Copyright, fair use, and infringement basics.

Over the last few years, bloggers, business owners, web designers, content marketers and social media users have been forced to educate themselves about copyright, infringement, and fair use. As the internet becomes more and more a part of life many people are not mindful of the laws surrounding copyrights and the potential penalties for infringement.

What are Copyright laws?

The fundamental rule of copyright is simple. Anybody who creates a piece of original creative work has ownership rights. Intellectual property protected by copyright laws include writing, photographs, video, paintings, graphic art, choreography, sculptures, infographs and anything else that has been created as an original.

The copyright owner has exclusive rights to their intellectual property, but if they choose can also give permissions that allow third parties to use their work. 

Formal copyright registration is not necessarily required. Copyright protection exists from the moment a work is created in a fixed, tangible form of expression. The copyright immediately becomes the property of the author who created the work. Only the author, or those deriving their rights through the author, can rightfully claim copyright.

The way in which copyright protection is secured is frequently misunderstood. Copyright is secured automatically when the work is created and fixed in a tangible form, such as the first time it is written or recorded. No other action is required to secure copyright protection – neither publication, registration nor other action in the Copyright Office (although registration is recommended).

The use of a copyright notice is no longer required under U.S. law, although it is recommended

Copyright law does not make any specific provision that creative work must explicitly be flagged as copyright, but does make provision for “fair use," and this is where confusion can arise. 

What is “fair use”?

Fair use of creative work is a complex body of law. It does not always make a good defense either so if you are unsure whether or not you can fairly use somebody else’s work, play it safe and do not use it. 

Where the law is clear about fair use are situations in which the intellectual property is being used to support another body of work. They are as follows: 

• A small percentage of owned intellectual property – this allows writers, reviewers and commentators etc., to quote other peoples work for the purpose of supporting their own ideas.

• A single screen shot – allows you to capture a scene from film, TV or video game to support a critique or commentary

• Teaching and lecturing – if you are giving an online lecture, you can use intellectual property to summarily your point

• Quoting song titles as part of a review – you have to be careful when quoting song titles, but it can be used in reviews or to emphasis a point in an article which the lyric bears relevance

What constitutes a breach of copyright laws? 

There is practically no legitimate defense against violation of copyright. The courts will rule that you have breached copyright ownership if you use creative content without permission.

A breach of copyright will usually result in a fine, and the following is not a defense for copyright infringement:

• You did not know the material was copyrighted
• You have removed the image and are no longer using it
• You modified the original image (you need permission for this)
• You acknowledged the original creator
• You are not making money from the copyrighted work
• You used a disclaimer on your website

Besides federal trademark and service mark registration, a service mark or logo can be registered within a state. Florida Trademarks and Service Marks may be registered with the Florida Department of State pursuant to Chapter 495, Florida Statutes. Rights to a name or mark are perfected by actual use in the ordinary pursuit of the specific endeavor; rights are not perfected by registration only, and the general rule of "FIRST IN USE, FIRST IN RIGHT" is applicable.

Florida Statute 495.131  Infringement.--

(1)  Use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter on any goods or in connection with the sale, offering for sale, distribution or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source or origin of such goods or services; or

(2)  Reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in conjunction with the sale, offering for sale, distribution or advertising in this state of goods or services;

Shall be liable in a civil action by the owner of such registered mark for any or all of the remedies provided in s. 495.141, except that under subsection (2) hereof the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.

495.141  Remedies.--

(1)  Any owner of a mark registered under this chapter may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale and to pay the costs of the action; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case be delivered to an officer of the court, or to the complainant, to be destroyed. In assessing profits the plaintiff shall be required to prove defendant's sales only; defendant must prove all elements of cost or deduction claimed. In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding 3 times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not a penalty.

And so there you have it. A copyright is automatic. The moment I write these words, even if I don't register them as copyrighted, even if I don't publish them -- are copyrighted. According to Florida law as shown above anyone who knowingly and wrongfully uses a service mark (which is a logo or graphic) registered with the state may be required to forfeit their profits as damages.

The Pro Se Advantage

Wise people are thankful for small favors. In a struggle, even the smallest opening, the smallest advantage can sometimes be widened enough to allow a victory to squeeze through. It isn't easy to represent yourself in court. It's hard. It's scary and complicated. Please read my past post - The Pro Se Courtroom Experience, posted in May, 2014.

But ... pro se litigants you have one important advantage. Despite the fact that you are not an attorney, not learned in law, are confused by procedure, intimidated by the judge and opposing counsel - despite all that you have the advantage. But it is up to you to grasp it. Grasp your advantage with two hands and don't let go.

This is your life. What ever the reason you are in court and appearing pro se - its your life. And it must be important, or you wouldn't be there. Whether you're the petitioner or the respondent; or the plaintiff or defendant -- this is so important that you must do something. Many pro se litigants have exhausted all possible resources before proceeding without an attorney. Already borrowed all possible funds from Mom and Dad or Uncle Bob; maxed the plastic; and seriously robbed poor Paul to pay that steep retainer. That retainer that you gave to the attorney when he listened to your story, was so nice and accommodating, and said pay me your money, sign here, and I'll see what I can do. Then all too often, just as court day is looming you're hit with another payment - oops the retainer ran out. Now, the attorney needs another grand to appear in court.

You don't have it -- so he withdraws.

But, this is your life. No attorney will ever know the intricacies of your case and your life like you do. To the attorney, you're another day at work, another case, another paycheck. To you - its your kids, your house, your money, and sometimes even your freedom. Take the advantage as you find it. Take the advantage that you know more about your case than your own attorney ever did. And take the advantage that you know more about your case and your story than the opposing counsel ever will.

Take the time to learn the court rules, do your best to work through the documents, look up terminology that you don't understand -- and use your advantage to its fullest.

In a perfect world, your attorney would handle your legal matter for you and you could sleep at night knowing that your legal matter is in good hands. We don't live in a perfect world, use any advantage that comes your way. And if the only advantage is - you have no choice. Exploit your own need to win, and channel it into doing the best you can in understanding procedure and arguing your case.    

Pro Se Stories

The Florida Supreme Court Access to Justice Commission has requested that the United Way reach out to Florida residents to gather their stories about pro se litigants. The United Way has in turn reached out to FALDP to help meet the request. We need your pro se stories - successes and failures. Do you know a pro se litigant whose access to the legal system was hindered by not having an attorney? Do you know a pro se litigant who succeeded without any help from anyone? Do you know a pro se litigant who succeeded in their case with the help of a document preparer?

We need specific stories with contact information. Consumers will have control over how their contact information and name are used.

Paraphrased from the Supreme Court's request:

"How will we use the information people share with us? First, we might use the bare facts, without names, in outreach materials explaining the needs the Commission is addressing. Second, we would write stories about the cases or shoot videos. Third, we might provide the names and phone numbers to reporters who are interested in doing stories about improving access to civil justice. Of course, we would do nothing without the permission of each and every person we talk to.

But first we need to find some people willing to talk to us."

Please send your stories to staff@faldp.org - this is huge, the Supreme Court is listening.

Sixth Annual FALDP Conference - 9/19/2015 in Daytona Beach

 "Give me a lever long enough and a fulcrum on which to place it, and I shall move the world".

Archimedes 

Our SIXTH ANNUAL CONFERENCE - 2015 -  is set for September 19, in Daytona Beach, Florida at the Fountain Beach Resort. Although we have never before repeated a conference location - the venue in 2014 was so good, we think we need to do it again. More details coming soon.

We have been busy making plans for our Sixth Annual Conference. We are pleased to announce that one of our guest speakers will be Ken Diaz, co-founder of FALDP, who will focus on how to turn your website into a thriving online business. Your site is your virtual office - your storefront -  representing your business in the 2015 cyber space economy.

Ketty Rodriguez - our FALDP Ambassador for Lee County and Spanish Coordinator will explain how she can help our members and the community by assisting in serving the hispanic community. Ketty and I appeared together on Accion Hispana to talk about the legal document preparation industry in Florida.

A central Florida woman who will speak about her unspeakable personal difficulties in accessing the legal system and the government's blatant denial of justice.

We are planning on at least one more guest speaker, details to come.

The Conference is all day on Saturday, September 19; and we will provide lunch. 

The theme for the upcoming conference is "LEGAL ACCESS". Florida document preparers with FALDP as an aligning force are at the forefront in assisting pro se litigants access the legal system. The legal system -- the courts, the laws, and citizens' rights. Without us, many consumers would have nowhere to turn, and no one to help them. We are the Axis of Justice.

The Conference fee for members is $75. Pay the $75 fee if you have already renewed your membership this year and want to attend the conference. If you have not yet joined and want to attend the conference the fee for annual membership and the conference fee combined is $130. This combination rate applies to new or renewing members. Learn more about FALDP Membership here.

Legal Document Preparer Certification

People often ask: Are you a paralegal? I answer, no, paralegals by definition are supervised by an attorney, and I am not. I am a legal document preparer. As a legal document preparer I can prepare documents for you, provide legal information; and explain procedure. I cannot give you legal advice; or provide representation.

Are you certified or licensed? I answer, no, legal document preparers are not regulated by the state or government in any way. However, I am a member of the Florida Association of Legal Document Preparers - www.faldp.org - which is a statewide trade association for nonlawyer legal document preparers.

The Florida Association of Legal Document Preparers (FALDP) raised the bar in 2016 when it started offering an opportunity for member document preparers to earn FALDP Certification. FALDP has always required that prospective members meet minimum standards, which may include experience preparing documents for pro se litigants; law firm experience as a paralegal; academic training; or a combination of experience and training.

By adding the "FALDP Certified LDP" designation the world will know that the document preparer has taken the time, initiative, and interest to go the extra mile. There is a three step process to certification available to FALDP members. Pass a Basic Skills Test; pass a Focus Area Test; and complete at least 10 Continuing Education Units (CEUs) before 2016 renewal. Once certified, member document preparers must complete 10 CEUs each year to maintain their certification.

Consumers will benefit by being able to easily find out whether a document preparer has taken the time to become certified and maintain certification. The document preparer's focus area(s) will be clearly displayed to help consumers make an informed choice in hiring a document preparer.

The Florida Association of Legal Document Preparers exists primarily to help consumers access the legal system by providing resources and document preparation assistance. The association's website, www.faldp.org, is itself a resource, with information about court procedure, detailed articles, online courses, and a Membership Directory which advertises the services of member document preparers.

FALDP's second goal is to support the legal document preparation industry by providing educational opportunities, webinars, an annual conference, networking, online courses, and mentoring. To that end FALDP now offers Intensive Training for Divorce Document Preparation every month beginning in February 2023.

Founded in 2010, the Florida Association of Legal Document Preparers has proven itself to be an industry leader in a rapidly evolving service market. Consumers contact FALDP for referrals to member document preparers. Consumers and document preparers alike can take advantage of the many free resources on the website. Resources include articles; information; and a question and answer forum.

The internet has helped level the information asymmetry for self-represented litigants by allowing the determined and diligent to pursue their case on their own. FALDP is the fulcrum providing the leverage to Florida pro se litigants - the Axis of Justice.

"Give me a lever long enough and a fulcrum on which to place it, and I shall move the world."

Archimedes 

Celebrate America! Happy Fourth of July!

The Fourth of July ~ Independence Day ~ marks our countries independence and celebrates our liberty. As you enjoy the day, with food, family, fireworks, and fun, remember how lucky we are to live in the greatest country in the world. Celebrate America!

"[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse."
--- Thomas Jefferson December 20, 1787 

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government -- the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration - or bill - of individual rights. It specified what the government could do but did not say what it could not do.

The absence of a "bill of rights" turned out to be an obstacle to the Constitution's ratification by the states. It would take four more years of intense debate before the new government's form would be resolved. The Federalists opposed including a bill of rights on the ground that it was unnecessary. The Anti-Federalists, who were afraid of a strong centralized government, refused to support the Constitution without one. 

In the end, popular sentiment was decisive. Recently freed from the despotic English monarchy, the American people wanted strong guarantees that the new government would not trample upon their newly won freedoms of speech, press and religion, nor upon their right to be free from warrantless searches and seizures. So, the Constitution's framers heeded Thomas Jefferson who argued: "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."

The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution's first ten amendments became the law of the land.

The provisions contained in the Bill of Rights were predated by the Magna Carta, which King John signed in 1215 to protect citizens against abuse of power by the King or Queen. Likewise, the authors (led by James Madison) sought to limit the role of the central government. Virginia's Declaration of Rights, drafted by George Mason immediately after independence in 1776, served as a model for other state bills of rights as well as the first 10 amendments to the Constitution.

"CERTAIN UNALIENABLE RIGHTS"

Democracy and liberty are often thought to be the same thing, but they are not. Democracy means that people ought to be able to vote for public officials in fair elections, and make most political decisions by majority rule. Liberty, on the other hand, means that even in a democracy, individuals have rights that no majority should be able to take away. 

The rights that the Constitution's framers wanted to protect from government abuse were referred to in the Declaration of Independence as "unalienable rights." They were also called "natural" rights, and to James Madison, they were "the great rights of mankind." Although it is commonly thought that we are entitled to free speech because the First Amendment gives it to us, this country's original citizens believed that as human beings, they were entitled to free speech, and they invented the First Amendment in order to protect it. The entire Bill of Rights was created to protect rights the original citizens believed were naturally theirs.

LIMITED GOVERNMENT

Early American mistrust of government power came from the colonial experience itself. Most historians believe that the pivotal event was the Stamp Act, passed by the English Parliament in 1765. Taxes were imposed on every legal and business document. Newspapers, books and pamphlets were also taxed. Even more than the taxes themselves, the Americans resented the fact that they were imposed by a distant government in which they were not represented. And they were further enraged by the ways in which the Stamp Act was enforced.

Armed with "writs of assistance" issued by Parliament, British customs inspectors entered people's homes even if they had no evidence of a Stamp Act violation, and ransacked the people's belongings in search of contraband. The colonialists came to hate these "warrantless" searches and they became a rallying point for opposition to British rule.

From these experiences came a uniquely American view of power and liberty as natural enemies. The nation's founders believed that containing the government's power and protecting liberty was their most important task, and declared a new purpose for government: the protection of individual rights.

The protection of rights was not the government's only purpose. It was still expected to protect the community against foreign and domestic threats, to ensure economic growth, and to conduct foreign affairs. It was not, however, the government's job to tell people how to live their lives, what religion to believe in, or what to write about in a pamphlet or newspaper. In this sense, the idea of individual rights is the oldest and most traditional of American values.

Once drafted, the Bill of Rights was quickly ratified by the states.

Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment 2
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment 3
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment 7
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Florida Association of Legal Document Preparers - Axis of Justice

"He who represents himself has a fool for a client" ...

is a quote most often attributed to Abraham Lincoln, who was, himself, a lawyer. And, of course, there is some truth to that statement, many attorneys recognize that they may not be their own best choice in handling their own legal matter. Even as qualified attorneys, their legal specialty, experience, and knowledge may not be sufficient. For example, a corporate attorney handling his own divorce, may be a very bad idea. Also, the personal nature of family legal matters means that emotions can be at an all time high.

However, for many people in Florida, hiring an attorney is simply not an option. The cost of representation is out of reach. Many people would prefer to hire an attorney if they could, but have no choice but to proceed pro se. The barriers that pro se litigants must overcome are substantial, as the court system has a profound bias against self-represented parties -- even though around 70% of litigants in Florida family courts are, in fact, pro se.

Florida legal document preparers attempt to bridge the gap by offering document preparation services to pro se litigants. Professionally prepared documents and information about procedural rules can go a long way in helping consumers navigate the court system.

However, just as there is a strong bias against pro se litigants, there is also a strong bias against legal document preparers. Legal document preparers face frequent harassment from attorneys and the Florida Bar. It is my belief that the attorneys who attack and malign legal document preparers do so because they are at the bottom of the pack. The attorneys who attack and malign document preparers are threatened by the very existence of document preparers. They fear that consumers will turn to document preparers for their simple uncontested legal matters. And rightly so. Why does anyone need an attorney for a simple uncontested matter anyway?

Document preparation and lawyering are two completely different ball games. Theoretically, although different ball games, we both want a positive outcome for the consumers we serve.

Strike One:

I have had a couple of recent run ins with attorneys for needlessly and publicly denigrating document preparers in general. One of these run ins was on linkedin and some other document preparers saw it, and some of those document preparers also posted comments. The attorney made statements that document preparers are at best incompetent and at worst perpetrating fraud. I disagreed. He then quoted me the Florida Bar UPL rules. I acknowledged that I am well aware of our limitations regarding UPL. Then several document preparers also commented, stating that they frequently refer customers to attorneys, and in turn attorneys frequently refer consumers to them. That attorney ultimately removed his post and all the comments along with it.

I do have some sympathy for attorneys. They have painted themselves into a corner. Law schools have lowered standards considerably; and there are now something like 94,000 attorneys in Florida. And with a Florida adult population of around 16 million - that's around one attorney to every 170 Florida adults. Since many people never need an attorney, that could be some slim pickins. Also, attorneys have monumental self-induced PR problems. I don't go out of my way to malign attorneys,

And as the attorney on linkedin discovered, I don't appreciate attorneys going out of their way to malign document preparers.

Strike Two:

We recently came across an attorney site advertising family law document preparation. The attorney site states:

"Divorce is never trouble-free, but why make it harder than you have to?

For simple, uncontested cases, it’s as low as $399, and we make it as easy as 1, 2, 3:

• We’ll give you Florida Supreme Court approved forms absolutely free
• You’ll fill out the forms
• You’ll meet one-on-one with a member of our legal team to review the forms after you complete them

It’s that simple.  We’ll also explain local Court rules and give you advice about filing your case and appearing before the Court.  Plus, we’ll also provide a Notary Public service for free!

 

The clerk’s office charges fees for the necessary Florida Supreme Court approved forms and doesn’t even provide assistance when filling them out.

..., we give you the forms for free and our attorneys provide legal advice for a nominal fee".

So apparently the consumer has the pleasure of paying $399 to prepare the forms themselves. For that $399 they get handed a stack of forms, go home, fill them out, come back and review them with a "member of their legal team", who I'm guessing is a paralegal. In the real world, the forms are free, all the Supreme Court approved forms are free. Patting themselves on the back for giving away what is free seems a bit disingenuous to me. Notary services can also be free. Most banks offer free notary services to their customers providing no witness is required. Then comes the kicker the undisclosed "nominal fee". Who knows what constitutes a nominal fee in attorney world?

Strike Three:

Another family attorney site claimed the following. I do not include the site, as I do not want to provide him with free advertising. However, if you message me I'll send you the link and you can see for yourself. The site boldly claims:

We want to put the document preparation companies out of business.

"They aren't lawyers. They haven't the foggiest idea about Florida divorce law. Most are from out of state. They sell access to a software program that fills in blanks on a form. No lawyers. No real help. Mostly they get it wrong. Mostly they don't include all of the required papers. They charge too much. Some are practicing law without a license, which is a 5 year felony in Florida. The Florida Bar goes after some of them but doesn't have the manpower to shut them all down. Cyberspace can be hard to get a handle on. We aim to put them out of business, which is why we are charging so little."

This little paragraph is chock full of lies and disinformation. I won't even dignify the comments with an answer. This is a shame for consumers. Adding to consumers' confusion as to what to do and how to navigate the legal system is a true disservice.

You're OUT!

The silver lining for pro se litigants is that despite their lack of knowledge of the law, they are their own best experts on their case. It is the pro se litigant's life. To an attorney it is just another case.