You are currently browsing the archives for the Disclaimers category.
| S | M | T | W | T | F | S |
|---|---|---|---|---|---|---|
| « Jul | ||||||
| 1 | 2 | 3 | 4 | |||
| 5 | 6 | 7 | 8 | 9 | 10 | 11 |
| 12 | 13 | 14 | 15 | 16 | 17 | 18 |
| 19 | 20 | 21 | 22 | 23 | 24 | 25 |
| 26 | 27 | 28 | 29 | 30 | ||
July 23, 2009 by admin.
I ran my own theatre and entertainment production company shortly after graduating from The University of New Hampshire with a B.A. in Theatre. I have also kept in touch with a number of my friends and colleagues from the entertainment industry, including the realms of theatre, film, music, and so on. Recently, a theatre professional in my network mentioned that he was working on a stage musical and wanted to use certain other existing (copyrighted) songs – but with the lyrics changed for satirical effect. He wanted to know if it would be “fair use” of these copyrighted songs to do so. “Fair Use” is a term that is bandied about so much in conversations about copyright that it is important to understand what it is – and is not. If something is protected under copyright, other people are restricted from using it without some sort of license or permission to do so. Simple Example: When you buy a music CD (or, as the technological case may be, buy and download a song on iTunes), you are purchasing a limited license to play that music for your (and, reasonably speaking, your family and friends’) private enjoyment. Under the doctrine of Fair Use, we can use portions of copyrighted works without licenses or permissions to a very limited extent because of our First Amendment rights to express our opinions about things. For instance, reviewers of film, stage, and music can insert small snippets from the work in their review such as may be necessary to review the work. Fair Use, however, is one of the most abused doctrines in our society because of how people misunderstand it. Many people commit outright copyright infringement and try to claim that it is protected by Fair Use. One needs only look no further than YouTube to confirm this. Users post tons of copyrighted material (not their own) on YouTube (especially scenes from TV shows and movies, as well as songs), and then become surprised and upset when YouTube takes their posts down. Many people, in a woeful misunderstanding of copyright law, even seem to think that if they include a disclaimer that the material isn’t theirs and it belongs to someone else, this exculpates them. Nothing could be further from the truth. Indeed, it only serves as an admission that they are knowingly infringing someone’s copyright. They try to claim that this is all covered under Fair Use, but they are wrong. To be honest, many of these people believe that “Fair Use” means that it is okay to break the law a little bit. Unfortunately enough, they misunderstand the very limited extent to which use of these copyrighted materials is permitted. It was refreshing for me, therefore, to hear from someone who had some grasp of the concept. As my colleague was aware, Fair Use most often comes up – and is frequently successfully defended – in the realm of parody and satire. For instance, in one famous case, the United States Supreme Court – in a unanimous decision – reversed a lower appellate court ruling and ruled that the rap group 2 Live Crew did not commit copyright infringement with their parody of Roy Orbison’s Oh, Pretty Woman, even though 1) they used some of the lyrics and the bass line from the original and 2) their song was commercially successful (i.e., making money). Additionally, in another well known case, an appellate court vacated a lower court’s injunction against publication Alice Randall’s parody of Margaret MitchellGone With the Wind – entitled The Wind Done Gone. Still, not even these First Amendment rights to satirize will protect excessive copying. In the latter case, both the appellate court and lower court found that Randall’s parody excessively copied the original Gone With the Wind; in the former case, the Supreme Court remanded the case to determine whether 2 Live Crew excessively copied Orbison’s original song. Only one thing is clear then: Fair Use defenses must be evaluated on a case-by-case basis. Anyone who anticipates asserting a Fair Use defense (and anyone wishing to combat such a defense in their own copyright infringement suit) should consult an attorney right away. Therefore, because of the case-by-case nature of this area of law, the only so-called “blanket advice” I could offer my colleague was the following: When in doubt, get permission (or, at least try). Even celebrated pop song parodist Weird Al Yankovic seeks permission for all of his songs. Ask yourself if it really is truly necessary to have your work be so similar to the original. Often, you can achieve your artistic goals while being truly, 100% original. Talk to an attorney, because if you’re putting this much time and effort into a work of art in which you truly believe, there is no point in skimping on the legal protection to save a few bucks (especially because it could be more costly down the road if you don’t get qualified legal advice).
Joe Stanganelli, Esq.
Beacon Hill Law
Posted in First Amendment, Copyright, Federal Law, Software Law, Art Law, Music Law, LinkedIn, Preventative Law, Intellectual Property, Entertainment Law, Disclaimers | Print | No Comments »
January 29, 2009 by admin.
What do you do if you want a new lawyer and the judge won’t let you have one?
This is the dilemma Wuesi McGowan – a home invasion robbery suspect – faced during his criminal trial.
Mr. McGowan had requested that San Diego Superior Court Judge Jeffrey Fraser remove his public defender, Jeffrey Martin, from his case. Judge Fraser – who had previously denied an earlier motion by Mr. McGowan to let him represent himself – refused.
Fortunately for bloggers everywhere, Mr. McGowan came up with an innovative – and ultimately successful, albeit pretty gross – solution to his problem.
During a mid-morning break in his trial, Mr. McGowan smeared feces on his lawyer’s face and hair.
For good measure, he threw some feces at the jurors too.
Needless to say, Jeffrey Martin is no longer Mr. McGowan’s attorney.
It may also be worth mentioning (i.e., so nobody attacks someone with feces in a courtroom and then says, “Joe Stanganelli told me to do it!”) that Judge Fraser has issued a mistrial and quadrupled Mr. McGowan’s bail because of this incident. Mr. McGowan could also face assault charges for this, er, foul attack.
It goes without saying that if someone (other than a baby) has flung feces at you, you may want to contact a lawyer. And take a shower.
- Joe Stanganelli, Esq.
Beacon Hill Law
Posted in Weird News, Criminal Law, Personal Injury, LinkedIn, Disclaimers | Print | 1 Comment »
January 23, 2009 by admin.
Today’s post is the first in what I expect to be a series devoted to answering some of my readers’ E-Mail to me.
(Note that my Disclaimers in my first post and on my Notices page are still in full force. The following is neither legal advice nor financial advice – and is not intended as such. An attorney-client relationship is neither created nor intended in this and other blog posts. I merely present the below for entertainment and educational purposes for friends and clients.)
This first E-Mail comes from Geri, who runs a law firm marketing company. Geri has been very kind in offering me advice, and here is one such piece of it.
is there a way you can make your hyperlinks open another window rather than take you away from your site? i had to use my back button to get back to your site. usability standards consider hyperlinks that take you away from the original site to result in people reading less. . .especially if they then use another hyperlink in the site you’ve taken them to. (does that make any sense?)
Dear Geri,
That definitely does make sense. Wordpress has been frustrating at times to figure out. Additionally, it has been years since I’ve done any HTML programming, so I have only recently picked it up again. I appreciate my readers bearing with me as I strive to make and keep this blog excellent.
That said, I have recently figured out how to make my links open in a new window. All of the links on the Blogroll should now open in a new window, and all links included in future entries should do so as well. The next time I update the About page, I will similarly update the links within it. Links in blog posts prior to this one have not been updated to include this feature (at least, not yet).
Thanks for your feedback. I appreciate it – and continue to invite my readers to contact me.
- Joe Stanganelli, Esq.
The next correspondence I address comes from a new friend of mine, Richard. Richard works in the financial services industry. In response to my remarks on Suze Orman’s estate plan, Richard writes (over the course of multiple E-Mails):
All life insurance is term insurance. Take a look at those whole, universal, and variable policies, there is a section regarding the cost of either the Annual Renewable TERM or Decreasing TERM insurance that the company pays for.
All life insurance falls under those 2 categories. Yes ART can have a level period, but they all boil down to one of those 2.
…
It’s that one bone in my body that must have everything right.
Dear Richard,
Not being someone who is a life insurance expert (I deal with it only as it pertains to estate planning), I defer to the wisdom of those who are when it comes to life insurance definitions and the like. I haven’t discussed the above with others who know more about life insurance than I do because whether you are technically correct or not is irrelevant for my purposes (i.e., offering an estate planning perspective); I only meant “term insurance” in the “pure” sense, i.e., for a specifically enumerated, limited period of time, as a pure insurance tool (a.k.a. the sense just about everybody usually means when they use the term “term insurance”).
One of the ultimate purposes (albeit not the only one) of estate planning is to pass on the greatest amount of wealth possible to those you care about. I want to emphasize that I am looking at this strictly from an estate planning point of view – and when it comes to estate planning, pure term insurance is usually not as useful as those “impure term” policies.
I am aware that some “pure term” policies can offer better yields than whole, universal, or variable policies. Life insurance, after all, pays out when – and if – you die during the policy period. If your loved one has a “pure” term insurance policy on your life, and you’re still alive when it runs out, then it was useless from the estate planning viewpoint; it passed on zero wealth to said loved one. (True, some term insurance policies, such as an ART, are renewable, but often the premiums go up each year.)
In any case, thank you for educating me more about life insurance.
- Joe Stanganelli, Esq.
Next we have a comment from “SaxophoneMan” in response to my January 16 post. Saxophone Man writes:
“The law will arbitrarily decide who gets your assets” if you don’t have a will? That is not actually true. The law of intestacy is actually designed to prevent the arbitrary allocation of assets in the absence of a will. Rather, intestacy rules seek to provide order in the allocation of the estate. While such allocation may not be the deceased’s preference, it is far from arbitrary.
Dear SaxophoneMan,
I realize that one of the many dictionary definitions of the word “arbitrary” is: “established by a court or judge rather than by a specific law or statute.” That is not how I use the word here.
Rather, I use the word in accordance with the following, alternative definition: “based on preference, bias, prejudice, or convenience rather than on reason or fact.”
As a Massachusetts attorney, I am well aware of the existence of Mass.Gen.Laws ch. 190 (the Massachusetts intestacy laws). To say that the intestacy laws were “designed to prevent the arbitrary allocation of assets” is not really correct. While they may have been designed to prevent probate judges themselves from divvying up estate assets arbitrarily, that does not make the intestacy laws any less arbitrary themselves.
In writing and enacting the intestacy laws, the legislature has arbitrarily decided for you the succession of your estate assets without a valid will in force. You yourself acknowledge that “such allocation may not be the deceased’s preference.” It is hard to imagine how that is something other than arbitrary.
After all, what is the basis for “such allocation”? Why, nothing more than the discretion of a group of state legislators huddled around a consanguinity chart! Yes, blood relations can be definitively shown and proven (and are therefore more convenient from a legal perspective), but that doesn’t change the fact that they make for no less arbitrary a standard than anything else that is not the deceased’s wishes.
Add the spousal elective share into the mix, and things become even more wild. As I stated in an earlier post, one of the common goals of estate planning for a couple is to avoid estate taxes until the second death (i.e., the death of the surviving spouse). This is because all estate taxes can be avoided by way of the marital deduction (assuming that the decedent is married to a United States citizen) and the Unified Credit (i.e., the $2,000,000 estate tax exemption). The logical thing for the married decedent-to-be with a greater than $2,000,000 estate is to leave $2,000,000 to the kids (or whomever s/he wishes), and the rest to his/her spouse (and/or a qualified 501(c)(3) charity to take advantage of the Qualified Charitable Deduction).
When a married person with children dies without a will in Massachusetts, the spouse gets half of their estate and the children get the other half. Even if we set aside personal circumstances that would make this a ridiculous distribution, if the decedent’s estate exceeds $4,000,000, then this is a wholly illogical distribution for tax purposes; the portion of the children’s half that exceeds $2,000,000 would be subject to federal estate tax.
(This is even setting aside the fact that the Massachusetts state estate tax exemption is less than that of the federal estate tax exemption.)
There are many, many more cases where the intestate statutes just quite clearly fail to dispose of assets in the best possible manner – let alone succeed at indicating that they are anything other than arbitrary distinctions.
While the laws of intestacy, spousal shares, and the like do serve their purpose of providing a default (so that probate judges aren’t just left to wing it), it is hard to argue that the way they were written is anything other than arbitrary. What is more, the certainty of the intestate laws pale in comparison to the certainty a well-written will provides.
Thanks for your comment.
- Joe Stanganelli, Esq.
Beacon Hill Law is on its way to being officially open for business. I have but about half a dozen forms left to fill out, plus the construction of the website. Please keep visiting this blog for updates – and don’t hesitate to contact me if you have any feedback or if you think there is something I can do for you.
- Joe Stanganelli, Esq.
Posted in Wills, Unified Credit Trust, Children, Probate, Reader Mail, Preventative Law, Charitable Giving, Marital Deduction, LinkedIn, Disclaimers, Intestacy, Marriage, Estate Taxation, Life Insurance, estate planning | Print | No Comments »
January 20, 2009 by admin.
Today’s Topic: What is a Power of Attorney?
The Short Answer: It gives someone else the power to do or decide things that normally only you would be able to do or decide.
A Power of Attorney is often an important tool in one’s completed estate plan.
This news piece from ABC’s Good Morning America, however, details a situation of a Power of Attorney gone bad.
The article explains how an elderly widow was conned and bullied out of her life savings. When her husband passed a way, 83-year-old Betty Halligan signed a Power of Attorney over to her grandson – and deeded her house to him as well. Instead of protecting his grandmother and her assets, the grandson stole from her and began proceedings to evict her from her own home – using the Power of Attorney to do it.
Indeed, reports of Power of Attorney Abuse are increasing across the country. The AARP (American Association of Retired Persons) reports the following:
“[Power of Attorney Abuse] typically begins when an older adult, usually a woman whose husband handled the finances, becomes widowed and starts to fall behind on her bills. Often, an individual’s diminished mental capacity plays a role in the need for help from family or friends.”
And so the Power of Attorney has gotten a bad rap among some, what with all of the reports of Powers of Attorney being used for evil.
But as the old journalism adage goes: The news never tells you about the house that didn’t burn down.
A show of hands: Who here has seen Star Wars?
Unless you’ve been living under a rock with the people who have never heard of Suze Orman, you are most likely at least familiar with the Star Wars saga – and, therefore, with The Force.
In Star Wars, The Force – replete with a “Light Side” and a “Dark Side” – is a metaphysical power that can be used for good or for evil.
So too is the Power of Attorney.
We have obviously seen examples of the Power of Attorney being used for evil. How about for good?
As I learned as a child when my card-carrying-member-of-the-NRA cousin taught me about gun safety, the best way to protect yourself from the evils of something dangerous is to learn about it. Knowledge and understanding are your best defenses against many harms, such as Power of Attorney abuse.
A Power of Attorney designates another person to make important decisions – and act those decisions – on your behalf. This person then becomes your “agent.”
Generally, the purpose of a Power of Attorney is to allow your agent to make these decisions and take these actions in case you are unable to do so yourself. It can ensure that your finances and assets are properly maintained, even in the event of your absence or mental incapacitation. Alternatively (or additionally), it can give someone you completely trust the authority to make important health care decisions for you in case you become unable to do so for yourself (e.g., incapacitated, unconscious, etc.).
A Power of Attorney can be particularly necessary sometimes because hospitals, banks, government agencies, and other such entities may require a written Power of Attorney to allow someone else to act on your behalf. This makes planning ahead very important. Obviously, if you become incapacitated, you will be unable to execute a Power of Attorney during the very time that you need it.
I understand that many of my readers may think, “Well, I’m perfectly healthy right now, so I don’t need a Power of Attorney!” Remember, however, that estate planning is exactly that — planning. If you don’t set up your estate plan until you really need it, then it may already be too late. As I said in an earlier post, the best time to hire an attorney is before you need one.
One popular misconception of the Power of Attorney is that it makes someone your “boss,” granting your agent total control to override your life decisions should you and s/he ever disagree. This is absolutely not true. Your designated agent is just that – your agent. He or she works for you.
Additionally, you can always revoke a Power of Attorney – and don’t let anyone tell you otherwise!
A good analogy for a Power of Attorney is making a copy of a set of keys; you retain the originals for yourself, while giving a copy of they keys to a person you trust. Even if you grant a Power of Attorney to someone else, you can continue to make financial, medical, and other personal decisions for yourself. Additionally, just as you can make as many copies of your keys as you like, you can have as many Powers of Attorney as you like, designating multiple agents. For instance, it is not uncommon for people to designate one agent to handle their financial matters while a completely different person to handle their health care and medical decisions.
There are several different types of Powers of Attorney. As previously mentioned, some allow another person to handle financial affairs for you, while others entrust your health care decisions to an agent. Additionally, while a Power of Attorney can be general, it can instead be limited to a specific purpose or transaction (for instance, selling your car for you). This latter kind is sometimes known as a “Special Power of Attorney.”
Furthermore, you can even designate the time period for which your Power of Attorney will be in effect. You can have your Power of Attorney do one of the following:
The most important knowledge of this powerful estate planning tool that is the Power of Attorney is that it can grant someone a great amount of authority over your personal matters. Therefore, it is important that you totally trust the person(s) to whom you are granting a Power of Attorney, with full understanding of the weight of the authority you are giving them over your life.
(For this reason, a neutral attorney whom you fully trust can make an excellent choice as a Power of Attorney designee. Attorneys, as members of the Bar, are subject to additional laws and rules of ethics that govern how they must behave as fiduciaries.)
To learn more about the different kinds of Powers of Attorney and determine how one or more may be right for you, contact a qualified attorney today.
- Joe Stanganelli, Esq.
INTELLECTUAL PROPERTY DISCLAIMER: Use of any and all trademarks in this and other blog entries is protected by the Fair Use Doctrine. Attorney Joe Stanganelli has no ownership of or affiliation with “Star Wars,” “The Phantom Menace,” “A New Hope,” “The Empire Strikes Back,” “The Force,” “The Light Side,” “The Dark Side,” and the like.*THE FOLLOWING DISCLAIMER IS MADE PURSUANT TO THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT AND OTHER APPLICABLE LAWS AND RULES OF ETHICS:
Use of the term “Estate Planner” herein is intended to be merely humorous. Attorney Joe Stanganelli does not intend the term “Estate Planner” to be used to describe himself (although Attorney Joe Stanganelli does welcome estate planning work for clients). By the same token, Attorney Joe Stanganelli does not intend to be held to the same legal standards as an attorney who does use the term “Estate Planner” to describe him- or herself. Attorney Joe Stanganelli, as a competent attorney and member of the Massachusetts Bar, merely welcomes – along with many other types of legal work – clients who need estate planning advice. Pursuant to the Massachusetts Rules of Professional Conduct, Attorney Joe Stanganelli does not wish to give clients or potential clients the notion that he is a “specialist,” “expert,” or similar designation in the area of estate planning – at least, any more so than a general practitioner of law in jurisdiction(s) within which he is licensed.
Posted in Elder Abuse, Power of Attorney, Health Care, Preventative Law, Elder Care, Elder Law, Disclaimers, LinkedIn, Grandchildren, estate planning | Print | No Comments »
December 12, 2008 by admin.
My name is Joseph S. Stanganelli. I am a Boston attorney admitted to the Massachusetts Bar. This is my blog.
THIS BLOG IS NOT LEGAL ADVICE!!!
This website/blog is intended for informational and entertainment purposes only. While the attorney who makes this blog available to you does so in the hopes of spreading some general information and a general understanding about aspects of the law, this website/blog does not provide specific legal advice — and is not intended to do so.
By using this blog site you understand that there is no attorney-client relationship between you and any of the attorneys who post on this website/blog. This website/blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
The information on this blog may be changed without notice and is not guaranteed to be complete, correct, or up-to-date.
COPYRIGHT NOTICE:
All blog posts herein are Copyright © 2009 Joseph S. Stanganelli. All rights reserved. This website and the materials contained on it are protected by United States intellectual property laws and treaties. I f you wish to reproduce, distribute make derivative works from or otherwise use the materials on this website beyond the manner specifically authorized by law, you must request and receive permission to do so from Joseph S. Stanganelli or the appropriate licensor. Use of copyrighted materials without permission is strictly prohibited.
TRADEMARK NOTICE:
“Uncommon Law” and “Beacon Hill Law” are unregistered trademarks belonging to Joseph S. Stanganelli and are protected by Law. They may be used publicly only with permission from Attorney Stanganelli. Fair use of these marks requires proper acknowledgment. ALL RIGHTS RESERVED.
LIMITATION OF DAMAGES NOTICE:
The operators of this blog expressly disclaim all liability for any viruses or other contamination of your computer system or other device used to access this blog as a result of your use of this blog and expressly disclaim all liability for actions taken or not taken based on any or all of the contents of this blog. THE BLOG IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE OPERATORS OF THIS BLOG MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT ACCESS TO OR OPERATION OF THE BLOG WILL BE UNINTERRUPTED OR ERROR FREE.
USE OF THE BLOG IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, OTHER COMMUNICATIONS, CONTENT OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THE BLOG. THE OPERATORS OF THIS BLOG ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS ON THIS SITE.
Modification of Terms and Conditions of Use Clause:
The operators of this blog reserve the right to revise these terms at any time and will update this post accordingly. Your continued use is your agreement to the revised terms. Please read this page/post regularly, as it is likely to change from time to time.
COMMENTS:
As a service to the people who use this blog, viewers are allowed to comment on blog entries. These comments do not necessarily reflect the opinions of the blog operators. Comments on this website are the sole responsibility of their respective writers.
When making a comment on this website, you agree to take full liability for anything that results from something written in or as a direct result of something written in a comment — including but not limited to libellous statements.
Posted in Disclaimers | Print | 2 Comments »