As some of you know, I have a background in the theatre and arts world.

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).

Sure, television depicts lawyers doing little else but prosecuting or defending exciting, high profile trials (well, that and having sex with each other, depending upon the TV show in question). What television doesn’t show you as much is the even more important – however banal – desk work of a lawyer – researching, analyzing, and preparing paperwork.

When you see a case going to trial in the United States, by very virtue of the fact of what a trial is, at least one of three things has occurred:

• Somebody didn’t consult a lawyer in time.
• Somebody didn’t listen to their lawyer.
• Somebody’s lawyer didn’t do a good enough job.

This is true of every trial, civil or criminal, high stakes or small claims, state court or federal court.

Even today, I believe that most of what a good lawyer does – or, at least, should do – is prevent his clients from getting into any sort of legal trouble (or, at least, any more trouble than they’re in already).

Both an attorney friend of mine (we’ll call him “John”) and I welcome criminal defense work. We seem to differ, however, on this philosophy. John’s web page describing his services is, to my mind, a bit misinformed – at least, from my philosophical perspective. Specifically, John’s website invites people who have “been arrested or charged with a crime” to call his office.

To me, this invitation is woefully limiting.

A criminal case is like a race where the government already has a significant headstart. When a criminal suspect is arrested or formally charged, the government has already completed a substantial amount of work in preparing its case. If a criminal suspect waits until he has been arrested or charged, he is severely limiting his ability to successfully defend himself. Additionally, if a criminal suspect waits until he is arrested or formally charged with a crime, very likely he has already waived important Constitutional rights which would have aided him tremendously had he actually exercised them.

Therefore, a criminal suspect helps his case tremendously if he contacts a lawyer as soon as he believes that he is suspected of a crime. This might be after police attempt to question him (even if the police say that the questions are merely “routine”). It might be after something bad happens to someone with whom the suspect had some sort of personal relationship, whether the relationship was a “good” one (such as a family member, friend, or significant other) or a “bad” one (such as an enemy or rival). In the cases of some types of crimes, it might also be once the suspect notes some unexplained changes to his home or office environment (such as might occur when law enforcement places surveillance equipment in a room or on a computer).

If you are suspected of a crime, law enforcement has most likely already started building its case against you. If you contact a lawyer at the proper time, you can get the advice you need to build your case too. Additionally, if you are falsely accused, a lawyer may be able to advise you so as to place you beyond suspicion altogether – and allow law enforcement to find the real culprit.

After all, if someone blaming you for their injury told you, “I’m going to sue you,” would you wait until they had actually filed the paperwork before you consulted a lawyer about your liability? (Hint: The right answer is “No.”) Your answer should be the same if you are suspected of a crime. In the world of criminal justice, everything is on the line. Freedom. Family. Friends. Reputation. Job. A criminal suspect simply cannot afford to not speak with an attorney.

Don’t be behind in the race. If you are arrested for or charged with a crime, you definitely need an attorney – but you should also consult with an attorney if you are merely suspected or accused of a crime.

You owe it to yourself – and to your loved ones – to contact Beacon Hill Law.

My friend Leanne Heller recently took this picture and blogged about it, “translating” it like so:

COMMONWEALTH V. WELANSKY

ANY QUESTIONS?

WHEN GOD CLOSES A DOOR…

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.

ETERNAL LIFE (INSURANCE) AND PURITY

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.

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.

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).

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 »