Nasir and Matt relive their top moments from 2014.
NASIR: Happy New Year!
Welcome to our Best of 2014 episode of Legally Sound Smart Business! Welcome to our show!
My name is Nasir Pasha.
MATT: And I’m Matt Staub.
I guess you didn’t need me to be here. You could have done this by yourself but it’s all right. Thanks for having me.
NASIR: Actually, I didn’t even know you were here. That’s really weird.
So, yeah, so we’ve had a huge year; a lot of legal issues that we covered. I think Matthew, our audio producer, has a nice surprise for you guys to put together a few nice little clips for this Best of 2014 episode.
MATT: Yeah, it should be a good one. I’m not sure right now as we’re recording what those “best of” are going to be but, really, all of them are good in my opinion so you can’t really go wrong.
NASIR: Well, what’s interesting is the actual Best of 2014 is just going to be one long audio file of all the episodes put together. It’s going to be like a 20- or 30-hour episode but probably more than that.
MATT: Yeah, it’d be more than that, I would think. I don’t think you could have a podcast file that large.
NASIR: Well, enjoy your week of listening and we’ll be back in a few days.
Keep it sound and keep it smart.
MATT: Let’s get right into it this week. There’s a story that came out. It’s going to be very interesting what happens with this and it’s going to be good news for some business owners.
NASIR: Yeah, I think it’s huge.
MATT: Yeah, and I can’t remember anything like this happening before. It was a lawsuit involving Yelp. It was in Virginia. There’s a company that had all these negative reviews and I believe they’re also anonymous reviews so the people didn’t say who they were and, essentially, there was a lawsuit that happened and Yelp was required to turn over the information of those so-called anonymous reviews which, like I said, this is going to be a big precedent. It’ll be interesting to see what happens. This was in Virginia but it will be really interesting to see what happens in other states and, just, if anything follows up with an appeal.
NASIR: This is where you have anonymous reviewers that are posting information about your business that not only is false but is suspected to be completely your competitors or something.
NASIR: This is a carpet cleaning business and they think that this is a competitor that is going on this website and posting these bad reviews about them. Keep in mind, people that are listening though, this is a Virginia lawsuit. This was a public court decision.
MATT: Yeah, this was done by the Court of Appeals.
NASIR: So, to understand what that means, unless you’re in the state of Virginia, that is not going to apply to you, but it is going to be persuasive authority in the sense that it could be used to help your argument in your respective state. And, also, keep in mind, I noticed that the basis of their lawsuit was a statute that was passed in Virginia which there are other states that have a similar statute which talks about basically anonymous posting and, if there’s a tortious or illegal communication, then the burden of proof going through First Amendment rights and so forth is lessened if it’s an anonymous post online. So, even if your case is similar but if you’re not in a state that has a similar statute, it may not even work.
MATT: All right, let’s get into the first question this week, and this comes from a start-up in New York City.
“I was in a start-up competition where random teams were assembled. We didn’t win but still wanted to move forward. How do we determine who owns what?”
I’m assuming they are talking about ownership of the entity – well, I guess they don’t have an entity yet – of the business of whatever they put together.
NASIR: Well, probably not, right? They misspelled the word “forward” so I’m sure they didn’t think about that as well. I guess I shouldn’t make fun of the people that are sending in questions but that’s a typo obviously.
MATT: Let’s get into the next question here. This one’s from a marketing firm in Los Angeles. This is a good one.
“One of our clients is holding a social media contest and give away a ‘prize’ to a winner. What if they don’t actually give a prize away? Are we in trouble for that?”
NASIR: You know, when we did a contest as a firm – last spring or summer it was, I believe – it was a social media thing and it did really well. We were giving a prize away. I think it was an iPad Mini. But people were telling us, like, they were reluctant to even participate. They were like, “Well, you guys aren’t really going to give a prize away, right?” as if almost that’s the common thing to happen and I was just wondering, “Do people actually do that?” That’s really wrong and unfair.
Also, it seems counterproductive because, you know, I’m assuming they’re doing it for marketing and media reasons, right?
NASIR: Just like what we did. But, also, you get some media attention just from the prize winner also promoting your stuff, too.
NASIR: Like, for example, the person that won the prize took a picture of herself with the iPad Mini and posted it on our Facebook page and that was awesome.
MATT: Yeah, it was a little bit questionable because your wife won and she was posting it.
NASIR: That’s not true.
MATT: She was holding up a box that may or may not have had an iPad Mini in it. But, no, we did actually post the person who won the contest holding the iPad Mini which I think is the correct way to go about it.
MATT: All right. So, the next thing we have on the agenda here, this deals with a health club. I believe it’s Equinox – I hope that’s how you pronounce it – but it deals with their memberships apparently are “impossible to cancel.” I guess, in the contracts for the gym memberships, it has it in there so it’s automatically and perpetually renewing making it, like one person said, virtually impossible to back out of.
NASIR: We’ve all seen these gyms that pressure you to sign up and then you end up not using it, of course, but then, when you want to cancel, you realize you have a year-long contract and so forth. But these guys, they have this provision where everything’s automatically renewed and, in order to cancel, they have to send in a certified or registered mail to the gym. And, of course, who’s going to do that? This is an upscale gym, too, as well. So, I can imagine a lot of people just not caring, right?
MATT: Yeah. I mean, if you’re too lazy to go to the gym then you’re not going to go and get a certified letter and send it to the gym, that’s for sure. I don’t know if you watched Friends or ever watched, I guess, watched Friends since it’s been off the air forever but there was an episode where Chandler was trying to quit the gym and they had all these tactics they would use and then Ross went there to try to help him and then he ends up signing up. So, it was pretty funny.
NASIR: Welcome to Legally Sound Smart Business.
This is Nasir Pasha.
MATT: And this is Matt Staub.
NASIR: And this is our podcast where we cover business in the news with our legal twists and also answer some of your business legal questions that you, the listener, submit to our podcast at email@example.com.
I always have to slow that down for everyone. I feel like, if I say it too fast, no one’s going to get it.
MATT: You know, you always bring up the part where we introduce ourselves at the beginning and you always say it’s kind of redundant. I never even really thought about it but I was listening to an episode this morning.
NASIR: Was that the first episode you listened to?
MATT: It was, and it was literally just back to back, but I think it’s a good way to distinguish our voices so you know who is who if you’re talking. I guess that’s the benefit of it.
NASIR: That’s true. I don’t want people thinking I’m Nasir. That would confuse people.
MATT: Now, that’s a big mystery. We could do a video podcast and make it easier.
MATT: Well, let’s just into it. He’s still a very relevant topic. The NFL draft happened a couple of weeks ago. One of the big stories behind that was Johnny Manziel. So, for Nasir’s sake, he was a college football player at Texas A&M, became really popular, won the Heisman as a freshman a couple of years ago, got drafted, now he’s going to be in the NFL in your home state, actually, playing for Cleveland.
MATT: But the underlying story here with him is between his sort of presence and Texas A&M, or more accurately their stadium, I guess he and his long-time friend who’s always in the news with him had tried to trademark “the house that Johnny built” in order to have that affiliated with the university and I guess initially it’s been denied and, I don’t know, I’m sure they’re still going to try to do something with that but it brings up an interesting thing because he’s wanting to trademark this and he’s wanting it to be affiliated with the university. It’s just his name but it would be tied directly into the university so it’s a couple of interlocking pieces here but I can see why the registration was refused.
NASIR: Well, I first had to do a bunch of research to figure out who Johnny Manziel was and I’m still not sure, really. He’s won some kind of trophy but it seems as though there’s the likelihood of confusion, right? And that’s kind of interesting because, even though he’s not connected to any goods or services, he’s just a football player that they denied which is not unusual just because they say Johnny Manziel is so famous that consumers would presume a connection. I think that statement’s kind of funny because I didn’t even know who he was I guess he wasn’t that famous to people.
MATT: Well, Johnny Manziel, hopefully that’s the last we talk about him because he hasn’t even played a snap in the NFL and he’s already talked about way too much.
NASIR: We are at the mid-week point – Episode 50. That’s a lot of episodes.
MATT: Yeah, pretty crazy. It’s a semi-milestone.
NASIR: I thought 48 episodes was a lot but 50 is just… I think we should just stop. It’s too much.
MATT: Yeah, we’ll see how this one goes and, if it’s the best one, we’ll stop at 50.
NASIR: Okay. All right. That’s a lot of pressure.
MATT: Well, let’s get into the story that we have for today. The story here is the one that was in California; assembly passes this film tax credit bill which basically is trying to keep filming and production in the state or give incentive for the filming and production to stay in California. Obviously, in California here, we have Los Angeles, Hollywood. There’s lot of companies, lots of actors here; there’s no reason to let them leave. But a lot of them are leaving for these tax credits that are in different states. I know there’s a few states in the country that a lot of places film but California is just trying to keep this in in order to generate more money, help the economy. It’s always obviously struggling in California.
NASIR: They also have an additional incentive for production companies that are actually moving into California.
NASIR: But, you know, this started to get me thinking about tax credits in general and I don’t think businesses realize how many different tax credits for all these little things are there and I wanted to bring in Steve from State Tax Credit Exchange. He’s a tax credit clearing house.
Steve, welcome to the program.
STEVE: Thank you. Good to be here.
NASIR: So, obviously, there’s always going to be legislation in different states that gives different tax incentives to businesses. But, you know, you’re an expert on tax credits. Why don’t you tell us a little bit about tax credits in general and also how you’ve been dealing with it in your business as well?
STEVE So, tax credits are obviously incentives by typically the state such as the state tax credits typically by the states to foster growth in certain industries. The feds have also tax credits to foster growth in particular industries as well – some of them are for more social reasons such as your affordable housing; others are for more business development call it jobs which would be the film and entertainment tax credit – and certainly California is trying to keep the flood of folks from leaving the state of California to other states, As film production and technology has been a little easier to do on an international basis for that matter, it’s not as essential to film in the state of California. And then, other talent is now national and international as well. Some actors and actresses as well are not living necessarily in the state of California. So, that has been an issue where California has struggled to keep these folks and there’s now infrastructure being generated or – should I say – built in places all over the world. So, our company, as an exchange or clearing house, we basically take the tax credits that have been generated by these companies and we sell them or transfer them to other taxpayers – they can be individuals or businesses that have tax liability. These incentives that we only work with are ones that are transferable by law.
NASIR: Okay. So, are most tax credits transferable or just a few of them?
STEVE: Not all tax credits are transferable. There’s R&D tax credits and job credits in certain markets that are not transferable. They can only be used by the companies who are generating those credits. There are other credits – lots of other credits, actually – that are transferable and the reason why is that those companies who are generating those tax credits do not either have the liability or it’s a timing issue and they want to monetize those tax credits thereby selling them or transferring them to another taxpayer.
NASIR: Well, that’s an amazing industry in exchange that probably most people aren’t even aware of. I think a lot of businesses have probably heard of the shop tax credit. What is it? Small business health options program in the new health care law? Because that implemented this year. What are your thoughts about that? Has that been something that you’ve been working with?
STEVE: It is a tax credit that is not transferable and nothing that I am familiar with.
NASIR: Oh, okay. Well, that’s good to know. It’s not a transferable tax credit.
Steve, what’s your opinion on tax credits in general from a business perspective or as a business owner?
STEVE: From a taxpayer’s perspective, it’s a no-brainer. If you have a tax liability and you can buy a discount on your taxes, certainly, ones that are bulletproof from the standpoint of risk, it’s a no-brainer. From a business who has the opportunity to generate these tax credits, again, it’s a way to mitigate your expenses, reduce your costs of whatever industry you’re in that has these tax credits, certainly the film and entertainment business, if you come to certain states, as a matter of fact, even Canada, these incentives are offered all over the world, you can get somewhere between 20 to 40 percent of your production costs mitigated through the tax credits.
MATT: One thing I found that was pretty interesting, Anchorman 2 which is supposed to be set – at least in part – in San Diego, you know, there was a little bit of filming here but it was mostly filmed in Georgia from what I understand. Steve, do you see a lot of, I mean, is this a pretty frequent occurrence? A film is supposed to be set in one city and ended up coming to Georgia in order to film just for the tax credits?
STEVE: No question. There was actually an entire town in the south side of Atlanta that was built to be somewhat agnostic as far as the buildings and anything could be shot in that town and then they basically transposed, you know, the Eiffel Tower for that matter in it, and when you’re watching the movie, it’s as if you were watching it in Paris.
MATT: That’s cool.
STEVE: That’s the reason. Because of technology, it allows for a lot more opening to film in locations outside of the potential location it seems to be on the silver screen.
NASIR: Welcome to Episode 68 where we cover business legal news and answer some of your business legal questions that you can send in as the listener to firstname.lastname@example.org.
MATT: 68 seems like a lot. I wouldn’t have guessed that. I probably would have guessed, like, 38 maybe?
NASIR: I was going to guess, like, 67 or 69 but not 68.
MATT: Good guess. If you were to guess 69, Price is Right rules, I still would have won. You’ve got to guess under.
MATT: All right. So, we have a dispute between Yelp and Google.
NASIR: I choose Google.
MATT: Yeah. So, no one’s going to feel any sympathy for Yelp in this situation but basically what Yelp is claiming is Google is altering search results to put their Google sponsored content higher than Yelp’s stuff. So, I mean, I’m just thinking, when I Google something like – the most common thing – a restaurant, probably what’s going to pop up is the restaurant’s website, but one of the first or second things that pop up is usually their Yelp page because that’s what people go to. I mean, a Yelp page is actually going to tell you more than a restaurant website ever will. Plus, you can get the link for the website on Yelp anyway. I think you and I are probably on the same page here. I think we’re probably going to side with Google on this one.
NASIR: Yeah, just because we hate Yelp. By the way, the technical term is “SERP” which is the search engine result page rank.
MATT: Ah, gotcha, interesting.
NASIR: We’ll talk about SERPs in SEO. I don’t really care if Yelp goes down on the list, frankly.
NASIR: Yeah, let’s get into the question of the day. Hopefully we can bash Yelp some more. Even if the question’s not related, I’m going to bash some Yelp.
MATT: All right, this is an interesting question. There might be some background that’s needed on this.
“In the Belfort example, and those working in boiler rooms, they are convicted of using unfair selling tactics but what does that mean? Do salesmen not use unfair sales tactics when they psychoanalyze the client and use that to their advantage? Pharmaceutical industry located in South Florida.”
NASIR: Oh, I guess the Belfort example, that’s referring to Jordon Belfort. He’s known as the Wolf of Wall Street and, of course, boiler room – Boiler Room is one of my favorite movies – but same idea. And so, basically, it’s a question of what’s the line between misrepresentation or fraud and just mere puffering of sales tactics?
MATT: Exactly. I mean, it’s a fine line. Like, there’s a lot of gray area. You’ve seen Wolf of Wall Street, haven’t you?
NASIR: Yeah, I saw it.
NASIR: I personally didn’t like it that much but, you know, that’s me.
MATT: Well, I know, because you hate Leonardo DiCaprio, but that’s fine.
NASIR: No, actually, I like him.
MATT: So, he ultimately ended up getting in trouble, right? The true story.
NASIR: Yeah, I know, both the true story and in the movie, have you not seen it?
MATT: No, I’ve seen it.
NASIR: Oh, okay.
NASIR: I don’t want to give anything away but he was arrested but it was literally for securities fraud and money laundering and basically some of these stocks were being fronted as something that it wasn’t.
MATT: Sales people are sales people. A lot of times, you know, if they’ve been trained, they know kind of where the line is and they know not to say anything that’s factually incorrect.
MATT: All right. Well, I hope we sold people on this is the best podcast that’s out there. So, it’s the number one podcast. Notice how I didn’t say “number one ranked” podcast. So, that’s it.
NASIR: That’s true.
NASIR: Even though it is the number one ranked podcast.
MATT: Oh, no!
NASIR: You did not say that.
MATT: Oh. Now we’re in trouble!
NASIR: No, number one ranked by Staub and Pasha Incorporated – a podcast ranking service.
MATT: All right. Well, we have a pretty interesting story for today because it deals with… there’s a lot of different things going on. So, it’s a Yahoo! executive and she and Yahoo! in general are being sued by a former principal software engineer for sexual harassment and wrongful termination. Now, I mean, we’ve talked about similar things in the past but it’s typically been male superior and the lawsuits have been brought up by a female – I don’t want to say – inferior.
NASIR: Inferior… Subordinate.
MATT: A female employee. So, now we have a female executive or superior and also a female employee. So, Yahoo! is just straight up denying any of this happening and is very strong in their stance.
NASIR: Yeah, that seems unusual. These two employees, they moved to California, they moved into an apartment together, separate rooms and so forth. They weren’t a couple or anything like that but then they did have some relations at home and then that may have been brought into the workplace. But the real problem is that this person being accused was a supervisor and was her supervisor. When she complained and was terminated, then that creates a huge number of problems and, again, this fact pattern, whether it’s a female or not is the exact same fact pattern that you see over and over again across other sexual harassment lawsuits and wrongful termination. I think people need to understand that these issues, when it comes to sexual harassment and wrongful termination, they stem from having power over another and that’s the main issue and that’s the whole concept of employment law protections because, when you have an employee, they’re in your control.
MATT: When something like this happens, a company can do one of two things; they can either take some sort of action whether it be suspension – I mean, worst case scenario, termination of the person who’s being accused – or it can do what Yahoo! did and just outwardly deny it – just full denial saying it’s all bogus.
MATT: All right. Well, let’s go to the question of the day.
“Why is it that manufacturers refrain from mentioning one another in their advertisements? Example: Tide cleans better than these other brands – a bunch of white bottles with no labels. This is observed with, well, basically every niche of the commercial market with two exceptions I’ve regularly noticed – Pepsi versus Coke, and the car industry.”
NASIR: I think the main purpose of all that is to not mention your competition because you give them more brand recognition. But, with Pepsi versus Coke, Coke knows everyone knows Pepsi and Pepsi knows everyone knows Coke, but being able to differentiate and attack your competition is a little bit better.
A good famous one is AT&T and Verizon. They’re always going at each other and even the legal restrictions aren’t too bad because, for example, you could even use the competitor’s logo in your commercial just as Verizon and AT&T and Pepsi and Coke have to each other because it’s part of the fair use. There’s no confusion of who this commercial is for or any kind of association or endorsement. In fact, you can just make fun of them and it’s part of the fair use laws. So, generally, they’re legally free from doing it and with, you know, certain exceptions and so long as they’re not misrepresenting what the other company does then they should be fine.
MATT: The commercials that don’t actually mention who the competition is, I think they’re worried about some sort of lawsuits. I think their legal team just didn’t fully inform them of what they’re allowed to do in the commercials.
NASIR: You know, actually, well, one thing that is true is our podcast is better than our competition or our competitor’s podcast.
MATT: That’s true. That’s very true.
NASIR: All right. Welcome to Legally Sound Smart Business. This is Nasir Pasha.
MATT: And this is Matt Staub.
NASIR: Oh, nice.
MATT: But enough monkey business here because we have a story to talk about – about monkeys. I don’t know all the details. So, basically they’re at – I would assume – a zoo or some sort of something like that and basically a monkey somehow got a hold of a photographer’s camera and just took a ton of pictures and one of them was a pretty funny selfie of the monkey that the monkey took that I guess only recently went viral – probably because selfies have become popular this year so maybe that’s what it is.
MATT: But anyways, it went up on Wikipedia – I don’t know on what page – and the photographer said, “Hey! You’re infringing on my copyright. I have a copyright on this photo. You need to take it down,” and Wikipedia’s response was, “Well, you don’t own the image,” or, “You don’t have a copyright on it so we’re not going to take it down,” and it raises a couple of interesting questions. I guess the first one is can this monkey actually have a copyright of the photo? And we’re going to answer that that it’s no, but since that’s the case, who actually owns, I guess, who has the copyright to this photo?
NASIR: Forget about it that it was an animal that actually took the photo. If I set a camera out to take a landscape photo and have it take a picture every five seconds or ten seconds or whatever – like, a time lapse or whatever – then I would obviously own the copyright. Like, if I left a camera in a certain position where let’s say that it only goes off if an animal goes by or there’s a motion detector, right? Does that mean that the animal’s the one that actually took the picture? Well, not really because I caused that to happen. Same thing if I hand a camera to a monkey that has ability to press the buttons and take a picture; all of a sudden I lose my copyright for that?
MATT: The work must have an author. The origin has to be a human being so materials produced solely by nature, plants, or animals are not copyrightable. Think of the photo of all those workers suspended high up on that beam from the black and white photo that I’m sure everyone’s seen.
MATT: I think a camera was freefalling. Somehow, they brought a camera back that was small back in time. It was freefalling and it landed against another beam and took that photo.
NASIR: I don’t know. I thought it was a monkey.
MATT: A monkey, yeah, or that.
NASIR: That’s what I read.
MATT: “There has been a lot of chatter with my employees. Can I ban gossip in the office?”
NASIR: Good question. I hate gossiping. I think it really can bring a company down.
MATT: I mean, generally speaking, you can discipline your employees – within reason, obviously – for things they do. This person here asks if they can ban gossip. So, I guess the key thing is, if you have some sort of policy, it just can’t be overly broad, I suppose. Is that how you would put it?
NASIR: The National Labor Board has actually ruled on this issue and what they’re trying to prevent in a rule saying you can’t gossip is very simple or gossip is not tolerated. The problem with that is that it could be infringing upon protected activity. For example, when it comes to unionizing or when it comes to complaining about let’s say you’re gossiping about the fact that the office has or the place of employment is unsafe, right? Or there’s some labor law violation and so forth. These are all protected activities and so I think making it too broad becomes a problem.
MATT: I think there’s some sort of show, I believe, that was Gossip.
NASIR: Gossip Girl?
MATT: That’s a show, right?
NASIR: Yeah, that was your favorite show. You know, you don’t have to play coy with everyone. No one will mind.
MATT: All right. Well, actually, we’ve got a good story that will help people wake up, I guess, indirectly – a lawsuit involving Red Bull – more accurately, a false advertising lawsuit. There’s a possible settlement – that’s not as important – but, basically, it boiled down to this. It was a false advertising claim. I think everyone knows what Red Bull is; it’s an energy drink.
NASIR: It gives you wings.
MATT: Yeah, it gives you wings, which does sound like false advertising right there. But the actual false advertising claim was it provided more benefits to consumers than a cup of coffee or a caffeine pill.
NASIR: That’s kind of a statement of fact, right? You have to kind of back that up that, if you’re saying that it has more benefits, how and what’s your basis for that? And we’ve all seen marketing kind of give a lot of leeway to these kinds of statements but, whenever you make a comparison, you have to be very careful. It just seems like anything that they would say, besides giving you wings, would be considered false advertising.
MATT: “My employees are receiving small tips on credit card receipts and we get hit with a processing fee each time. Can we deduct the fee from our employees’ tips?” and this comes from someone in Santa Barbara.
NASIR: California. You know, actually, in some states, this is actually allowed. There was just a story – it seems like it was this week or even before that – and I think it was a Minnesota company that was actually doing this because they were trying to get around the minimum wage increase and so forth and I don’t know the details of that case but, in Minnesota, apparently it’s allowed, but California, definitely not.
MATT: Yeah, I mean, that’s the answer and, since this person’s in California, that’s pretty clear cut. It’s in the Labor Code that you can’t do this as an employer. I mean, why would you anyways?
NASIR: Well, I understand the sentiment because those credit card fees do add up. For those of you that don’t necessarily sell products or you accept credit cards, merchant fees are very simple. They charge; sometimes they have a monthly fee, they almost always have a per transaction fee, and then they have a percentage fee of the actual ticket. And so, those three items are always negotiable and these credit card processors play with all those rates. But, generally, I think restaurants, because of the volume that they’re doing, the number of transactions, they usually try to keep the per transaction fee very low and the percentage maybe a little bit higher and I think that range is three to five percent a lot of the time, and three to five percent for each sale, that can add up but I don’t know if you want to take that away from your… or I guess just pay them less overall. It just seems strange to take that off the top of the waitresses or waiters.
MATT: I don’t know how the intros get worse as the week progresses. I know I always talk about this but you’re so good at everything else. The intros? Not as good.
I want to get into the story here, but first I wanted to, it’s dealing with Mickey Mouse and a DJ, but I just wanted to know – I’m guessing you don’t know who this is but I wanted to see how you would pronounce his name.
NASIR: Oh. Oh, yeah, of course, it’s Deadmau-five
MATT: Oh, okay. I think that’s what a lot of people think. It’s “Deadmaus” is the actual pronunciation.
NASIR: Yeah, that’s what I said. Yeah, Deadmaus; I was saying how, like, most people would say, like, something stupid like Deadmau-five. But, yeah, Deadmaus.
MATT: For those of you who don’t know or maybe those of you who have heard of him, he’s very iconic. The thing he wears on his head when he does all of his DJ-ing. I’d say one of the most popular DJs right now in the last few years. But how to describe it is he wears this thing on his head that essentially makes him look like Mickey Mouse. It’s an electric techno version of Mickey Mouse but that’s where this whole lawsuit’s come into play. There’s a dispute over the infringement of Mickey Mouse’s head, more or less. So, we talk about these infringement issues a lot and they do look similar but there’s a few different things about this case and other ones – one of which being that Deadmau5 has had trademarks to this logo – there’s your logo – in 30 different countries and has been using the image for over a decade. So, that definitely works in his favor, I would say. I assume that Disney had some sort of trademark for the Mickey Mouse logo, I would think, they’d have to have it.
NASIR: I would assume so.
MATT: They even have an act that’s, well, better known as the Mickey Mouse Protection Act.
NASIR: Just as a side note, a lot of issues when you want to go international with your mark or your business, some of the time, you’ll have these guys in China that will actually register your mark and basically it’s like what they call a trademark troll instead of a patent troll – the trademark troll in which they basically hold the trademark ransom. You know, when you’re dealing international countries and so forth, it’s a little bit more difficult to enforce. But, here in this case, I think this DJ has also made his own, too, as well to have enough of an independent kind of following to be freely differentiating between Mickey Mouse.
MATT: I agree with you. Like I said earlier, he’s been doing this for a decade so…
NASIR: Yeah, why now?
MATT: Why didn’t they take any action prior to now?
NASIR: Disney’s classically though, they’ve been very aggressive in enforcing any kind of copyright infringement and trademark infringement, et cetera. I think only until recently, even in this article, they comment on how they’ve taken a little bit of a step back with their movie Frozen because there’s been so many parodies and tributes to Frozen on YouTube and alike that it’s actually helped the actual movie get more viewers and so forth. And so, they’ve kind of “let it go” because it’s in their favor which I haven’t seen the movie either. Have you? I heard it’s good.
MATT: Have I seen Frozen? No, I have not.
MATT: “What should I include in a general release?”
NASIR: Well, what’s a general release? A general release is basically usually, when you have a dispute that comes up with anyone for that matter and you come to a settlement then you want to make sure that, “Okay, I’m paying you $100 in settlement so that neither of us have any more claims with other. We can go our separate ways and we don’t have to deal with each other anymore,” right? And that’s the concept with the general release. But what should I include in a general release? Frankly, if it’s of any consequence, you should not be drafting your own general releases. It’s not a simple document – not as simple as people think it is, especially like in different states, there are different requirements, depending upon what exactly you want to be released. For example, classically, in California, if you want to release any and all claims, including unknown claims, you have to specifically waive certain rights of the California law – I think specifically it’s Section 1542 of the California Civil Code – because, without that, California only allows you to release claims that are known or suspected to exist – not one that was unknown.
NASIR: Usually, you know, a general release usually tries to include those kind of things.
MATT: I guess there’s common sense things that you would think about like who’s releasing who or who’s providing the release to who and these are all, like I said, basic level stuff but, you know, what claims are being released.
NASIR: You’re right. These are questions that need to be answered. Who’s being released? Is it the entity or the individual or both? You know, a lot of times, when that can be kind of mixed and mashed, you might want to include the individuals in there. What if there’s some kind of dispute? Are you going to go under arbitration or attorney’s fees? So, basic stuff that are in any contract and he mentioned what claims. Sometimes, you would just want to release one specific claim dealing with one issue but not touching the others because, again, they may be unknown so you want to kind of reserve your right to follow up with that. And then, also, a lot of times, these settlement agreements, you want to make sure, especially from a business perspective, you may want to make sure that they’re confidential because you don’t want the other person saying, “Hey! This guy’s settled with me and because he admitted he was wrong or whatever and their business is bad and so forth.” And so, adding in stuff like non-disparagement clauses and things like that are also something to consider.
NASIR: Happy New Year!
That was a fail.