Contracts: Myth #1 – A Handshake Seals the Deal.

It’s great to have trust…I’m a fan of trust. Success in business unquestionably requires some willingness to cooperate with and have faith in others. However, when it comes to business, I cannot tell you how many oral agreements have led to misunderstandings and legal disputes; the details of which can be difficult or impossible to prove in court. In certain situations, written agreements are mandatory…good to know just in case you wake up one day and find yourself in a lawsuit.

You should put most every agreement in writing- some examples are:
• Partnership Agreements: They spell out terms and expectations of owners and help to settle in advance what happens if one owner wants to leave the business or when partners disagree about things. (that never happens right?)
• Employee Agreements. Make sure that when hired, employees sign nondisclosure agreements so they keep your valuable trade secrets (pricing, formulas, recipes etc.) confidential.
By Maine law, you must put the following in writing:
• The sale of goods for more than $500
• The sale of real estate.
• Agreements that take longer than one year to complete.
• Home Construction Contracts for more than $3,000 in materials and services are now required to include specific information and be signed by both parties.
Many business owners try to save money by doing everything they can by themselves including contracts and other agreements. Doing some legwork can really reduce the cost of legal fees – but are not a substitute for a good legal review to make sure that your interests are well protected.

Be Diligent- Be Proactive- Be Safe.

Regards,
Andy

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5 Surefire Ways to Scare off Prospects with your Contract

You work hard to develop your business – don’t let an opportunity slip through your hands because of an inadequate contract.

 Here’s WHAT NOT TO DO WHEN PRESENTING A CONTRACT:

DON’T-

  • Make it all about you: Only include protection for yourself and make no mention of what the other party is guaranteed to receive.

 

  • Present a lengthy and over-written contract: Present them with a 20 page contract full of legal jargon and small print, when a six page would have provided the same level of protection.

 

  • Don’t take the time to understand your own contract: Avoid questions of clarification.

 

  • Overstate your ownership of Intellectual Property: Make it know that they are darned lucky to be working with you and your creative mind.

 

  • Make them feel untrustworthy: Interrogate them and ask for irrelevant information like Social Security numbers and fingerprints.

 

Always take measures to protect yourself and your intellectual property because everything that happens from start to finish is based on the contract.  Remember that the purpose of a contract is to describe what is expected by each party.  Although you need to make sure that all details are included in your agreement, this can often be accomplished in a reasonably brief document that everyone involved can understand.

Andy Zulieve is a business attorney & Intellectual Property Specialist with over 25 Years experience. His areas of practice are: complex contracts, construction law matters, trademark & copyright, trade secret, unfair competition and business structuring. From his office in Lincoln County Maine, he serves clients both nationally and internationally.Andy_edited-1

 

What is a Trade Secret?

What is a Trade Secret?tradesecretexample

All states have statutes that provide civil legal remedies for misappropriation of trade secrets. A trade secret generally consists of any information that derives independent economic value from not being generally known to the public, and not readily ascertainable by proper means by anyone one who would profit from its disclosure and use, and for which the trade secret proprietor has taken reasonable measures under the circumstances to maintain its secrecy. This universal definition is broad and essentially includes virtually anything that provides a commercial advantage over competitors because of its confidential status. The recipe for Coca Cola® is an example of perhaps one of the most aggressively guarded trade secrets in the world.

 

Protecting a Trade Secret.

From a business perspective, prevention is the lynchpin of protection. Typical steps to reduce the likelihood of misappropriation or inadvertent disclosure include: (1) identify, label and segregate all confidential information, (2) make liberal use of confidentiality agreements with employees, contractors, temporary personnel, and non-disclosure agreements with vendors, suppliers and potential customers, and (3) limit access to confidential information [locks, passwords, and encryption].

 

Effect of Misappropriation.

State statutes and a nationwide legion of interpretive case law make it clear that trade secret status is not lost because it has been misappropriated, provided that the proprietor is found to have taken reasonable steps under the circumstances to protect it. This is important within the contest of bringing and maintaining lawsuit. However, as a practical matter once the secret nature of the information has been compromised, its inherent value moving forward is lost forever.

 

IDENTIFY ALL TRADE SECRETS

 

IMPLEMENT AND ENFORCE STRINGENT PROTECTIVE MEASURES

Can I be sued for using anothers’ work?

Ever wonder if that artwork you copied for framing..
OR… the music you play in your restaurant,
OR… the advertisement  you placed in a
magazine featuring that cute photo you found online…
Could get you into legal trouble?
Can I be sued for using someone else’s work?
The concept of copyright and copyright infringement is complex and often confusing.  Absent a statutory exception such as “fair use” one must obtain written permission from
the creator of an original work of authorship to reproduce the creator’s work.
 What is Fair Use Doctrine?
The “fair use doctrine” embodied in the U.S.Copyright Act of 1976, as amended, allows for the limited use of another’s original work of authorship, including quotes,. for purposes such as commentary, criticism, news reporting and scholarly reports.   But for this exception, any unauthorized use would be an infringement of the author’s copyright in his or her original work of authorship.

How can I obtain a Copyright-
Under the current U.S. Copyright Act, copyright subsists in an original work of authorship upon its creation and fixation in a tangible form.  With certain exceptions copyright endures for the life of the author plus 70 years.  There is no renewal of copyright.  At the expiration of the copyright term, the work goes into the public domain for all to use.  Registration of copyright, while not required to perfect copyright, provides public record notice of copyright and is necessary to maintain a lawsuit for copyright infringement in federal court.

DON’T FORGET INTELLECTUAL PROPERTY!

How to Handle Intellectual Property in Estate Planning

 By Andrew J. Zulieve, Esq.

IMAGE FOR MARCH2016BLOGIf you are an author, artist, owner of a business or inventor, protection of your company’s valuable intellectual property rights should be an essential component of its business plan.

 

 

 

 

 

 

 

Certain types of intellectual property, such as business ideas, trade secrets, visual art, literary and musical works, inventions, computer programs, designs of clothing and architecture, are protect-able under applicable federal or state laws for copyright, trademarks, trade secrets and patents. Accordingly, when discussing your estate plan with your attorney, don’t forget to include these valuable assets in that planning process.

The value of these intellectual properties may constitute a significant part of the value of a person’s total estate, so it is crucially important to discuss these issues with an attorney with expertise in intellectual property law, who will work in conjunction
with your estate planner.

Here are a few of the important considerations:

1. Does your will or trust include the transfer of intellectual property interests?

2. Does your life insurance policy include provisions for the value of such interests?

3. Does the executor or trust have authorized power to dispose of or manage these     interests?

http://www.zulievelaw.com

 

Using Popular Music in Advertising

 

By: Andrew J. Zulieve, Esq.

 Recently, an attorney called me to explain the potential legal issues facing her client, which involved using a musical score for advertising purposes.  I represent many artists and composers, so the attorney’s question had considerable relevance to my practice and my clients. The issue before me implicated copyright issues, which never seem to have simple answers. Here are a few brief explanations:

 Brief History of Copyright Law

Copyright law in the U.S. is provided for by federal statute which implicates both the original Copyright Act of 1909 and the new Copyright Act of 1976, which became effective in 1978. In either case, copyright confers on the owner six exclusive rights that can only be transferred [e.g. a license] in writing. Put another way, copyright exists separately and apart from the actual work. For example, buying a record gives ownership of the physical record and the right to listen to it, but does not transfer any of the exclusive copyrights outlined below.

Your Rights

Copyright protects original works of authorship from unauthorized use by others.  Under the existing Copyright Act, the copyright owner has the exclusive rights to do the following: (1) reproduce the work in copies or phonorecords, (2) prepare derivative works based upon the original work, (3) distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental or leasing, (4) perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion picture and other audio-visual works, (5) display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual works, and (6) in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.  Under the old act, copyright was perfected upon publication of an original work with proper copyright notice.  Under the new act, copyright is perfected upon the creation and fixation of an original work in a tangible form.

There are several key factors to consider including:

 (1) Whether the musical score is protected by copyright-

 (2) When will it expire?

 (3) From whom should a license to use the work be obtained?

Determining the expiration date of a copyright can be complicated and, depending on when the work was created, may require reference to both the 1909 and the 1976 Copyright Acts.

 Generally speaking

The creator of an original work of authorship owns copyright in it.  However, copyright in musical compositions and books often may be owned by the music company or book publisher.  In addition, the owner of copyright in musical compositions often hires the services of one or more agencies to license and obtain royalties for the right to perform a copyrighted work, which includes transmission of the work by T.V. broadcasts or via the internet [The American Society of Composers, Authors and Publishers (ASCAP), BMI, and SESAC), or to issue “mechanical licenses” to use a copyrighted work on CDs, records, tapes and certain digital configurations (Henry Fox Agency).  If a business or person desires to use a particular musical composition for either one of these purposes and the work is listed in the agency’s catalogue, then a license must be obtained from that agency.  However, licenses for one or more of the other exclusive copyright interests must be obtained from the actual copyright owner.

 Ultimately, I determined that the musical score remained subject to valid copyright and was listed in the ASCAP catalogue.  The attorney’s client had to obtain a performance license from that agency or risk exposure to a costly federal court copyright infringement action for any unauthorized use of that composition. 

About the Author:

Andrew Zulieve is a business attorney & Intellectual Property Specialist. He grew up in the Washington D.C, area, was a law clerk for Finnegan Henderson, one of the world’s largest intellectual property firms headquartered in Washington, D.C. and was a trademark examining attorney for the United States Trademark Office.

His areas of practice are: complex contracts, construction law matters, trademark & copyright, trade secret, unfair competition and business structuring. From his office Zulieve Law LLC in Midcoast Maine, he serves clients both nationally and internationally. He can be reached at ajzlaw@roadrunner.com