Copyright Clearance in Self-Publishing

Self-publishing is a growing industry and an incredible opportunity for authors to get their message out without the interference of a publisher or publishing house. But self-publishing also comes with a number of legal dangers, including copyright infringement. If you are using images that you yourself did not create, whether photos or drawings, then this article is for you. Here are a couple tips on how to avoid copyright issues when publishing a book.

1. Fair use does not mean what you think it means.

A common response to these copyright concerns is to say that fair use will protect you in your use of images. If your book is educational in nature, fair use is especially tempting. But there are a few things you should keep in mind. The first is that fair use does not just mean what you think is fair. It is a complex legal doctrine that relies on four factors, and the way these factors are analyzed by courts is not always the way you might expect them to be. For example, the “educational” nature of a work is more complex than simply saying it teaches something. And even if you don’t expect your book to sell many copies, its commercial nature already puts judges in a skeptical position on a fair use claim.

A second thing to keep in mind is that fair use is a defense. That means it is only implicated when you are being sued. For most individuals being sued means you have already lost. The costs and stress of a lawsuit are enough to overwhelm most people and persuade them not to move forward. Such parties often settle or pay out the demands from someone who claims they were aggrieved in the copyright process. In short, do not simply rely on your understanding of the factors that you look up online in considering fair use. It is important to have a legal opinion before you rely on it in publishing photos.

2. There are more sources than ever for photos you can use.

Just as self-publishing has lowered the barrier to entry on publishing documents, there are more places than ever to obtain legitimate free photos to use without paying royalties or without fear of a lawsuit. Please note that Google is not one of these places. Rather, it is important to go through legitimate vendors who secure the rights to photos and can provide print licenses for their use. Of course, you can also obtain photos through other sources, such as through local artists or designers who can create work for you.

Conclusion

Publishing a book is an exciting opportunity, but it can come with legal dangers. Be sure to consult an intellectual property lawyer for sound opinions on what photos you can use and what ways to avoid potential legal trouble. At Cornerstone Law Firm our copyright attorneys can view manuscripts for you and give advice on civic photos and whether you can use them. Contact us today to set up a consultation.

When a Contractor Doesn’t Finish the Job

Cornerstone Law Firm offered a legal tip to Redfin on how to handle things when a contractor doesn’t finish a home renovation project.

“If you find yourself in a situation where a contractor has not performed as agreed upon, you have legal remedies. You can first reach out to your state’s Attorney General’s office and file a complaint. The office will investigate the claim and encourage the contractor to remedy the issue if your complaint has merit. If this doesn’t work, you can file a complaint at a local District Court, which can handle judgments up to $12,000 and is designed to be accessible to the public. You can also research other options to take against licensed contractors who don’t honor their contracts. For example, Pennsylvania’s Home Improvement Consumer Protection Act provides strong statutory language against contractors who fail to abide by the requisite legal requirements in entering into and completing home improvement contracts.”

For an extensive overview of ways to deal with unfinished renovations, read the full article here on Redfin’s blog.

 

Three Risks for Small Businesses

If you’re a business owner assessing risks and legal problems, there are three concerns that should be at the top of your list. Appropriately preparing for these risks can help you to avoid drawn out litigation and financial catastrophe.

1. Ownership disputes

Unfortunately, small businesses are more prone to ownership disputes and corporate freeze-outs than larger businesses. This is for a host of reasons, but one of them is because small businesses do not always adequately document their ownership structure. This can even be true in situations where there’s only one owner.

If you have a 50/50 business arrangement, do you have adequate safeguards in place to allow for what happens in a deadlock? Even with a larger board of owners, what happens when you have a tie? Or what happens when the board room becomes increasingly heated, and one group of voters feel that they’re being frozen out of the company by virtue of not having sufficient voting power? In all of these situations, expensive lawsuits can result, and the discord that goes along with such a lawsuit can kill your business success.

To avoid these problems, it’s important to have a sufficient operating agreement or bylaws to document contracts with highly compensated employees and ensure that frequent communication keeps your boardroom out of chaos.

2. Contracts with vendors

All too often, small-to-medium sized businesses rely on “course of performance” contracts, which are essentially unwritten deals between the business and its vendors. This can be acceptable when the deals are small and the amount of money being risked in each transaction isn’t enough to sink your business. It becomes very serious when large customers suddenly stop paying or large suppliers breach on essential terms of the contract and refuse to work out even a partial refund for their failures.

Businesses often find themselves in the difficult position of having to decide whether to bring an expensive lawsuit without clear contractual remedies to recover their attorneys’ fees and other costs. A business attorney can advise you on how to draft good contracts with your vendors that don’t tie anyone’s hands, and which allow for flexibility as your business relationship matures. This is another area where having a dedicated corporate council can be extremely helpful.

3. Insurance

Is your business properly insured? Having general liability and business insurance is important not just for slips and falls and delivery drivers, but also for situations where someone accuses you of using their artwork on your website, sues you for trademark infringement, claims you’ve violated the Americans with Disabilities Act, and more. Obtaining proper insurance means not only that you are covered for any damages that you are found to have caused, but more importantly, a good insurance policy will ensure that your attorney is paid by insurance and not out of your general operating budget.

Running a business doesn’t have to be risky

These are just a few legal risks you should consider regarding your business. Give us a call today to speak with one of our attorneys about how we can protect you from legal risks and help you maximize your business success.

How Businesses Use Small Claims Court to Save Money

One of the best kept secrets in business law is how companies can use small claims court to save money. In Pennsylvania, Magisterial District Courts (sometimes called “MDJs” for the Magisterial District Judges that sit in them) act as our small claims’ courts. Learning to navigate them can save time and money. MDJs have concurrent jurisdiction with the county Courts of Common Pleas for claims up to twelve thousand dollars, meaning you can file your claim in “big court” or in the MDJ.

Suing Without an Attorney

When small businesses have minor claims against business associates or customers who haven’t paid bills, the MDJs are a great venue to consider. Going to court in an MDJ does not always require the services of an attorney. Technically, any corporate entity, whether an LLC, a corporation, or similarly otherwise, is required to hire an attorney. This is because a corporate entity cannot represent itself the way an individual can. A corporate entity is technically a separate person. However, in practice, most MDJs allow a business to be represented by an owner or other representative pro se. As a practical matter, this means that businesses can pursue overdue bills, deadbeat tenants, and contract-breaching business associates without the expense of hiring a lawyer.

Of course, there are many benefits to having a lawyer, but even businesses that utilize the services of a corporate attorney will seek advice from this attorney on a specific case before deciding whether to undertake filing the suit and handling it themselves.

Small Claims Court is Quick

Another reason that small businesses utilize small claims court in Pennsylvania to save money is because the process to file in the MDJ is fast and leads to a hearing usually within around sixty days. Compared to filing in the Court of Common Pleas (the court that governs a county), this is lightning speed.

The MDJ will have one day of hearings, without any “discovery” process for producing documents between the parties, and without the litigation that accompanies the months of waiting on a response. MDJs don’t require complicated pleadings, and typically make a decision the day of the hearing or within a few days thereafter.

Small Claims Court gets the attention of your adversary

A final benefit to the MDJ process is that it is typically a simple way to get someone’s attention. It shows that you’re serious about collecting an overdue bill and triggers them to pay an attorney or at least respond. If they fail to show up to court, judgment is issued against them. Although you have the right to appeal from an MDJ decision within 30 days, as a practical matter, it often ends disputes and allows the parties to settle in the courtroom.

Conclusion: Call us for advice on how to handle your MDJ hearing

Our attorneys have helped business clients with hundreds of appearances before MDJs, and we’re ready to help you.  Call us at Cornerstone Law Firm today to discuss how your business could save money by utilizing small claims court.

May 2021 Update

May 2021 has been filled with trials and advanced litigation for the attorneys of Cornerstone Law Firm. On the civil side, attorney Joel Ready spent time litigating a partnership dispute in Lehigh County court, giving advice to several businesses to avoid personnel and human resources litigation, promulgating discovery in personal injury cases based in Berks County and preparing for a summer of trials. A number of Cornerstone Law’s criminal clients were able to obtain trial dates this month, allowing them to finally pursue their innocence in a proceeding before a jury.

On the transactional side, several businesses hired Cornerstone Law Firm to draft contracts and to create new bylaws and other operating agreements for their businesses and nonprofits. These ranged from employment agreements to more complex inter-business cooperation agreements, and also agreements to resolve potential areas of dispute between rival businesses.

Attorney Crossett has been involved in several mediation for personal injury clients, obtaining settlement for car accident victims and those injured in other accidents. Furthermore, Attorney Crossett has finalized complex land deals this month for clients with conflicting real estate claims.

At Cornerstone Law Firm we are happy that the world is slowly getting back to normal, and we are looking forward to the nice weather in the summer months!

The Importance of Putting it in Writing

One of the most common causes of legal disputes is the failure to get an agreement, however small, in writing. Today, on the Cornerstone Law Blog, we want to tackle why it is so important to put your thoughts in writing when you and a friend or business associate are agreeing to a contract.

To begin with, it’s important to note that agreements are typically binding even if they are not in writing. Contrary to popular belief, most oral agreements are legally enforceable — if you can prove them (although there are exceptions, such as when dealing with land, with contracts for goods over a certain price, and in certain industries such as home improvement).

So why is it important to get your agreement in writing if it can be enforced even without a written document?

Why get it in writing?

  1. The most important reason is it is hard to prove what an oral agreement was for.

    Unscrupulous parties can lie about what was agreed to, and even when everyone is being honest, people’s memories tend to fade surprisingly quickly. Relying on someone else’s memory to agree with your own is a recipe for disaster in enforcing your contracts.

  2. Misunderstandings are harder to smoke out and deal with when a contract is not written down.

    It may sound funny, but there have been many lawsuits litigated over something as simple as the meaning of “here.” If someone agreed to bring a product “here,” where is “here?” If the agreement was made over the phone, one person may have assumed that “here” meant someone’s home, when in fact they meant their business some many miles away.
    Sometimes this type of disagreement can be cleared up easily, but in other cases it can be a mistake that can cost substantial sums of money.

    The point is this: without putting something in writing and taking the time to clarify simple points of misunderstanding, you can end up in a contract dispute that neither party brought about by their malice or ill will.

  3. It helps you to think about things that you weren’t really considering when you first made the contract.

    If two people get together and agree orally to a “handshake deal,” they may not be thinking about questions such as, “What happens if a pandemic shuts down the world and one side can’t deliver the product because the government won’t allow it?”

    And what happens if there is a good-faith dispute over the contract? Do the two of you first have to go and deal with it in front of a board of arbiters, or do you got straight to court? And which court? Where can you be sued? What do you do if a labor shortage or a war in another country suddenly makes it impossible to get the raw materials necessary to produce the product you’ve ordered? 

There are hundreds of potential questions that a good transactional lawyer can help you to work your way through. Even without the involvement of a lawyer, there are things you may think of as you put the agreement in writing that will help you to confront potential misunderstanding and disagreements that will cause problems down the road. 

How can you put it in writing without being overly difficult?

Sometimes business owners in particular are concerned that continually putting contracts in front of their clients or customers will cause them concern and will scare them off of working with them further. In most cases, this concern is not well-founded.

Most customers understand and even appreciate the time that you will take to put things in writing. But if they don’t or if you are concerned that the time necessary to reach a written agreement will make it difficult for you to continually get new contracts drafted, one approach is simply to put everything into an email or even a text message.

Once again, putting everything in writing will help you to confront disagreements that may arise between you and the other party. In most cases, it is best practice is to say, “Are you in agreement with all of these things?” at the end of the email (or something to that effect). Getting them to respond back will in many cases create a binding written contract between you two. 

Note: this article is not meant as legal advice.

There are specialized areas of law where a simple email or text message is not sufficient. It’s important that you talk to a lawyer about your specific concerns. But in the meantime, we hope that the tips in this article will help you in your day to day business and personal affairs to ensure that your contractual agreements are being memorialized in writing.

For help in drafting or reviewing contracts, contact Cornerstone Law Firm today.

Injunctions for Breach of Contract

Contracts are formed when two or more parties reach an agreement that involves an exchange of promises. When one party breaks their promise and fails to reform their obligation on their contract the other party to the contract often asks, “Can I seek an injunction requiring the other party to perform?”

Injunctions Court Orders Requiring Performance

An injunction is a court order that requires someone to refrain from doing something you don’t want them to do or requires them to do something that you want them to do. We’ve discussed injunctions elsewhere on the blog. However, it is important to know that injunctions are typically very difficult to get in contract cases, even in fairly extreme situations. Injunctions require an irreparable harm (that is, something other than monetary damages).

In other words, you have to be able to show a court that if the court doesn’t act, you will suffer damages that can’t be adequately compensated by money. In most situations involving a breach of contract, that is not possible. Rather, if a party breaks their promise, they can pay you the damages that theirs breach has caused you.

Damages

There are several different ways that you can measure how you have been financially damaged by someone’s failure to perform their agreement under a contract. The bottom line is the court will seek to place you in a position where you are made whole and put in the same position that you would have been in had the contract been performed. However, this doesn’t typically include repayment of your legal fees, the costs and frustration of finding a replacement party to perform the contract for you, nor anything for the sense of moral outrage that people often feel when a promise to perform under a contract is broken.

Conclusion

You may not be able to obtain an injunction regarding your contract, but this doesn’t mean that you should ignore the problem or not pursue it in court. Legal action regarding a breach of contract will often jolt the other party into action. At the very least, it will allow you to recover the damages you’ve incurred as a result of what’s happened.

At Cornerstone Law Firm, our litigation attorneys can help you analyze your case. Call today to discuss your situation and let us know how we can help you. 

“I’ve been Charged with a Crime in Union County. What Now?”

If you’ve been charged with a crime in Union County, Pennsylvania and you’re wondering what happens next in the process, you’ve come to the right place. The responsibility of filing charges in Union County, Pennsylvania falls to local police departments as well as the Pennsylvania State Police who have jurisdiction to file charges. But ultimately the responsibility of proceeding with those charges belongs to the District Attorney for Union County, Pete Johnson.

Here’s the process that you will encounter if you’ve been charged with a crime.

Preliminary Arraignment and Preliminary Hearing

union county court

We’ve written before about preliminary arraignments and preliminary hearings in criminal cases. Union County’s process is not different in that the preliminary arraignment and preliminary hearing are the defendant’s first opportunity to hear the charges against him or her and to hear the evidence that the Commonwealth has to prove the crime.

The bar for the Commonwealth to prove their case in a preliminary hearing is very low. The Commonwealth need only prove that they have probable cause for bringing the charges. If they’re able to prove that, then the charges move forward to more serious stages of criminal litigation.

Omnibus Pretrial Motion

Assuming the Commonwealth is able to meet its burden and move past the preliminary hearing, the next stage in the process is for the defendant if they wish to request discovery and file an omnibus pretrial motion. This motion allows the defendant to challenge the charges against them and to have them assessed at a much higher standard that is construed against the Commonwealth.

If the Commonwealth will be unable to meet its burden, the charges will be dismissed. Omnibus pretrial motions are a unique opportunity for criminal defendants to bring a motion to suppress evidence or to bring a habeas corpus motion to have the charges dismissed entirely.

Disposition and Trial

Most cases in Union County, Pennsylvania are resolved at a disposition hearing long before trial. This is an opportunity to reach a plea agreement with the Commonwealth, enter into a diversionary program such as ARD (accelerated rehabilitative disposition) or to reach some other arrangement. Disposition hearings are typically where an experienced attorney will have worked out the best deal possible for a client.

However, many criminal defendants don’t wish to plead guilty. They want to go forward to trial. This might be because the deal offered is not very good or because they believe that in principle they are right and shouldn’t have to agree to some sort of deal. In this case, it is absolutely vital to have an experienced criminal defense attorney who is able to go forward to trial and handle the charges by aggressively challenging the Commonwealth’s case.

Conclusion

At Cornerstone Law Firm, we help criminal defendants in Union County to defend against criminal charges by defending them at all stages in the litigation process, including at trial. Call us today to discuss your charges and to have a free consultation on what we can do for you.

What is Impeachment?

Continuing our “Cornerstone on the Constitution” series, we have received a number of requests to answer, “What is impeachment? How does it work? What are the results of the impeachment process?” Although impeachment is one of the hottest political topics in America right now, it is relatively misunderstood.

Impeachment is authorized in the Constitution for all officers of the government of the executive and judicial branches. While the House and Senate retain the power to expel their own members by a vote of their own house, the members of the executive and judicial branches have to be removed by the specific process of a majority vote in the House and two-thirds majority in the Senate. This is done to protect the independence of the executive and judiciary from the legislative branch.

Background

impeachment

It may be hard to believe, but at the founding of the country, the founding fathers were mostly concerned about the potential for abusive power in the legislative branch. They believed that Congress would attempt to arrogate all power to itself and rule the country without the input of the other two branches.

Indeed, Congress is the most powerful branch in the Constitutional frame of government. Congress can limit the president’s salary, define his authority over foreign affairs to a large degree, fire all of his staff and even auction off the White House if they so choose! Accordingly, it’s not surprising that Congress also retains the power to impeach the president if they believe that the president is abusing his power.

Cause for Impeachment

The Constitution allows impeachment of the president in the case of “high crimes and misdemeanors.” Despite the best efforts of historians and legal scholars, this phrase remains largely undefined. It certainly seems to imply that an actual crime must have been committed, but the debates in the Constitutional Convention about the phrase suggest that it was meant to be a check on an abuse of political power even if it were not necessarily able to be defined as a crime.

The use of the word “high” in response to these crimes strongly supports the argument that these are meant to be more than “minor” crimes that are the subject of an indictment. Simply put, if the president is caught jay-walking, that is probably not going to be legitimate grounds for impeachment. 

However, the situation is somewhat complicated by the fact that the Supreme Court has ruled that federal courts may not interfere with the process of impeachment. Put more simply, they have determined that it is a “political question” that is left to the legislative branch and the legislative branch alone to determine. Accordingly, there is no right of appeal from the removal from impeachment, and it is permanent. 

Impeachment Myths

So, let’s tackle a couple of common myths about impeachment.

  1. First, impeachment is not removal from office. Think of impeachment as formal charges being brought against the president of the United States by the House. A group of “prosecutors” from the House are selected to bring the case against the president, and the Senate is the jury.

    The Chief Justice acts as the judge in any trial would act—ruling on the admissibility of evidence and keeping order in the Senate chamber. This is the only time that a judicial official is constitutionally mandated (or permitted) to preside over any proceeding in any other branch of the government.
  2. No, impeaching a President doesn’t mean he is ineligible to be President again. Conversely, it also doesn’t mean he can run for a third term. And impeachment does not remove the president—it only sets up his trial in the Senate. Our two previously-impeached presidents were not removed from office and served out their term in the White House.

No one can say for sure how this impeachment process will end up, but we hope this overview helps you understand this very important constitutional process!

Independent Contractor vs. Employee – Does it Matter?

If you have signed a contract of employment, you may have noticed a line that stated you are an “independent contractor” or an employee. Perhaps it’s a full paragraph dedicated to the topic, or maybe it’s simply assumed in the title of the agreement. When difficulties arise in an employment relationship, many people wonder, what is the significance of this determination of independent contractor vs. employee?

People are often surprised to learn that the mere designation of an employee as a “1099” employee (named for the IRS form on which independent contractors report their income), and even the filing of taxes in accordance with that designation, does not necessarily mean that the individual is actually an independent contractor rather than an employee.

As a general rule, employees have greater legal rights than independent contractors. They can bring suit under a range of federal and state laws for unpaid wages that entitle them to financial penalties and attorneys’ fees. On the other hand, contractors often have to resort to common law claims, such as breach of contract. In addition, some government departments will help employees recover unpaid wages, while contractors are largely on their own.

Here are several factors that a court will consider in determining whether someone is an independent contractor (a 1099) or an employee. None of these factors is conclusive, on its own but rather they are all considered together by a court, in addition to other factors:

1. Exclusive Employment

independent contractor

One of the most important factors in determining whether someone is an employee or an independent contractor is whether their employment is required to be exclusive with that employer.

For example: If you work at a doctor’s office and your employer requires you to sign an agreement that you will not work at any other medical facility, or in even more extreme cases, that you will not work at any other job without your employer’s permission, then this tends to suggest that you are an “employee.” On the other hand,

2. Right of Supervision

Independent contractors are generally an unsupervised bunch. A true independent contractor is someone who is hired to come into a job site, do a job, and then leave, even if it’s on a regular basis.

For example: The engineer who repairs machines at a shop may come in only as required for individual repairs. No one stands over his shoulder and tells him what to do, how long to be there, what hours to put in, or anything else like that. Rather, he is hired for specific jobs, brought in, and then he leaves.

The right to control someone’s work and to tell them what to do, when to be at the work site, when to leave, what to wear, and many other incidentals of employment, imply a direct employment relationship rather than that of an independent contractor. Once again, none of these factors are binding, but this is another consideration. 

3. How the Worker is Paid

Less important factors, such as payment, should also be considered. Are you paid on a salary, a commission, or are you paid by some other arrangement? Do you invoice the company or do they determine your pay for you? Each of these is an important factor in determining whether you’re an independent contractor or an employee.

4. Work in A Specialized Field

In some cases, statutory law controls whether you are an employee or an independent contractor. For example, due to the abuse of “independent contractor” status by employers, the legislature in Pennsylvania has passed an important statute governing whether construction workers are employees or independent contractors.

Many construction employers prefer to classify all of their employees as independent contractors on the idea that they then can avoid Worker’s Compensation payments. This has been determined to be unlawful in Pennsylvania, and the statute provides for a specific set of factors that must be considered. Thus, if you’re in construction or any other number of specialized and regulated fields, your status as an employee or independent contractor may depend on a more specialized analysis.

Conclusion

It is important to note that nothing in this article should be taken as legal advice. Every situation involving independent contractors and employees is unique and depends on more factors than we can list here. However, the important takeaway from this article is this: just because you’re classified as an independent contractor doesn’t mean that you actually are and vice versa. Properly setting up an employment arrangement from the start is important, and even after things have gone south between an employer and an employee, making these determinations can be important. 

Furthermore, if you find that there are statutory protections for you as an employee that are not being given you, your employer’s response that you’re an independent contractor is not necessarily the final word. Call the attorneys at the Cornerstone Law Firm today, and let’s discuss with you how we can clarify your existing relationship or protect you if your rights are being violated or how we can ensure a strong legal relationship with your workers.