California is home to many celebrities and public figures, and the paparazzi is regularly and continually make attempts to take photos of these public individuals, or to score interviews with them. Public figures are individuals who have placed themselves in public view, such as actors and actresses, sports athletes, and politicians – many people involved in the entertainment industry are considered to be public figures. But city attorneys, authors, and average citizens who publicly advocate to influence resolution on public issues have all been considered to be public figures in California as well.

Sometimes the paparazzi crosses a line into something that feels like an invasion of the public figure’s privacy in order to capture a picture or to get a statement. But since these public figures are people of interest, and have placed themselves in the public sphere, where is the line between private and public?

Privacy Rights In California

Everyone in California, from celebrity to average Joe, is entitled to roughly the same right of privacy under the California Constitution, Article 1, Section 1. However, those individuals who are considered to be public figures tend to have a more difficult time obtaining recovery when their privacy is violated than private individuals do.

There are four causes of action for invasion of privacy tort in California that have arisen through case law, meaning through decisions made by the courts. These invasions of privacy include:

1. Intrusion into private matters/private spaces. Public figures have little reprieve from invasions of privacy when they are out in public, but when they are in private spaces or engaged in private matters, they retain a right of privacy. Usually a public figure’s home serves as a private sanctuary where the individual can reasonably expect some privacy.
2. Public disclosure of private facts. It is an invasion of privacy for someone to publicly disclose private facts that would be offensive and objectionable to a reasonable person concerning another where those facts are of no legitimate public concern. Facts that are not newsworthy or are not widely known may be considered private.
3. Misappropriation of a person’s name or likeness. Sometimes also referred to as one’s right of publicity, it is an invasion of another’s privacy to misappropriate the name or likeness of another, in particular for commercial gains. This is particularly relevant to public figures whose name or image is used without permission to endorse products or services.
4. Portraying a person in a false light. It is impermissible for an individual to portray another in a false light, i.e., portray another in a way that is highly offensive and implied to be true when it is actually false.

California law additionally provides some protections of privacy under Cal. Civil Code Section 1708.8, which are particularly relevant to the techniques used by the paparazzi to get photographs of public figures. These laws prohibit a person from entering on to the private property of another without permission for the purposes of taking a photograph or making a recording.

California businesses, including those that conduct business with California residents, need to pay attention to recent lawsuits that allege the “Shine the Light” law regarding the disclosure of personal information has been violated. Big media and technology companies have been sued, wherein the plaintiffs have said their personal information has been collected, stored, and sold and these companies have intentionally kept them in the dark about their info sharing practices.

“The penalties for non-compliance with the Shine the Light law are stiff at $500 to $3,000 per violation,” said Los Angeles business litigation attorney Anthony Spotora. “We can help you conduct an audit of your company’s privacy right disclosures to ensure compliance.”

Customer information that is collected online or offline is subject to the law if the business employs more than 20 people, conducts business with California residents, and shares personal information with third parties. Businesses that fall within this scope must have a mailing address or email where customers can request privacy disclosures or have a link accessible from a company’s homepage that details this information.

“The best practice is to have a link on a business’ homepage to direct customers to their privacy rights,” said Spotora. “California customers must be given the opportunity to opt-in or opt-out and be made aware if their information has been compromised.”

The current lawsuits do not assert that personal information has been misused, but the claims do allege that companies have failed to identify a way for customers to obtain disclosures of how their information is being shared. Companies should be proactive and consult an experienced business attorney to ensure they are compliant and taking the necessary steps to protect client information and privacy rights.

The Shine the Light law, which is contained in California Civil Code § 1798.83, has been in effect since 2005 but privacy rights practices vary widely amongst companies, which is why consumers are raising concerns. Some of the current litigation also involves the state’s Unfair Competition Law that bars unfair, unlawful, and fraudulent practices by keeping information to request disclosures away or concealed from customers.

Customers have the right to receive the names of third parties and their addresses where their information was shared and what type(s) of information was provided. “Your intentions might be good as a company, but you want to be proactive and have a toll free number, address, and hyperlinks online so that customers can request this information,” said Spotora.

To learn more about the Los Angeles business lawyer or The Law Offices of Spotora & Associates, visit Spotoralaw.com/.

Errors and omissions insurance, otherwise known as E&O, can help shield against claims a person or entity might make against a movie producer, video game company, or other entertainment and arts business. E&O reviews go through what objects are used in movies and video games, for example, to determine if clearance or permission is needed to depict an object due to the following factors:

-Is the object heavily used or prominent?

-Is the object depicted in a negative manner?

-Is using the object going to look like an endorsement of it?

-Does the object have a logo that is visible and trademarked?

-Does the object have another element on it that has separate copyright protection?

In some instances, entertainment companies will blur a logo or obtain necessary clearances to use an object that is critical to the success of a scene. It can be costly, but if it is an essential element, it will be worth the time and fees.

Otherwise, a person or entity that is affected by the use of its object can litigate to recover damages from improper use of its intellectual property. Sometimes, a company will be proactive and flex its power in court ahead of time to get what it wants. Recently, the gaming powerhouse of Electronic Arts did just that. EA’s Battlefield games have life-like helicopters and weapons to make it more of a realistic wargame. Because EA has been sued before by Textron, which makes military helicopters, this time EA sued Textron for declaratory relief so that a judge will rule whether they can use a similar Textron-like helicopter in their video games.

Video game companies have been gaining ground in the courts lately, such as in the U.S. Supreme Court’s decision in Brown v. Entertainment Merchants Assn. that found video game companies do have First Amendment fair use rights. Especially in light of a Battlefield 3 packaging disclaimer that reads “…the appearance of real-world weapons and vehicles doesn’t constitute any official endorsement by their maker,” the preemptive case could be sided in their favor. EA has also been successful in other cases involving likenesses of college basketball stars.

Textron says that EA’s use of helicopters that look like its AH-1Z Viper, UH-1Y transport helicopter, and a V-22 Osprey are trade dress infringement and dilution. EA’s case takes place in the same venue that decided in favor of fair use rights last year, so onlookers are curious to see if the case will bring new decisions or uphold First Amendment rights for the big game publisher.

Anthony Spotora is a Los Angeles entertainment litigation lawyer and Los Angeles trademark attorney. To learn more, visit Spotoralaw.com.

California now allows two new stock corporation subtypes, a benefit corporation and a flexible purpose corporation. The new subtypes went into effect January 1 of this year and help entrepreneurs and investors who want to fulfill economic and social goals that these corporation subtypes permit. This will help corporations be shielded against litigation from shareholders who assert that charity and other social efforts have devalued or diluted the stock value. That said, it does not eliminate or limit liability due to other acts or omissions.

The new subtypes help bridge the gap between solely for-profit, traditional corporations and nonprofit corporations that purely promote social benefits. Many entrepreneurs want to have social or green initiatives and be able to raise venture capital, which these new subtypes now allow. An already existing company that wishes to convert to such a subtype must have 2/3 of its shareholders vote to become one.

An experienced entity formation attorney or business incorporation attorney can help entrepreneurs and investors explore the pros and cons of each subtype, and counsel on how they affect debts, obligations, and liabilities.

The new subtypes must include additional statements in the Articles of Incorporation. The specific public benefits that the benefit corporation will be organized around must be specified. This can include:

-helping low income or under-served populations with products or services that benefit them

-promoting economic opportunity beyond creating jobs for people and communities

-environmental preservation

-improving human health

-promoting the sciences, arts, and knowledge

-increasing capital flow to entities that have a public benefit purpose

-accomplishing other particular benefits for the environment or society

A flexible purpose corporation must identify in its statement what it is to engage in as its specific purpose. These purposes can be chosen from the list included in the California

Corporation Code section 2602(b)(2), including promoting short or long-term positive effects or minimizing adverse effects for:

-a corporation’s workers, vendors, clients, and creditors

-the society and community

-the environment

The California Corporations Code sections 2500-3503 provide further guidance overall. Filing fees are still the same as general stock corporations. Articles of Incorporation are more free-form for these subtypes rather than using the California Secretary of State’s simple form, and thus the need for legal assistance.

It is also important to get legal counsel when these types of business subtypes occur during merger, acquisition, and selling transactions. A seasoned business attorney can provide reliable formation services and comprehensive business advice to get your business started and running efficiently.

Anthony Spotora is a Los Angeles business lawyer, Los Angeles entity formation attorney, and Los Angeles business incorporation attorney. To learn more, visit Spotoralaw.com.

As companies vie to remain profitable and increase shareholder revenue, some may strategically decide to spin off business lines that can be viable, standalone companies. Last year, spinoff transactions happened at notable companies such as Kraft Foods, Sara Lee, Tyco International, McGraw-Hill, and Abbott Laboratories. The Washington Post called 2011 the “Year of the Oops” as companies decided to “…sever business lines into separate companies underscored [by] new thinking about strategy.” Many sought to “…undo strategic shifts that had been panned by investors and threatened their valuable franchises.”

When spinoffs occur, two or more public companies can be created and these businesses would be well advised to hire an experienced business attorney to consider the legal issues and potential ramifications that must be addressed.

First, the board of directors must deem that a spinoff is in the best interests of shareholders and other key stakeholders. Spinoffs can be a complex, challenging task, so the board must balance their interests with the need to treat the decision with care and fairness. It is not just about increasing share price or calming shareholder activists; spin off companies should be created for best interests in the long-term.

Companies should remember that extensive disclosures to shareholders must be completed when a spinoff transaction occurs. Legal counsel can help to prepare these required disclosure documents and inform directors of the new company what their responsibilities are in conjunction with securities regulations. Thorough due diligence is also needed to separate assets and liabilities between the original company and the spinoff. Decisions on these matters can affect the company’s future growth and risk profile, so bringing in a business attorney and financial experts can make this undertaking more successful.

Spinning off can also involve decisions on how the management team will change. This can involve employment contracts, pension plans, option and incentive plans, and collective agreements. Legal counsel can review changes in these matters to ensure that the decisions are fair and appropriate. Arrangements must also be made so that any shared services and business opportunities do not create conflicts.

Spin offs can be created without big tax implications, and legal counsel can review the requirements needed to lessen or eliminate taxes. These requirements include that the company being spun off must have been operating for at least five years and will need to have three years of audited financials. Additionally, at least 80 percent of the spinoff’s equity must be distributed to existing shareholders to avoid large capital gains tax.

Anthony Spotora is a Los Angeles business lawyer and Los Angeles business litigation lawyer. To learn more, visit Spotoralaw.com.

American companies that are looking to take their products worldwide should seek to set up domain names overseas. With more than 250 country domain names, businesses will want to consider what markets are the most attractive to keep costs and paperwork down. Business experts recommend strategizing where you want to sell your products or services for the next three years.

Each country has its own Country Code Top Level Domains, also known as CCTLDs. Each country has its own standards, so that is why working with a skilled intellectual property attorney can help determine what legally needs to be done to get your domain up in the countries desired. Some countries require a trademark, others need local business registration, and some still require a company to have a local address to get that country’s domain attached. It is important to select a domain name that is not similar to a competitor’s name or trademark to minimize disputes.

But if you should find that someone else has taken your business’ name in bad faith and for their gain, an intellectual property lawyer can pursue the allegation of cyber squatting. Settling cross-border disputes involves showing that your business name is distinctive and that the domain name is being used in bad faith. Having a trademark already established can be crucial to protecting your business’ intellectual property.

A person or company might have obtained the domain name in bad faith, which could mean that they did so for no other reason than to resell it to you at an inflated price, to appear as though they are related to your business, or for economic gain off of your company’s good name. Cybersquatting costs $1 billion annually for U.S. businesses, reports CNN World. Countries have varying dispute resolution policies, so an attorney can help your business uphold your trademark, seek relief from the damages incurred, and halt the squatter from continuing to erode the business’ livelihood.

During the dispute resolution or court proceeding, you must show that you own a trademark that is the same or confusingly similar to the opposing party’s domain. It must be proven that the party that took the domain name has no legitimate interest in that name, and that it was registered and operated in bad faith. When these three points are evidenced, the domain name can be cancelled or transferred to the rightful trademark owner.

The Law Offices of Spotora & Associates had national and international experience in domain name and intellectual property disputes. Anthony Spotora is a respected Los Angeles intellectual property lawyer and Los Angeles business attorney. To learn more, visit https://www.spotoralaw.com/.

When a corporation is being sold, merged, or acquired, the duties of the board of directors shift.
The board members must not think of the business’ survival and instead focus on getting the best price and upholding the shareholders’ interests. Of utmost importance is the duty of care for the directors to utilize and gather all the materially accurate information to be able to determine the most appropriate buyer and make the most informed decision.

The business judgment rule will be used by the courts to see if the duty of care was upheld. This rule analyzes if actions were done in good faith and in line with how a reasonable person would have acted.

Board members should not be acting with self interest, bias, or only looking to preserve their roles. This duty of loyalty also includes the board of directors disclosing any conflicts of interest and a duty of confidentiality to prevent potentially harmful publicity or crises.

In real terms, all efforts must be made to receive the highest value for the corporation. Any preference for one bidder over another should be in line with getting the maximum price. If bias is discovered or a dispute ensues because favoritism is occurring for the wrong reasons, a breach of fiduciary duty can be claimed.

The courts recognize that even when the sale of a corporation is completed, some amount of business risk is taken. If the board of directors has made a decision that is in the shareholders’ best interests to further its’ goals, board members will be greatly protected from liability. But if the duties of care, loyalty, and disclosure are not upheld, a lawsuit can ensue. When wrongdoing is proven and shown to have caused damage to the shareholders, compensation for actual damages and sometimes even punitive damages can be sought. Courts do not rule favorably in circumstances where a board of directors or select individuals on the board have a conscious disregard for their duties in a sale, merger, or acquisition.

It is therefore advised to have a team in place to help the board of directors make the soundest judgments when an opportunity arises for the business to change ownership. An experienced business attorney is essential for the board of directors to have to review their duties and actions as the research and transactions unfold. Enlisting a competent attorney ahead of time can help to minimize risk and comply with all pertinent regulations.

Anthony Spotora is a Los Angeles business lawyer and Los Angeles business litigation lawyer. To learn more, visit Spotoralaw.com.

In-N-Out Burger has a following of restaurant-goers that crave its “fresh to order” hamburgers. Since 1948, the company has excelled in burgers, fries, shakes and a devout commitment to clean, efficient fast food. It has also relied on its boomerang logo and signage to stand out from the competition since its inception. No wonder that In-N-Out Burger was recently shocked to find that another restaurant was using a very similar boomerang to promote its company.

The lawsuit, In-N-Out Burgers vs. Pappas Restaurants alleges that Pappas’ used boomerang arrow signage outside its Houston, Texas airport location. In-N-Out Burgers has more than 260 locations throughout California, Texas, Arizona, Nevada and Utah. They allege that the boomerang logo is closely identified in the marketplace for In-N-Out Burgers and could cause confusion amongst the public. Thus, Pappas’ is allegedly engaging in trademark infringement under federal laws and unfair competition under Texas law, In-N-Out Burgers claims.

Pappas Burger has three burger restaurants in Houston and uses a yellow boomerang that bends with lights similar to In-N-Out’s signage. Case watchers say that the case will come down to how similar the signs are and how much confusion the two signs could have caused. What is interesting is that its logo is more of a baseball-oriented font and feel but the Houston signage does largely use a boomerang.

When companies go after each other for trademark infringement for a sign or logo, it shows that they are concerned about consumers being deceived, confused, or mistaking one company for another. Businesses spend a lot of time and money on signage and logos to have the public associate a set of words and images to their brand. Packaging, advertising, and promotions can also mirror the large-scale logo. Unless there is a partnership or marketing agreement that allows one business to utilize key parts of another’s logo for mutual benefit, trademark infringement can be charged.

An experienced trademark attorney is essential to protecting a logo and associated intellectual property assets. When a problem arises, a company can request a temporary injunction to prevent further harm, amongst other pursuits of resolution. Lost profits and losing part of a customer base can be devastating to a business when a trademark dispute arises. Moreover, in instances where a rival is acting in bad faith or confusion can be proven, monetary awards can be given. Punitive damages and attorney’s fees can also be sought after. Unjust enrichment and deterrence to continue the act of infringement is something that the courts will also look at when deciding a trademark case.

Anthony Spotora is a Los Angeles trademark attorney, Los Angeles intellectual property attorney, and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

Franchisee-franchisor relations are getting tense in the down economy. Several companies such as Wendy’s, Burger King, and Quiznos have been in the headlines because of franchisee unrest, including charges of racketeering and corruption and complaints about food costs, supplies, and the use of marketing and advertising funds.

“When your profits are gone, the first place you look is to see who is taking the most money off you,” said Kevin Tackett, the president of the Quiznos Franchisee Association (QZFA).

With less people going to restaurants, franchisees start to look around the store for answers. Is it new food that is cutting into profits, forced advertising campaigns, or upgrade costs, for example? When a franchisee feels that their part of the franchise agreement is not being upheld, they should present their concerns to a franchise attorney, allow him or her to review the terms of their agreement, advise on those terms and potentially seek to initiate negotiations or litigation against the franchisor. Resolving a franchise dispute quickly is essential to making sure the business can run smoothly and be profitable.

Wendy’s recently settled with its largest franchisee, the WendPartners Franchise Group, after it wanted stores to install new toasters for an up-and-coming cheeseburger that would increase sales by more than two percent. Big costs like new toasters across many stores can be tough when profits are not as plentiful as they were in the past.

Burger King settled a lawsuit with its franchisees in the spring after store owners were required to sell a double cheeseburger for $1 as part of a promotion. Franchisees said they were losing at least a dime per sandwich, and when you add it up, it hurt their bottom line. The Burger King National Franchisee Association says the settlement has been a positive step that allows franchisees to have more input in future promotions. The restaurant is also hoping that a menu makeover will also drive more profits to the franchisees.

Quiznos survived a slew of franchisee lawsuits back in 2009 too. Franchisees were in disputes over royalties, marketing funds, and food and supply issues. The QZFA seeks to work with Quiznos Corporate in an open way so that business decisions are more transparent and profit concerns are addressed more efficiently.

And even over at KFC, the franchisee-led KFC National Council and Advertising Cooperative (NCAC) won a recent battle against the corporate office over advertising. Advertising strategies and promotional dates should be a discussion between both sides to have the most impact.

In the end, franchisees are wise to have a franchise lawyer on speed dial and open lines of communication with their fellow stores. The downturn in the economy is too severe to go it alone against the corporate office.

Anthony Spotora is a Los Angeles business lawyer, Los Angeles franchise lawyer, and Los Angeles business litigation attorney. To learn more, visit Spotoralaw.com.

Logos are one of the cornerstones to a business’ sales and marketing identity. It can be as essential as the business itself for a brand’s identity to clients and the public. Logos that are not thought out or resemble other well-known logos may not only appear amateurish to the audiences the business is trying to attract but may further be committing infringement. An individual or a business can protect an original logo, provided it has proof of authorship via the U.S. Copyright Office and/or by registering for trademark protection through the United States Patent & Trademark Office.

Original authorship on websites, business slogans, and even innovative marketing campaigns are critical to protect. A skilled intellectual property attorney can help you acquire and protect these coveted assets that mean so much to your business. Otherwise, these parts of your business could be jeopardized because you did not get adequate protection. It is worth the time and investment to have an experienced attorney help you with these steps.

It is important to note that if you are the first to use a name, logo, or slogan in a geographic area, then you might have gained some common law rights and have a ‘first use’ argument. You have the right to initiate a lawsuit should someone infringe on these business assets, but they are limited without registration. So if you want to protect these assets on a national or international level, you must register and trademark them.

In a recent intellectual property suit, graphic designer Bill Dawson was shocked to find that a logo design he created for an independent film company was on the big screen, when months before the company had expressed no interest in his designs. This issue started when the designer saw his logo at the end of the Conan the Barbarian movie, but then he noticed it was in several Millennium films, including Elephant White, Trespass and Puncture, and that it was also on Millennium’s website. Dawson is claiming at least $200,000 in damages for copyright infringement and breach of contract for unauthorized use of his work.

Originally, Dawson had been contacted by Technicolor, a technical production services company to create a logo for Millennium Films for a small fee. Dawson, as the head of the graphic studio XK9, says that he had a verbal contract with a Technicolor agent. But when Millennium did not show any signs of interest in the designs, no further compensation was pursued.

That there seems to be a missing gap of information between Dawson, Technicolor, and Millennium in this exchange will make for a very interesting court case. Perhaps the court case will show what the agreement, if any, was between Technicolor and Millennium. Regardless, the lack of written terms will likely weigh in Dawson’s favor under copyright laws. As the rightful owner of the designs, he is seeking $200,000 in damages and wants any products, advertising, and marketing collateral with the unauthorized logo to be given back to him.

Anthony Spotora is a Los Angeles intellectual property lawyer, Los Angeles entertainment lawyer, and Los Angeles business litigation attorney. To learn more, visit Spotoralaw.com.