicable laws. All parties to a contract must comply with the written terms of the agreement and can face civil action if they fail to perform, unless they have a legally valid defense. 

There are a number of remedies available to a party to a contract in the event of a breach. The remedies that may be successfully pursued by a plaintiff in a breach of contract case will vary depending upon whether the breach is a material one or not, so those involved in contract proceedings should consult with the civil litigation lawyers at Gehres Law Group, P.C. as soon as possible to find out what type of breach likely occurred and what kinds of legal action they can pursue.

What is Considered a Material Breach of Contract

California law sets forth the essential factual elements of a breach of contract claim in California Civil Jury Instructions (CACI) section 303. According to the relevant jury instruction, a plaintiff can prevail in a breach of contract claim by proving:

• The plaintiff and defendant entered into a legally valid contract.
• The plaintiff fulfilled all contractual obligations or was excused from fulfilling said obligations.
• The specific conditions in the contract, if any, required for the defendant to perform his part of the contract were either excused or had occurred.
• The defendant failed to fulfill some obligation that the contract required or the defendant did something that was prohibited in the contract.
• The plaintiff suffered harm as a result of the failure.

When the plaintiff proves these elements of a breach of contract claim, the plaintiff could obtain monetary damages for failure to perform if the plaintiff can prove actual financial loss. The plaintiff could also demand other remedies, such as specific performance, which would involve the court ordering the defendant to fulfill his obligations under the contract.

While a breach of contract claim can arise from both a material and a non-material breach, the parties to a contract also have additional remedies available in the event of a material breach. For example, if there is a material breach of contract by one party, the other party can be discharged from his or her duty to perform. This makes it important to understand whether a breach was a material one or not.

The question of whether a breach is material or not is a question that must be considered in each case, given the unique facts and circumstances of that particular claim. The general rule is that an assessment of whether a breach is a material breach or not is made on the basis of how important and serious the breach was and is made on the basis of whether it is likely that the party injured by the breach has a low or high probability of the breaching party substantially performing the contract. If the breach goes to the heart of the contract and affects the very thing for which the parties created and entered into the contract, then the breach will typically be considered a material breach.

In Brown v Grimes, the California court made clear that a material breach of any part of a contract could constitute a material breach of the contract in full.

Getting Help from San Diego Business Lawyers

San Diego business lawyers at Gehres Law Group, P.C. can offer comprehensive, personalized advice on breach of contract claims and on all legal issues arising under contract law. Whether you require assistance in understanding your rights and obligations in a contract, or are suing or being sued for a failure to perform, our business lawyers can provide the advice and advocacy you need to protect your interests. To find out more about the ways in which our legal team can help you, give us a call at 858-964-2314 or contact us online to today.

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