Thursday, December 17, 2015

Blog Roundup: Star Wars and the Law

What does this week's much-anticipated opening of Star Wars: The Force Awakens have to do with the law? Perhaps more than you expect.  In fact, quite a few legal scholars and attorney bloggers have explored how the epic franchise illuminates many different aspects of the law, including the following.

Property Law: Who owns the rights to the blue lightsaber owned by Anakin Skywalker, collected by Obi-Wan Kenobi, given to and lost by Luke Skywalker, and apparently seen in trailers for The Force Awakens?  From The Legal Geek:

Yes, fans might want to know where that lightsaber is, but for that matter, who actually owns the lightsaber? For that answer the lightsaber must be analyzed through the intricate lense that is property law. 

Tax Law: Can tax policy change the galaxy?  From the BNA Federal Tax Blog:

Before there could be a clone war, a Skywalker losing some limbs in a light saber duel, a Death Star, a Death Star blowing up, another Skywalker losing a limb in a light saber duel and another Death Star blowing up, there was—and, believe me, the Star Wars fan in me wishes I was making this up—a tax controversy. 

Criminal Law: Can Darth Vader be held responsible for murder, false imprisonment, burglary, or other crimes? From The Findlaw Blotter:

The first scene in Star Wars opens with Darth boarding Princess Leia's ship, looking for stolen structural plans of the Death Star. The crime of burglary is defined as the unauthorized breaking and entry into a building or occupied structure with the intent to commit a crime inside. Vader and other Imperial troops, like common thieves in the night, blast their way on to Leia's ship with the intent of stealing the Death Star's plans. 

Constitutional Law: How is the creation of Star Wars like the creation of constitutional law? From scholar Cass Sunstein:

[T]he composition, and its multiple twists and turns, tell us a great deal about the nature of the production of narratives in general, including those that have many authors, such as constitutional law. 

. . .

Whether Jedi or Sith, the authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes. 

Check back soon for our next post exploring judicial opinions involving Star Wars.

Tuesday, December 1, 2015

Estate Planning Post-Divorce

One of the most important reasons young parents create an estate plan is to name a guardian for their minor children in the event that both parents die before the children reach the age of majority. If the parents are divorced, their individual wills may name a guardian who is not the ex-spouse. Who would become the guardian of the children?

Throughout Ohio’s juvenile code, a court is required to make custody decisions based on “the best interest of the child.” In custody hearings between parents and non-parents, Ohio courts have also established a general rule that the child’s best interest is to be cared for by his or her parent. However, parental custody is not in the child’s best interest if, for example, the parent has abandoned the child, is unable to provide support, or is otherwise unsuitable. (See In re Perales, 52 Ohio St. 2d 89 (Ohio 1977))

To determine the child’s best interest and the parent’s suitability, the court would have a number of factors to consider. For example, the court would take into account a divorced mother’s will which names a grandmother as guardian. However, it would also examine the children’s relationship with their father: Does he live nearby or out of state? Is he involved with parenting? Physically violent? The couple’s divorce or custody orders may also provide important information for the court to review.

Bottom line? If you are divorced, it is essential to consult an attorney when making your estate plans to ensure that your wishes regarding your children are best reflected in your estate documents.

Tuesday, November 17, 2015

The Cleveland Indians and the "Baseball Rule"

While attending a baseball game at Cleveland’s Progressive Field in July 2012, Keith Rawlins and his daughter were cheering for the Indians from seats along the third base line. During the top of the ninth inning, Rawlins was allegedly pressured by ushers to vacate his seat in preparation for a post-game fireworks display. As he left, he was struck by a foul ball, which blinded him in one eye and ended his career as a tool and die maker.  Can Rawlins recover for his injuries?

In most cases, fans injured during a baseball game cannot recover from the team. The well-established “baseball rule” states that fans assume the risks of attending a game, particularly the risk of being struck by a foul ball. A team cannot generally be held liable for injuries occurring during the normal course of a game - unless its actions increased the inherent risk of attending a game.

Earlier this month, the Eighth District Court of Appeals considered that very question in Rawlins v. Cleveland Indians Baseball Co., Inc. In its decision, the appeals court found that questions of fact remained as to if Indians employees increased the risk to Rawlins. The court remanded the case to the Cuyahoga Court of Common Pleas for a determination of whether ushers did ask Rawlins to vacate his seat and if so, whether those actions increased the inherent risk of the game.

For more, read the Cleveland Plain Dealer summary or the complete opinion.

Tuesday, November 3, 2015

Protecting Your Trademark Overseas

A federal trademark registration with the United States Patent & Trademark Office (USPTO) is limited to protection within the United States. Outside of the country, similar marks are not automatically preempted without an additional filing (and even if they are, may be burdensome to enforce). You might be surprised to stumble across, for example, an Applebee’s restaurant near Shakespeare’s Globe Theater in London or an Old Navy cafĂ© not far from Paris’s Luxembourg Gardens.

However, registering your trademark internationally is not as burdensome as it may seem. The Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) is an international treaty that allows a trademark owner to seek registration from any of the 96 parties with a single application. Instead of requiring individual applications in the language of each country where an applicant desires protection, the Madrid Protocol allows the applicant to file a single international registration through the United States Patent and Trademark Office. An international application may be filed electronically using the Trademark Electronic Application System for International Applications.

While every applicant may not need international protection, it may be wise to consider international registration if you anticipate using your mark overseas or know of potentially infringing marks. More information on the Madrid Protocol and international applications is available from the USPTO.

Wednesday, September 30, 2015

Upcoming CLE: Baseball Mascots and the Law

Attorney Christian H. Brill, along with Chief Justice Howard W. Brill, will be presenting a Continuing Legal Education seminar on Friday, October 2, 2015, at the 2015 University of Arkansas School of Law Reunion Weekend in Fayetteville, Arkansas.  The seminar, Baseball Mascots and the Law, is a modified version of a presentation given earlier this year at the National Baseball Hall of Fame and Museum in Cooperstown, New York.

Attendees will discuss current legal issues in such fields as torts, employment law, constitutional law, criminal law, and intellectual property by examining the intersection of baseball mascots and the law.

Tuesday, June 9, 2015

Ohio Updates Receivership Statute

Earlier this year, changes to Ohio’s statute governing court-appointed receivers became effective. The Ohio legislature passed, and Gov. John Kasich signed, legislation updating and clarifying various aspects of the law, including the qualifications of a receiver, the authority of a receiver, and the procedure for the sale of property.

In general, a receiver acts on behalf of the court to protect endangered property or assets, often while an underlying legal action such as a foreclosure is pending. Under the statute, a receiver may be appointed by the court to do such things as collect rents, take possession of property, or enter into contracts. The statute permits a receiver to be appointed in several specific circumstances, such as when a corporation has been dissolved, to carry a judgment into effect, or in some foreclosure actions.

It is important to note, however, that even if a court may appoint a receiver it is not required to do so. The court must use its discretion to determine if such an appointment is necessary to protect a party’s rights, in particular to prevent a party from suffering irreparable harm.

A detailed analysis of these important statutory changes affecting property and business owners is available from Porter Wright.

Thursday, May 28, 2015

Baseball Mascots and the Law

Attorney Christian Brill is speaking this week at the 27th Cooperstown Symposium on Baseball and American Culture at the National Baseball Hall of Fame and Museum in Cooperstown, New York.  The presentation, made with Prof. Howard W. Brill, is entitled “Baseball Mascots and the Law” and covers such areas of law as tort law, intellectual property law, and employment law.

Brill will discuss a variety of legal questions involving mascots, such as:
The Cooperstown Symposium on Baseball and American Culture, co-sponsored by SUNY Oneonta and the National Baseball Hall of Fame and Museum, examines the impact of baseball on American culture from interdisciplinary and multi-disciplinary perspectives.

Thursday, March 19, 2015

March Madness (TM)

As they do every March, words like "Cinderella", "bracket", and "madness" have again begun to take on new meaning.  But, just like the phrase "Super Bowl", businesses should be wary of using the trademarked term "March Madness" or risk facing allegations of infringement.

The roots of March Madness go back to 1939, when an Illinois High School Association (IHSA) official named Henry Porter apparently coined the phrase to describe the state basketball tournament.

From the Chicago Tribune:

"A little March madness may complement and contribute to sanity and help keep society on an even keel," [Porter] wrote.

Three years later, he punctuated his point with a poem, "Basketball Ides of March," which included these lines: "The Madness of March is running. The winged feet fly, the ball sails high. And field goal hunters are gunning."

In 1982, announcers began to use March Madness to describe the National Collegiate Athletic Association's men's basketball tournament, and in 1996 the IHSA sued to protect its trademark rights in the phrase.

As a result of the litigation, the NCAA and the Illinois association reached an agreement to create an new entity - March Madness Athletic Association, LLC  - which now holds the trademark to "March Madness" and regularly takes action to enforce its mark.

The bottom line? In addition to determining how, if at all, employees should participate in the tournament, employers should be careful not to imply that they have any official connection to the NCAA contest.

Tuesday, February 24, 2015

Lights - Camera - Taxes!

You might be surprised to learn that both federal and state tax codes offer incentives to encourage film and television production. In fact, Section 181 of the Internal Revenue Code gives most film and television productions a tax deduction of up to $15 million of production costs ($20 million for productions in economically distressed areas). The deduction can be taken during the first year of production and applies only to productions commenced before the end of 2014. Despite Congress's recent action to extend the provision, it remains to be seen whether the tax incentive will apply to productions begun in 2015.

In addition to the federal deduction, many states offer a variety of incentives to encourage filmmakers to produce somewhere other than Hollywood. States believe these incentives attract award-winning films to their locations, such as “Mud” (Arkansas) or “The Curious Case of Benjamin Button (Louisiana). However, at least some evidence exists that state film incentives may be falling out of favor.

For the time being, however, Ohio filmmakers may be able to take advantage of the Ohio Motion Picture Tax Credit, a refundable, non-transferable tax credit of 25-35% off the amount of a production company's qualifying expenditures that are incurred in producing a film or other media entertainment project in Ohio. More information on the state incentive is available from the Ohio Film Office, along with a map of Ohio’s famous television and movie filming locations.

Friday, February 13, 2015

Facebook Users Can Now Designate Someone to Manage Account After Death

In response to growing calls from the public, Facebook has given users more control over their account after death. 

From the Associated Press:

Facebook is making it easier to plan for your online afterlife. 

The world's biggest online social network said Thursday that it will now let users pick someone who can manage their account after they die. Previously, the accounts were "memorialized" after death, or locked so that no one could log in. 

But Facebook says its users wanted more choice. Beginning in the U.S., Facebook users can now pick a "legacy contact" to post on their page after they die, respond to new friend requests and update their profile picture and cover photo. Users can also have their accounts deleted after their death, which was not possible before.

For more, read the Associated Press article, add a legacy contact to your Facebook page, or learn more about managing "digital assets" after death.

Tuesday, February 10, 2015

Property Deed Restrictions: Are They Enforceable?

When transferring property, an owner may wish to place certain restrictions in the deed to limit the new owner’s use of the property. Such restrictions typically “run with the land” – meaning they are not personal to the owner and will affect future owners.

Typical deed restrictions are the following:
  • Grantee retains the right to use the land for hunting purposes.
  • The Property may not be rented or leased to any third party. 
  • Only one single-family residence is permitted on the Property. 
  • No trees may be removed from the three acres of the Property bordering Buckeye Creek. 
  • Grantee retains the right of first refusal and option to purchase, in the event Grantee wishes to sell the Property to a third party. 
While most deed restrictions are valid, those that are against public policy are unenforceable. For example, restrictions that bar the grantee from transferring the property are considered a restraint on alienation because they prevent the free flow of property. A restriction that limits transfer of the property to buyers of a certain race is invalid.

Ohio’s legislature and judiciary have also looked at specific restrictions in recent years. In 2003, the Ohio General Assembly amended the statutes to specifically provide that deed restrictions prohibiting flagpoles or the display of the American flag were invalid. In 2012, the Ohio Supreme Court held that a public school district could not sell a vacant school building for sale with a deed restriction preventing the property to be used for school purposes, because Ohio’s public policy supports community schools.

Sellers should consider whether they should insert deed restrictions into the transfer documents, particularly in cases in which they will live nearby or gain some value from the restrictions (be it a protected view, the option to buy back the property, or some other benefit). Likewise, before purchasing property, buyers should hire a reputable company to perform a title search to make sure that they are informed about any existing deed restrictions on the property.

Tuesday, February 3, 2015

How To Remove a Vacated Judgment from Your Credit Report

Court judgments typically stay on your credit report for seven years from the date of filing. But what if a judgment was vacated by the court?

In an ideal situation, this vacated judgment would be automatically removed from your credit report as the credit agency collects data from the court system. Realistically, however, it may take some time for your credit report to be updated to reflect the vacated judgment, and it is wise to be proactive, particularly if you will be applying for a loan in the near future.

The first step is to obtain a copy of your credit report from each of the three credit reporting agencies (Equifax, TransUnion, and Experian). Reports are available for a nominal fee. Federal law also allows you to obtain one free credit report from each of the three agencies every twelve months.

Once you obtain a report, review it carefully for accuracy. Assuming the vacated judgment still appears on your report, you will have to initiate a dispute with each agency.

Each agency’s process may be slightly different, but you will need to provide each agency with a letter disputing the judgment along with the court order vacating the judgment. Depending on the agency, you may be able to submit the court order online. The dispute generally must be resolved within thirty days.

Friday, January 30, 2015

Trademarks and "The Big Game"

Sunday's football game between the Seattle Seahawks and the New England Patriots will bring many references to "The Big Game", "The Professional Football Championship Game", "The Be All End All of Football Games", and even "The Superb Owl". But why?

From the CommLawBlog:

As we have reported every January for years now, the term “Super Bowl”® – and a surprising number of other “super” terms (think “Super Sunday”®, “Super Bowl Concert Series”®, “Super Bowl of Golf”® – oops, that last one is registered to the National Football League Alumni, Inc.) – have been registered as trademarks by the NFL. That means that, while those terms can be used in certain limited contexts, as a general rule they may not be used in any commercial promotions. No advertising of your own events, no advertising of client-conducted events, sales, promotions, no contests, no nothing. Nada. Zip. Zilch. 

As a result of the NFL's aggressive steps to protect its trademarks, businesses have had to talk about Sunday's big event in other ways.

From the Associated Press:

It is the game that must not be named--at least not without permission. 

For most people, the game Sunday between the New England Patriots and Seattle Seahawks is the Super Bowl. But for many business owners, it's simply the "big game" or "game day." 

Radio hosts are tripping over their tongues and airport signs are carefully worded to keep from referring to it as the Super Bowl, a trademarked name the NFL strictly polices. Mom-and-pop shops and large companies hoping to cash in on the game--but also don't want to run afoul of league lawyers--have found ways to color inside the lines. 

The bottom line to remember? Don't imply that you have any official connection to, endorsement by, or license to use the National Football League's trademark for "Super Bowl."

Tuesday, January 27, 2015

"Springing" Powers of Attorney: Three Questions

Sometimes a client may want to grant a power of attorney to allow another person to manage her affairs but delay the effective date of such power to a time in the future. These are often called “springing” power of attorneys, because the power “springs” to life at a later date. Springing powers can be a helpful estate planning tool, particularly when an individual is currently in good health and in full command of his or her faculties.

Any springing power of attorney must answer at least three questions: 1) When does it become effective? 2) How long is it effective? 3) Is it still effective if the grantor regains capacity?

Effective Date: The first consideration is when the power springs to life – or its effective date. In some cases, the power of attorney is immediately effective by default (although as a result, it is not a true springing power):  

This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions. 

The simplest springing power has language to specifically list when it becomes effective, such as in this example:

This Springing Power of Attorney shall become effective on January 1, 2025 or on the occurrence of my husband's death or on my disability, incapacity or adjudged incompetency. 

In some cases, individuals may want to require some proof of such disability, such as a physician’s letter, before the power is granted:

This Power of Attorney shall become effective when a letter written by my attending physician is attached to it stating that my attending physician has determined that it is in my best interest to have the assistance of an agent in handling my affairs (either for the foreseeable future or for a specified time period). 

Effective Term: Once the power of attorney becomes effective, the second question is when it expires. In most cases, there are two options. The power could be open-ended, with no expiration date; or it could remain in effect only until the incapacity has been terminated.

Recurring Disability: If the power of attorney has an end date, a final question must be answered. What happens if the disability ends but later reoccurs – such as, for example, a second stroke?

Our office recommends allowing the springing power of attorney to be revived – rather than revoked altogether – if the individual is disabled again at a later time:

Upon my regaining capacity, this Durable General Power of Attorney shall not be revoked but shall become effective again upon my subsequent disability, or incompetency as set forth above.

Tuesday, January 20, 2015

Arkansas Law of Damages Released

One of our attorneys, Christian H. Brill, and his father, Prof. Howard W. Brill recently published the 6th edition of Law of Damages, a comprehensive treatise on damages law in Arkansas. The volume is now available for purchase from Thomson Reuters.

Completely rewritten for the first time in more than a decade, the 6th edition of Law of Damages covers both the general principles of damages law in Arkansas and the damages relating to substantive principles of the law.

Part one treats damages generally, discussing damages in their many forms. Part two puts these varieties into perspective, relating them to substantive areas of the law.

The text also:
  • Provides in-depth discussions of different types of damages, including punitive damages, compensatory damages, attorneys fees, interest, and costs
  • Includes instruction on procedural and evidentiary aspects of proving and calculating damages
  • Discusses application of statutes and case law regarding damages to specific fields of law
With over 4000 judicial decisions and numerous statutory and secondary references, the new edition comprehensively covers Arkansas law. It includes expanded sections on compensatory damages, apportionment of damages, attorney fees, contracts, real property, restitution and wrongful death.

Previous editions have been cited over 200 times by Arkansas state and federal courts. As it has for 30 years, the volume will continue to be an essential text for every Arkansas attorney’s book shelf, and will serve as a tool for bench and bar.

Brill, an Arkansas and Ohio attorney, has been practicing with Mallory Law Office, LLC since 2013.

Wednesday, January 14, 2015

Wealthy Giving Less to Charity; Poor Giving More

A recent report by the Chronicle of Philantrophy studied charitable giving in America, and the results were perhaps surprising. The study found that, as the country struggled out of a recession, wealthier Americans are giving away a smaller percentage of their income, while poorer Americans are giving more.

According to Forbes, Americans who earned at least $200,000 gave nearly 5% less to charity in 2012 than in 2006. In contrast, Americans who earned less than $25,000 increased their charitable giving by almost 17%.

The trend was similar in Central Ohio. The Columbus Dispatch reported that donors in the Columbus area gave about 2.6 percent of their income to charity in 2012, a 6.5 percent decline since 2006. This places Columbus 39th among America’s 50 largest metropolitan areas in giving, behind both Cleveland and Cincinnati. Area residents making less than $25,000 gave away 7.19% of their income; those making over $200,000 gave away only 2.43%.

Charitable giving should be carefully considered for both short- and long-term tax and estate planning purposes. Contact our attorneys for assistance.