An image of characters from Empire

3rd Circuit Rules on “Empire” copyright infringement

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The 3rd Circuit Court of Appeals released a ruling last week on whether the hit TV show Empire infringed on the copyright of a Philadelphia television writer. In Tanksley v. Daniels, the court ultimately ruled that there was no infringement in this case because there was no actual copying or material appropriation. The background of the case involves the claim of a local Philadelphia writer that the show Empire was largely based on a script that he had written and previously pitched to the executive responsible for empire.

Empire and its similarities

The facts that gave rise to the case are as follows: Mr. Tanksley met with a Fox executive and pitched him a TV show about a black music mogul/executive who is struggling with family drama and a personal health crisis. The Fox executive expressed initial interest, but subsequently turned down the script. A few years later, Empire premiered, exploring some of the same themes.

The court declined to find infringement in this case, despite the similarities. One of the primary reasons for this was that many of the alleged similarities were scènes à faire, and thus, not copyrightable. Scènes à faire are plot elements flowing predictably from a general idea. For example, drunk college students in a movie about college would be scènes à faire. It would be absurd for someone to claim that all college movies were based off the first college movie ever made just because there were drunk college or kids going to class. Instead the court noted that there were two ways to demonstrate infringement. First, by demonstrating actual copying. That is to demonstrate that a unique element that is capable of being protected was actually lifted from the original work and used in the copy. Second, to demonstrate material appropriation. That is to demonstrate that the work taken as a whole by the average laymen observer would be perceived to be a copy of the original.

Interesting Legal Developments in Tanksley

The court rejected that expert witnesses were necessary to further develop the record in determining whether there was infringement. Rather the court noted that the average observer could tell if a painting was copied, if a song was ripped from an original, or if a TV show’s plot had been lifted entirely from another. The court went to great lengths to demonstrate, in narrative form, the plots of the two shows side by side demonstrating that the similarities were superficial at best. Rather most of the local producer’s claim was based on the existence of prototypes, such as a black record executive who is struggling with family drama. A black record executive, the court concluded, is a classic example of a “prototype” that cannot be copyrighted, and family drama would an example of scènes à faire. Both of these are unprotectable elements and not subject to copyright protection.

Another unique element about this case is that the 3rd Circuit affirmed a dismissal on a 12(b)(6) motion. 12(b)(6)—dismissal for failure to state a claim upon which relief can be granted—is usually only granted where there is no need to develop any testimony or other facts on the record. The court said it was no error for the district court to have looked at the two TV shows referenced in determining the 12(b)(6) motion. Ordinarily anything outside of the pleadings is not considered in a rule 12 motion, but the court ruled that where the Complaint is based on two works of art, those works of art could be considered implicitly a part of the Complaint as if they were attached themselves.

Conclusion

This case is part of a growing national trend establishing that copyright infringement claims that do not have merit can be dealt with on 12(b)(6) motions. The ability to dismiss the Complaint earlier in the process will likely have more defendants fighting aggressively and early. This is good news for large companies who are often the target of copyright trolls, who can now have their cases dispensed with more efficiently. This case also lays out the “prototype” exceptions to copyright protection in a helpful way, and will likely be cited for this proposition for years to come.

Insurance after a car accident

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After a car accident, one of the most difficult things to figure out is whether your insurance or someone else’s insurance has to pay for the medical bills you’ve accumulated. Even if your insurance is paying for your bills, it can be tough to know if their “offer” to settle the case is sufficient. When an insurance company offers you a settlement for your injuries, should you take it? There are several factors to consider when you’re evaluating an offer from a car insurance company offering to settle your personal injury claims.

1. How Bad are your Injuries?

The most important inquiry in determining whether a personal injury settlement offer is appropriate is to ask how bad your injuries are. No injury is a good thing, but obviously, some physical injuries are worse than others. How long did it take you to heal? How long did you seek treatment for your personal injuries? Did you miss work or lose your job because of your injuries? In general, you are usually entitled to recover for your medical bills, your lost wages, and your pain and suffering resulting from the vehicle accident. Determining how bad these were will help determine whether an offer from your insurance company is fair.

2. Are you completely better?

One of the most important questions to ask yourself is whether you’re completely better. You should generally not accept a settlement for personal injuries from a car or other accident if you are not 100% recovered. Sometimes, the most serious injuries are lurking under the surface. If you’re still experiencing pain and lack of mobility after treatment, you should first speak to your doctor about other treatment options. Once you accept a settlement for a car accident, you are done. You will be asked to sign a release, and you won’t be able to come back for more money if it turns out the injuries are more serious than you thought. So, don’t settle if you’re not better yet! Or, if you’re statute of limitations is about to run out (see below), you may need to file suit to preserve your rights to compensation.

3. When does your statute of limitations run out?

The statute of limitations is a law that sets the time limit on when you can bring a lawsuit to recover for your injuries. You should consult an attorney about your particular case to determine when the statute runs out on you, thus limiting your right to recover for your injuries. If your statute is about to run, this will impact whether you file a lawsuit or accept an offer to settle your claim. The statute of limitations can also motivate the insurance company to make a better offer–but that’s only the case if they’re afraid you’ll file suit.

Conclusion: Call for a Free Consultation on your Injuries

In conclusion, if you’ve been injured in an accident–whether it involved a car, bus, motorcycle, bike, or any other vehicle–call us for a free consultation on your case. We can help you determine whether a settlement offered you by a car insurance company is right for your case, or whether you should fight for more compensation. Whether you were injured in an accident here in Berks County, or anywhere in Pennsylvania, Maryland or New Jersey, we can help you determine what to do next.

End of August

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It’s been a busy month at Cornerstone Law Firm. Attorney Crossett spent a week in a trial in Berks County over unfair trade practices, and also successfully brought several insurance claims to favorable conclusions. He has been advising a company on compliance with state regulations, and is defending several federal lawsuit.

Attorney Ready achieved a large settlement for a serious Berks County car accident victim, and beat criminal charges for several clients. In addition, he favorably settled a large contract claim against a client, and is pursuing another client’s right to retirement funds.

Most excitingly, Cornerstone Law has hired two new employees! Matt has already joined us, and Tiffany will be coming aboard next month. Their information will be posted on the staff page.

We hope your August has gone well and that you’ve been productive! As we head out of summer and into fall, let us know how we can help you, your family or your business to solve problems.

Time to File a Property Tax Appeal?

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Wise management of real estate requires owners to periodically check their tax assessments to ensure they are being assessed correctly. You pay taxes based on the “assessed” value of your home, so ensuring correct assessment can lower your tax liability each year. This applies to both homeowners and owners of commercial property.

There are several times that your property can be reassessed. First, you may have just recently purchased property and based on the purchase price, you may realize that the assessed value, when factored by the common level ratio, is showing an assessed price based on a market price which is significantly more than you paid for the property. If this is the case, your property is ripe for a tax assessment appeal in order to lower your taxes. Another time to consider filing an appeal is when there has been a recent condemnation of part of your property or there has just been a general downturn in the market from when the property was last assessed. In addition, every year, you have the opportunity to file a tax appeal from July 1 to August 15 (the must be received by then).

While the end goal for a tax assessment appeal is to lower the tax liability, it is also important to note that a lower tax liability may make the property significantly more rentable or make it more attractive to buyers at a higher price.

Prudent property owners conduct a periodic or annual review of their real property holdings to find out if they are being properly assessed. Should you have an interest in filing a tax assessment appeal, please contact Cornerstone Law Firm for assistance.

March 2018 Update

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The month of March has been a busy one at the Cornerstone Law Firm! This month, Attorneys David Crossett and Joel Ready have been advocates for a variety of clients, dealing with a broad range of cases and scenarios.

After one client experienced physically painful repercussions from a car accident, Attorney Crossett settled the case with a six-figure settlement. This financial relief will help compensate for personal difficulties the client has dealt with as a result of the accident.

In another case, Attorney Ready acted on behalf of a client who was charged for remaining silent when interrogated by the police (which is your right, according to the 5th Amendment of the Constitution). The charges were dismissed after Attorney Ready filed an “omnibus pretrial motion” and negotiated with the district attorneys’ office. Ultimately, the case was dismissed completely, and the client was cleared of wrongdoing. When a different client was charged with a DUI, Attorney Ready negotiated a favorable plea argument on behalf of the individual, helping the defendant avoid jail time.

Of course, not everyone deals with traumatic experiences or gets charged for a crime, but when life surprises you with difficulties, the Cornerstone Law Firm is here to help. Contact us today to let us know how we can serve you.

What is an amicus brief?

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An amicus brief is a legal document filed with a court by an organization or group that is not a formal party to an action, requesting a particular outcome. An outside group can petition the court for permission to be recognized as an amicus curiae—a “friend of the court”—who can help the court in its decision making by offering a unique perspective on a legal issue.

Amicus briefs (pronounced as “uh-MEE-cus” or alternatively, “AM-i-cus”) usually focus on a solution not proposed by either party to a lawsuit, or on a specific aspect of the proposal of one party. For example, let’s say that a dispute called Hot Dog Stand v. City reaches an appellate court over whether a hot dog is a sandwich, and thus subject to regulation in a large city. Let’s also suppose that the Hot Dog Stand owners might make two arguments: 1) that a hot dog is not a sandwich under the statute in question; or in the alternative, that even though a hot dog meets the definition of a sandwich under the statute, 2) that all regulation of sandwiches is unconstitutional under the state or federal constitution. What would a group of sandwich shops who are watching this case think? They might have a strong interest in asking the court for permission to file an amicus brief detailing the negative impact of regulations on their industry and asking the court to consider the hot dog shop’s second ruling. They might want to urge the court to rule in such a way as to help them also.

Or let’s consider a fictional case called Sultan of Middle Eastern Nation v. University in America, in which the court is considering whether a foreign ruler has to answer a civil lawsuit in the United States by a private university that claims their invention is being illegally reproduced and sold by the Sultan’s government. A non-profit group disgusted with the Sultan’s actions in his home country may file a brief detailing those abuses, urging the court to make the Sultan answerable here in America. The University can avoid bringing up an argument that will make it look like it is just crusading against the Sultan, but they may be grateful to an “unrelated” party who files such a brief, giving the court more moral support for a favorable ruling for the University.

In the legal industry, there are non-profits whose sole purpose is to advocate on specific issues, jumping into active cases to offer the court well-reasoned commentary on why a certain outcome is preferred. The Innocence Project often files amicus briefs on prisoners’ rights; the ACLU advocates for its views on the separation of church and state; the Alliance Defending Freedom advocates for broader First Amendment protections; and the Comic Book Legal Defense Fund looks for opportunities to advocate for broader protections for comic book authors and artists. You get the drift.

Amicus briefs perform an important function in our legal system, giving judges a unique perspective on an issue, and offering support for the rationale of one party or another. They also give non-profits and other groups a voice in our legal system that they might not otherwise enjoy.

At Cornerstone Law Firm, we offer to represent nonprofits or other groups who form for the purpose of presenting an argument in an ongoing case of concern in state or federal court. Our appellate attorneys have experience advocating here in Pennsylvania state courts, and in federal courts. If you have an issue you wish to take up, we welcome you to reach out to us to discuss how we can help you be involved in an issue of public concern in the courts.

What To Do If Insurance Denies Your Claim

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When an insurance company denies your claim, what should you do? Should you just accept the insurance claim denial, or should you fight it? Often times, when dealing with an insurance company to whom you have paid premiums for years, it can feel very frustrating when their denial leaves you feeling like you have few options. At Cornerstone Law Firm, we help clients every single day who have had an insurance claim denied to determine whether they should challenge the claim in court or otherwise.

There are two major things you should consider if your insurance claim has been denied:

1. What does your policy actually say?

When you signed up for an insurance policy, you received the full written policy (sometimes several days later in the mail). This policy can be thirty, forty, or even a hundred pages long, and will explain what the insurance company will do in a variety of circumstances and how the claim is to be administered. Does the policy cover what happened in your situation? Is there a provision that they referenced in their denial letter that governs your claim? If so, that provision is the starting point of your inquiry—but it is not the ending point.

2. What does the law of your State say?

What does the law of your state say about insurance contracts? States have laws and regulations governing insurance contracts. Here in Pennsylvania, the rules include a provision that says that insurance contracts should be construed against the insurance company if there is any question in how the contract should be properly interpreted. The law also says that if a contract for insurance violates the insured’s reasonable understanding of what they were purchasing insurance for, that provision is unenforceable. Thus, even if your insurance policy says that the denial of coverage is proper, that might not be the case.

Speak to an experienced insurance attorney.

If you have received a denial of an insurance claim, you should speak to an experienced attorney to ask them what to do in your situation. The attorneys at the Cornerstone Law Firm have substantial experience dealing with insurance company denials. We help clients to look through their policy to find the provisions at issue, look at the correspondence from the insurance company, and we can help you understand the law governing insurance contracts.

If you have been denied on an insurance claim for your car, house, or anything you may have insured, please call us at 610-926-7875 so that we can help you figure out your next steps.

What do I do if I’m an Executor? An overview of Estate Administration

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When a loved one passes away what are the responsibilities that you have as the next of kin in regards to estate administration? In this post, I want to take the opportunity to give you an overview of the process, and to help you prepare for what you’ll expect in meeting with an Estate Administration attorney.

  1. Marshalling the Assets

The first step in Estate Administration is marshalling the assets of the Deceased. They may have investments, stocks, bonds, IRAs, life insurance policies, 401ks and other retirement accounts, as well as bank accounts, trust funds, real property, personal property and other items of value. The Executor—that is, the individual charged with administrating the estate—will have to pull together information about each of these assets in order to assist the attorneys to make intelligent decisions about how to handle these matters. As part of marshalling the assets, there need to be appraisals done on certain items. Particularly where a business fixture or piece of equipment is difficult to value, appraisers will need to be brought in to give an opinion of the fair market value of such an item. This is true even of items that will be claimed by members of the family. Perhaps a ring or other family heirloom will be passed down to a daughter as part of her share the estate. Nonetheless, there will usually need to be an appraisal done to determine what portion of her share of the estate will be diminished by her taking that item of value instead of money.

  1. Filing Tax Returns

They say there are two things you cannot avoid in life: death and taxes and this is particularly true at death when you have to pay more taxes. Despite the fact that an individual has had to pay income tax their whole life, they will usually have to pay an estate tax when they pass away. Even when the estate itself is not taxed, frequently the amount that is passed to the non-spouse will have to be taxed. This includes those items of value discussed earlier. Inheritance tax must be assessed, and an Inheritance Tax Return (REV-1500) must be filed within a tight time period with the Pennsylvania Department of Revenue. It is important to be diligent about preparing to file the tax return. Filing a tax return within three months brings a discount on the overall tax that has to be paid. In large estates, this discount can be a substantial amount of money. Accordingly, it is important to move quickly to prepare and file this tax return.

  1. Distribution of Assets

After all the assets have been marshalled, valued and the taxes have been paid, it is time to distribute the assets from the estate. Distribution of the assets happens according to the Decedent’s Last Will and Testament, or, if there is no Will, according to laws governing intestate succession. This is the part you’re probably most familiar with, and of course, it’s the part where the Executor is rewarded for his hard work in administering the estate.

Conclusion: What to Do if You’ve been Named an Executor

When a loved one passes away, it is best not to delay decisions about the estate. Probating the Will, if necessary, and marshaling and distributing the assets must occur, and the sooner it occurs the more money that will be able to be passed to the heirs. If you have questions in regards to Estate Administration or if a loved one has recently passed away and you need help administrating their estate, call Cornerstone Law Firm and let us know how we can help you.

3 Reasons You Need a Will

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Everyone needs a will. Every year, individuals die without wills, and their families deal with a great deal of unnecessary headache, stress and sorrow because of the unpreparedness of the family member who passed away. But despite the fact that everyone needs a will, many people don’t know why. So here are 3 reasons you should have a will—yes, you!

  1. Wills dictate who takes your possessions.

This is the obvious reason, of course. A will is the document that decides who takes your possessions and your property at the time of your death. Even if your family knows who you were closest to, the law will not necessarily pass your possessions to that person. A will is a necessary and easy way to dictate who will take your possessions upon your passing, and, perhaps more importantly and in some situations, who will not take your possessions when you pass.

  1. Wills determine who takes custody of your minor children upon your passing.

This is one of the more frightening and concerning potential outcomes that a will helps to prevent. When you pass away, a court will be in charge of determining who will take custody of your minor children. A will provides clear and strong evidence of who it is you intended to have your children, and this will be upheld by the courts absent extraordinary circumstances. If you do not do this, your children could potentially be put in midst of a protracted legal custody battle. This is true even if everyone in the family is clear on who should have custody of the children or who you wish to have custody of the children. A court will still have the final say because no will was left to establish who you wished to have custody of your children.

If the other parent of your children is in the picture—married to you, or otherwise sharing custody with you—then this is not as much of a concern; the court will allow custody to the other parent. However, if both of you are to pass away suddenly, this would still be a potential problem that a will can solve. Simply put, when it comes to something as important as custody of your children there is no reason to take any chances.

  1. Wills determine who will be the Executor or Executrix of your Estate.

These may sound like fancy legal terms to many readers, but selecting who will be the Executor (or Executrix if a female) of your Estate is a very important decision. First, in selecting your Executor it is important to consider who will carry out your wishes at your death. Second, in selecting your Executor, you are selecting someone that will make very important decisions if there are ambiguities in your will or situations that you could not have predicted. Your Executor may also be responsible for setting up Trusts for your children if they are still minors and dealing with other details. Third and finally, someone has to take the responsibility to deal with your Estate, and that individual will in all likelihood be paid from your Estate for their time and trouble. Making sure that the person who is going to receive some payment from your Estate is someone you trust, respect and appreciate is important.

Conclusion: Wills are For Everyone

Wills are important for every individual to have. You need a will to handle the affairs of your Estate after your death. But in some cases, a Trust, such as a Revocable Living Trust is a better option. Speaking with an estate planning attorney is important, and it shouldn’t be put off. Call Cornerstone Law Firm today and speak with one of our attorneys about getting started on your will.

6 Benefits to Limited Liability Companies

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What is an LLC, and why should you get one? LLCs are a powerful and flexible corporate form that provide incredible opportunities and protection for business owners. Even if you’re a small business, an LLC can provide a platform to grow and protect your business—and if you’re large, it’s definitely time to look at the benefits an LLC can provide.

 

LLCs: 1. Protect Assets. 2. Promote Investment. 3. Grow your business.

1. LLCs Shield You from Liability

LLC stands for Limited Liability Company. When you form an LLC, you’re forming a company that limits your liability. LLCs are a “shield” that limit your legal liability for business decisions and mistakes that might otherwise harm you or your family.

For example, let’s say your business is installing hot water heaters. You sign a contract to install a hot water heater in a large office building, and you install the heater, but unfortunately, you are having a bad day, and you make a mistake, and the heater bursts and causes flooding in the basement of this office, or it causes someone to get burned, or maybe it just doesn’t work, and the business loses money because they don’t have hot water for a few days.

So what happens? You get sued—you do, personally—because you messed up. You breached a contract, your negligence caused an injury, your product that you re-sell subjects you to strict products liability, or all of the above. When this business and the injured employee and the office building’s owner or property management company sue you, they’re suing you, personally. If they win, they can collect that judgment by putting a lien on your house, by attaching your bank account, etc.

Now how would an LLC have helped you here? Simply put, if you run a company and make your contracts in the company’s name, then your breach of contract and other issues result in a suit against the company. That means your personal assets are not at risk. You aren’t personally being sued, you don’t personally have to report lawsuits against you personally if you’re seeking a mortgage, you can sleep a little better at night. It doesn’t mean your business won’t suffer from the lawsuit, it just means there’s a sealed wall between you and your company. Your company, in other words, limits your liability.

It’s important to note this doesn’t mean you can’t ever be sued personally for your actions, but if you set up your LLC properly, you will eliminate most of the situations in which you can be personally sued.

2. LLCs Allow Complex Forms of Ownership

If you’re a small business with a single owner, you can skip this one, but for family-owned businesses or startups with your college buddies that have quickly become lop-sided, an LLC allows you to setup virtually any ownership structure that you can dream of.

Does one person handle one aspect of the business? Does someone do most of the day-to-day management, while others contributions are physical assets or money? Such “lopsided” investments can be difficult to manage without an LLC as everyone’s contribution should be valued, but not everyone needs their “hands in the stew” of day-to-day management. Setting up your LLC with a board of directors or a day-to-day manager but giving financial ownership to those who’ve invested allows you to solicit investment without giving away power.

Similarly, using LLCs to shield risky investments from assets allows a business to grow in a more stable fashion. One example is setting up an LLC to protect real estate investments from one another. Using an LLC to purchase property, and setting up separate LLCs for each property allows a real estate business to protect one piece of property from the dangers that might come from another. If an injury occurs on one property, there is no liability attaching to a property owned by another LLC under the same company.

3. LLCs allow Outside Investment

Do you want to take on angel investors, or sell stock? The terminology is different (stock refers to a corporation’s ownership structure), but the function is the same. By offering investors a different class of “membership” (ownership), you can sell financial stake in your company without giving up control to the investors.

4. LLCs can be sold

Do you foresee the possibility that you might want to sell your business down the road? Your business may be satisfying now, but in thirty years, will you want to consider a second career? Would you like to be bought out for a huge amount of money in a few years by a company that thinks they can do something huge with your startup? Setting up an LLC makes it much easier to sell your business to someone who wants to take over your client list and assets one day.

Technically, you can always sell your business, even without an LLC. But many lawyers will advise a potential buyer to look elsewhere if your business is not well organized. Having an LLC that is properly setup and running encourages a potential buyer that their purchase will be easy to roll over into a new or existing business.

5. LLCs Let you Take Risks and Go Bankrupt

I realize this sounds a little wild, but have you ever wanted to try a risky business? Have you ever wanted to take a leap? As discussed in number one, above, forming an LLC allows you to protect your personal assets. If your business goes belly-up, you aren’t putting your house at risk, or your personal credit.

Note, however, that this point is somewhat limited. Yes, the LLC will be liable for debts, but if you’re taking out enormous loans for a young LLC, you may be forced to co-sign. As always, it’s not just forming the LLC that matters—it’s how you manage and run it.

6. LLCs are the New Corporations

What about corporations? Should you consider one of those instead of an LLC? In short, LLCs are a new corporate form that has replaced corporations. Many companies will continue to run as corporations—and there’s nothing wrong with that. But new businesses starting up today should use LLCs except in very limited circumstances (where you expect to be publicly traded, or where you want to be nonprofit). Even those exceptions may soon be reduced.

So should you form an LLC?

Forming an LLC is almost never a bad idea, but the return on investment depends on the nature of your business and what your various risks are. Call the Cornerstone Law Firm, LLC today, and let’s talk about how we can help your business grow.