Copyright infringement has two sides: a) protecting your own copyrighted material and b) avoiding violations of another’s copyrighted work.

The U.S. Copyright Act, section 106, gives a copyright owner exclusive rights to the control of an original work, including reproducing it, publicly displaying it, publicly performing it, making derivative works, and selling, leasing or licensing it to others. Infringement occurs when someone uses another’s work or part of it in these and other ways without the owner’s permission.

To prove copyright infringement, in the simplest terms, the owner must show that he or she owns the copyright to the work in question and that the infringing item is a copy of the original. Copy does not necessarily mean an exact duplicate. The owner can prove this element by showing that the “copy” is substantially similar to the owner’s original and that the infringer had access to the original. If the alleged infringer came up with the same idea independently and created a similar work without any access to that original, there may not be an infringement.

Sometimes the analysis is simple. For example, if you wrote a book, another’s publication of the identical text under a different name and cover would clearly be copyright infringement. Unauthorized use of another’s original photo for the cover of a music album or a secret video recording from the audience of a first run movie for production of pirated DVDs are also examples.

The situation may be less than clear-cut if, for instance, you and another happen to each write original music which sounds similar for a few notes or bars. Two individuals painting the same landscape with similarities in treatment may also be possible trouble, but then again, may not. For some real-life close-calls, see the blog “5 famous copyright infringement cases (and what you can learn).”

The livelihoods of copyright lawyers depend on accurately analyzing such scenarios. However, while an experienced practitioner can and will offer his or her perception of whether similar works present a potential infringement, experts inevitably will differ in more complex cases.

If is of course far preferable to consult a copyright attorney over potential infringements before any “cease and desist” letter or, worse, a lawsuit arises from another copyright holder. If you need help with such issues, you can contact our Of Counsel attorney, Helena Kobrin.

Related articles: The Annals of Copyright Number 1, When in Doubt, Choose Contract Over Lunch (on the importance of written agreements for the use of copyrighted material) and The Annals of Copyright Number 2, You May Have a Copyrighted Work and Don’t Know It (on the definition of a copyrighted work).

If you have ever written a story, poem, novel, essay, research paper, or song, taken a photograph or video, performed music, or been in a play or a film, you were at some point a copyright owner. However, you may not still own those rights if you have sold, assigned or otherwise given those rights away. Loss of rights might be by a formal agreement, for example through an entertainment, publishing or music industry contract, or by some other means. If you were an employee in the U.S. when you made your creation, your employer owns the copyrights, based on U.S. law and the concept of “work-made-for-hire.”

A copyright is an owner’s exclusive right to do certain things with an original work and to prevent others from doing so without permission. For example, under U.S. law, the owner is entitled to protect an original work from being copied by others in whole or in part, whether by photocopy or by audio or video copy. Copyright also protects the right to publicly perform or display an original work, to make derivative works from it, and to sell, lease or license copies of it to others. Copyright protects your tangible, specific expressions of your creation, but not the idea or concept behind it.

If you – or one of your employees while on the job – create a written work, sound recording, musical composition, graphic design, architectural plan, photograph, or many other creative works, that creation is copyrighted even if you never take any action to protect it legally.

Nevertheless, there are good reasons why you should protect your copyrighted works by registering them with the U.S. Copyright Office. Registration carries the right to file suit if an infringement occurs, as well as the rights to collect so-called “statutory damages,” set amounts that do not require proof of actual money loss, as well as attorney fees. Especially if you publish or broadcast your copyrighted work in a manner that it could easily be infringed, it is better to file for a registration early on than to have to scramble to register after an infringement occurs, incurring higher expedite fees in the process and missing out on some of the remedies available to a registered copyright owner.

There is of course much more to the process. If you need help with your copyrights, please contact our Of Counsel attorney, Helena Kobrin.

The ability of employers to follow the law – and of judges to enforce it – depends on clearly defined standards of responsibility and conduct. Vaguely or otherwise poorly stated rules can lead to inconsistent outcomes in very similar factual situations. This danger of arbitrary, unpredictable consequences is perhaps no better illustrated than in the recent struggles of three appeals judges to define the terms of the federal Americans with Disabilities Act (ADA) in Weaving v. City of Hillsboro (9th Circuit, D.C. No. 3:10-cv-01432-HZ, August 15, 2014).

The ADA forbids workplace discrimination against a “qualified individual on the basis of disability.” “Qualified individual” means a person who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities,” with “a record of such an impairment,” or who is “regarded as having such an impairment.” The ADA provides examples of such major life activities, including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”

The challenge in the Weaving case appeal was whether the ADA’s protections should extend to an individual terminated over recurring interpersonal problems with co-workers that he and testifying mental health practitioners attributed to so-called attention deficit hyperactivity disorder (ADHD). Two of the three appeals judges concluded that Officer Weaving’s sometimes gruff, offensive manner – even if the supposed result of a purported ADHD condition – did not deserve ADA protection because his behavior evidenced only an inability “to get along with others,” not a major life activity. The third judge disagreed, contending that Weaving’s periodically boorish behavior amounted to a substantial impairment of the ADA-protected major life activity of “interacting with others.”

While employers might take heart in the immediate result of the Weaving case, that (to use the court’s term) “jerks” do not deserve ADA protection, the decision really should give neither workers nor managers comfort since it leaves the dividing line about as clear as mud between: a) disruptive conduct from which an employer can protect its workforce by suspension or termination of the perpetrator; and b) perhaps offensive but protected behavior stemming from a disability that a business must seek to reasonably accommodate.

The City of Hillsboro, Oregon terminated Matthew Weaving from its police force in late 2009, in part based on the report of his superior that Weaving had created a hostile work environment for his junior officers and peers for actions described as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant, and vindictive.” Weaving at page 10.

Officer Weaving then sued the City for ADA discrimination, alleging that he deserved protection because his diagnosed ADHD condition substantially limited his major life activity of “interacting with others.” The City appealed after a jury awarded Officer Weaving well over $600,000 in damages and over $139,000 in attorney fees. Weaving at page 11.

Weaving contended his situation was similar to the systems analyst who was able to maintain an ADA case in McAlindin v. County of San Diego (9th Cir., 1999) 192 F.3d 1226. There, Mr. McAlindin was able to convince two out of three appeals judges that his claimed panic attacks, “fear reaction,” and “communicative paralysis” created a substantial limitation on his major life activity of interacting with others. 192 F.3d at 1235-1236. Weaving also argued he was entitled to ADA protection just as an equipment operator had been in Head v. Glacier Northwest (9th Cir., 2005) 413 F.3d 1053. There, Mr. Head convinced the appeals court that the ADA could protect him from discrimination since his avoidance of crowds and large family gatherings, and his shutting himself away in his house for weeks – all purportedly the result of a diagnosed “bipolar” mental disorder – constituted a substantial limitation on his major life activity of interacting with others. 413 F.3d at 1060-1061.

Yet, two of the three of the judges in Officer Weaving’s appeal found his situation more akin to another “bipolar”-afflicted employee, this time an electric-guitar assembler in Jacques v. DiMarzio, Inc. (2nd Cir. 2004) 386 F.3d 192. According to the lower court’s record, Ms. Jacques was a “problem employee,” prone to confrontations with co-workers, intolerance of ethnic minorities in the production department, and emotional problems dealing with supervisory staff. Ms. Jacques’s supervisors had found her the “most confrontational person we ever employed,” with supervisors and coworkers regarding her as “intimidating and mercurial” and feeling obliged to treat her with “kid gloves.” 386 F.3d at 197-198.

Taking the cue from the Jacques case, the majority in Weaving found the officer was not eligible for ADA protection for being a cantankerous person with mere trouble getting along with coworkers. In contrast to the plaintiffs in the McAlindin and Head cases, Officer Weaving did not shut himself away, unable at times to interact with others at all. While able to engage in normal social interactions, “his interpersonal problems existed almost exclusively in his interactions with his peers and subordinates.” Weaving at page 17. “One who is able to communicate with others, though his communications may at times be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning of the ADA. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.” Weaving at page 18.

Circuit Judge Callahan, the third judge in Weaving, disagreed sharply with the other two. Citing the report of the treating psychologist, she emphasized that Officer Weaving was apparently unable to “self-regulate” certain symptoms of his supposed ADHD condition, including impulsiveness, “not seeming to listen when spoken to, … interrupting others, … difficulty waiting his turn, blurting out comments without having emotional intelligence, [and lack of] awareness of the effect that that communication would have on his other workers at the police department.” Weaving at page 23. Judge Callahan thus contended that Officer Weaving “was well beyond being merely cantankerous or troublesome. To the contrary, he had problems in his interactions with just about everyone throughout his career in law enforcement.” Judge Callahan thus reasoned that Weaving was substantially limited in his ability to interact with others and was not just a cranky, defiant bully undeserving of ADA protection. Weaving at page 32.

The Weaving decision demonstrates the highly subjective element that can drive the discussion on what is and what is not a protectable mental disability under the ADA. In the face of disruptive conduct as displayed by Officer Weaving, management must base any disciplinary decisions on the observable and documented negative effects that such angry, demeaning and bullying behavior has on the morale and productivity of the workers on the receiving end of such conduct. Job descriptions that establish the abilities to engage in effective, constructive communication and to work in efficient coordination with supervisors, coworkers and juniors will also promote the proper objective expectations for a worker at every company position.

For further information and assistance on workplace disability issues, contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
Additional references:
“Disability and Leave of Absence Policies, Keeping Up with Changing Employment Laws”

“Say “ADAAAAHHH” – More People to be Protected Under Federal Workplace Disability Law”

“Disability Employment, Employing Big Eaters, High Rollers and Voyeurs, Unusual Mental Disability Claims on the Horizon?“

August 15, 2014

Joining a growing movement of 12 states and more than 60 cities with “ban the box” laws, i.e., deleting the typical criminal history check box often seen on employment applications, San Francisco’s Fair Chance Ordinance (FCO) goes into effect August 13, 2014.

Arguably the strictest “ban the box” legislation in the nation, the FCO requires covered private employers, city contractors, and housing providers to limit timing and use of criminal background checks and take the following steps:

• State in all job postings – and to conspicuously display an FCO notice -- that qualified applicants with arrest and conviction records will be considered for the position in accordance with the FCO;
• Refrain from asking about an applicant’s conviction history or unresolved arrests at the start of the hiring process, such as on a job application form or through informal conversation;
• Wait until after conducting a live interview or making a conditional employment offer before asking about unresolved (i.e., pending) arrests and conviction history (except for any off-limits matters, such as arrests that did not lead to a conviction, misdemeanors, or convictions more than seven years old);
• Consider only those convictions and unresolved arrests that directly relate to the applicant’s ability to do the job (for example, an embezzlement conviction is likely relevant for a finance position); and
• Before denying an applicant a job due to a conviction, give the individual an opportunity to establish that the criminal background information obtained is inaccurate, he/she has been rehabilitated, or other mitigating factors such as physical or emotional abuse, coercion, or untreated abuse/mental illness that led to the conviction.

The FCO applies to employers located in or doing business in the city and county of San Francisco who have 20 or more employees (regardless of the employees’ location). It covers job applicants and employees who would be or are performing work in whole or substantial part in the city of San Francisco. Affected employers should promptly review and comply with the FCO in its entirety, including appropriate changes to job postings, employee applications, and interviewing protocol. All other employers should consider reviewing their hiring forms and policies to ensure lawful inquiry into an applicant’s criminal history, particularly if located in another “ban the box” jurisdiction.

For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

Have you ever created anything? Invented something? Designed something? Created a logo or a name that identifies your products or services? Written a song? Painted a picture? Taken a photograph? Perhaps you are a sculptor or a songwriter or you write blogs or screenplays. If you’ve done any of these things, then you have owned intellectual property.

Okay, so what, then, is intellectual property? It consists of things that you create through use of your intellect – your mind. There are several kinds of intellectual property. You may not be aware of all of them or you may have some of them confused with others. The most common ones are copyrights, trademarks (or service marks), patents, and trade secrets. They are different from one another, but they sometimes provide overlapping protections for various different rights that you claim in your own personal products or services or those of your company. For example, the Walt Disney Company claims both trademark and copyright protection for its numerous animated characters.

In many instances, your company’s intellectual properties are its most valuable asset, and it is penny wise and pound foolish not to hire an attorney to help you protect those properties.

We will be doing more blogs on these subjects. If there is anything you particularly would like to hear about, we welcome your feedback. If you need help with your intellectual property, please contact our Of Counsel attorney, Helena Kobrin.

Joining a growing movement of 12 states and more than 60 cities with “ban the box” laws, i.e., deleting the typical criminal history check box often seen on employment applications, San Francisco’s Fair Chance Ordinance (FCO) goes into effect August 13, 2014.

Arguably the strictest “ban the box” legislation in the nation, the FCO requires covered private employers, city contractors, and housing providers to limit timing and use of criminal background checks and take the following steps:

• State in all job postings – and to conspicuously display an FCO notice — that qualified applicants with arrest and conviction records will be considered for the position in accordance with the FCO;
  
• Refrain from asking about an applicant’s conviction history or unresolved arrests at the start of the hiring process, such as on a job application form or through informal conversation;
  
• Wait until after conducting a live interview or making a conditional employment offer before asking about unresolved (i.e., pending) arrests and conviction history (except for any off-limits matters, such as arrests that did not lead to a conviction, misdemeanors, or convictions more than seven years old);
  
• Consider only those convictions and unresolved arrests that directly relate to the applicant’s ability to do the job (for example, an embezzlement conviction is likely relevant for a finance position); and
  
• Before denying an applicant a job due to a conviction, give the individual an opportunity to establish that the criminal background information obtained is inaccurate, he/she has been rehabilitated, or other mitigating factors such as physical or emotional abuse, coercion, or untreated abuse/mental illness that led to the conviction

The FCO applies to employers located in or doing business in the city and county of San Francisco who have 20 or more employees (regardless of the employees’ location). It covers job applicants and employees who would be or are performing work in whole or substantial part in the city of San Francisco. Affected employers should promptly review and comply with the FCO in its entirety, including appropriate changes to job postings, employee applications, and interviewing protocol. All other employers should consider reviewing their hiring forms and policies to ensure lawful inquiry into an applicant’s criminal history, particularly if located in another “ban the box” jurisdiction.

For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

The California Court of Appeal has ruled in favor of employee Colin Cochran on his class action lawsuit on behalf of 1,500 customer service managers against Schwan Home Service for reimbursement for work-related use of personal cell phones. Cochran v. Schwan’s Home Service, Inc. (August 12, 2014). Cochran alleged the company violated California Labor Code Section 2802, which provides:

“An employer shall indemnify [reimburse] his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….”

Schwan’s Home Service had convinced the trial judge that class members had no claim for reimbursement under section 2802 if the workers had plans for their personal phones providing unlimited minutes for a flat rate or if someone other than the employee paid the bill. (In Mr. Cochran’s particular case, it was unclear whether he or his girl friend had actually paid the bill.)

The Court of Appeal disagreed, ruling that an employer must reimburse the reasonable expense of the mandatory use of a personal cell phone regardless of whether the employee actually incurred extra expense for such calls or not: “To show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.” Otherwise, the court reasoned, the employer would receive a windfall from passing its operating expenses onto the employee.

Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill for all types of cell phone plans and even if someone else pays the bill. The court did not discuss how to calculate that percentage.

California employers should promptly consult with competent legal counsel regarding their reimbursement obligations. For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

The California Court of Appeal has ruled in favor of employee Colin Cochran on his class action lawsuit on behalf of 1,500 customer service managers against Schwan Home Service for reimbursement for work-related use of personal cell phones. Cochran v. Schwan’s Home Service, Inc. (August 12, 2014). Cochran alleged the company violated California Labor Code Section 2802, which provides:

• “An employer shall indemnify [reimburse] his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….”
  

Schwan’s Home Service had convinced the trial judge that class members had no claim for reimbursement under section 2802 if the workers had plans for their personal phones providing unlimited minutes for a flat rate or if someone other than the employee paid the bill. (In Mr. Cochran’s particular case, it was unclear whether he or his girl friend had actually paid the bill.)

The Court of Appeal disagreed, ruling that an employer must reimburse the reasonable expense of the mandatory use of a personal cell phone regardless of whether the employee actually incurred extra expense for such calls or not: “To show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.” Cochran at page 8. Otherwise, the court reasoned, the employer would receive a windfall from passing its operating expenses onto the employee. Id. at page 7.

Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill for all types of cell phone plans and even if someone else pays the bill. Id at page 7. The court did not discuss how to calculate that percentage.

California employers should promptly consult with competent legal counsel regarding their reimbursement obligations. For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

After waging a 10-year legal battle, Brinker Restaurant Corp., the parent company for Chili’s and Maggiano’s restaurant chains, has settled its wage and hour class action lawsuit. On August 6, 2014, the parties reached a preliminary agreement to resolve all 120,000 class members’ claims in exchange for a maximum settlement payment of $56.5 million. The settlement terms remain subject to court approval.

This highly publicized case, which wound its way up to the California Supreme Court two years ago, affects all California employers. In its much-anticipated 2012 ruling, the high court held businesses must provide uninterrupted 30-minute meal breaks to their workers but are not obligated to ensure that no work is done during any such break. The Court cautioned that employers must not “impede or discourage” employees from taking that uninterrupted time off.

The Court also clarified California’s workplace rest period laws, ruling that employers must provide their hourly employees with one paid 10-minute rest break for every four hours worked or every “major fraction thereof.”

Brinker’s $56 million settlement serves as an important reminder for management to revisit meal and rest break policies. Among other things, workplace policy should clearly specify:

• the minimum daily working hours that trigger one or more unpaid 30 minute meal breaks;
• the minimum working shift hours that trigger each paid 10 minute rest period;
• employee obligations to accurately record working periods, including the entries that will frame unpaid, off-work meal breaks;
• management’s commitment to scheduling meal and rest break periods and to fielding any employee concerns over such matters;
• procedure for employee complaints over meal and rest break practices or incidents and their resolution; and
• forms for employees to periodically confirm (or contest) that any and all skipped breaks in a given recent period have been voluntary.

Of course, employers must always pay employees for all time worked including any meal breaks skipped at a worker’s option.

We’ve covered earlier rulings in past blogs, “Brinkers New Rules for Meal and Rest breaks”, “Brinker: Employees May Skip Breaks”, “Brinker: Clocking In on Employee Timekeeping”, “Brinker Decision and Rest Periods” and “Brinker: California’s Meal Break Breakthrough“. For information concerning meal and rest periods and related workplace practices, as well as model employee policies and forms, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.