Friday, August 22, 2014

BYOD - Reimbursement required in California

       On August 12, 2014, a California Court of Appeals issued a ruling that will affect employers that have instituted or are planning to institute bring your own device (BYOD) policies.

       In Cochran v. Schwan's Home Service, Inc.[1], the appellate panel found that, under California Labor Code section 2802, a business must reimburse its employees for a "reasonable percentage of their cell phone bills" when the employee must use their personal cell phones for "work-related calls".  The Court stated that the purpose of this law was to "to prevent employers from passing operating costs on to their employees." 

        Although this ruling was directed to an employee using a personal cell phone for calls, this reasoning should apply to an employee using their personal cell phone's data plan to check work e-mail or other data related activity.  Thus, employers who encourage their employees to use their own devices for work related activities and do not provide their employees with an alternative method to complete the work related activities will have to reimburse a portion of their employee device costs.

- HP


Sunday, August 17, 2014

Copyright – Is that a published work?

             If you create a sculptural work and then publicly display it, is that work published or unpublished?

            If you post a photo on a website, is that work published or unpublished?

            The answer is not as simple as it appears.  For purposes of U.S. Copyright Law (17 U.S.C. § 101), publication means:

“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not itself constitute publication.”
            Thus, the key question, generally, is whether the copyright holder has authorized others to make a copy of the work.

            In the case of the above sculptural work, the work probably is unpublished because a "public . . . display of a work does not itself constitute publication".  However, it depends on where the work is being publicly displayed.  If you display the work in an art gallery, which is offering the work for sale, then it would be published.

            In the case of the photo posted on a website, the work may or may not be published.  It depends on a number of factors concerning the authority to make a copy of the photo, such as the terms and conditions of the website, whether the website has any protection to restrict copying or use of the photo, and whether the photo is watermarked. Based on the facts, one court found that "posting the pictures to the website [without any protection to restrict copying or use of the photo] and making them accessible to others for distribution is considered a publication." William Wade Waller Co. v. Nexstar Broad., Inc., No. 4-10-CV-00764 GTE, 2011 WL 2648584, at *2 (E.D. Ark. July 6, 2011).  But, another court found that posting images on a website was not publication. McLaren v. Chico’s FAS, Inc., No. 10 Civ. 2481(JSR), 2010 WL 4615772, at *1 (S.D.N.Y. Nov. 9, 2010) (unpublished) (citing Einhorn v. Mergatroyd Prods., 426 F.Supp.2d 189, 196-197 (S.D.N.Y. 2006) (noting that "making a work available [on the Internet], even assuming it constituted 'distribution,' did not involve 'sale or other transfer of ownership, or by rental, lease or lending.' ").

            Determining whether a work is published or unpublished is important because it affects the window of time you have to register the work.  If the work is not timely registered, then you could lose the ability to collect attorney's fees and statutory damages for infringement.

- HP

Thursday, August 7, 2014

Trademark - Is that trademark license a NY franchise?

        Under a traditional franchise analysis, like the federal franchise regulations [1] or many other state franchise laws, a franchise is any commercial business relationship that satisfies the following three elements:

        1.   Franchisor provides a trademark or other commercial symbol;
        2.   Franchisor directly or indirectly exercise a significant amount of control over or provide significant assistance to the franchisee; and
        3.   Franchisee pays the franchisor a fee of $500 or more during the first six months of operation.

        However, New York franchise law is not traditional.  It is much broader.  Under NY Law [2], the three elements have been reduced to two elements:

        1.  Franchisee pays the franchisor, directly or indirectly, a franchise fee; and
        2.  Franchisor
                a.  provides a trademark or other commercial symbol, or
                b.  provides a marketing plan or system prescribed in substantial part by a franchisor.

        Thus, many agreements that might not be a franchise under the traditional analysis become a franchise under NY law, including a simple trademark license where a royalty is being paid.

        If you are considering licensing a trademark to a business in New York, you have a few options:  (1) having no fee, (2) requesting an exemption from the New York Attorney General, or (3) refusing to grant a license to anyone located in New York.

        Please feel free to contact us if you have any questions.

- HP
[1]             16 C.F.R. Part 436
[2]             New York Franchise Sales Act, New York General Business Law Sections 680-695.