Articles and FAQs
This section contains articles drafted by Saper Law Attorneys, links to sites of interest, and answers to frequently asked questions. Feel free to browse through the recent postings below, or use the topics list on the left to search for articles in a specific area of law. Please note that none of this material constitutes legal advice. You should confer with an attorney to discuss legal matters specific to your situation. Check back for updates or use our online form to submit a question.
Register for November Seminar at Saper Law: The Skill and Art of Negotiation
By Saper Law | November 8, 2010
REGISTER for the November Seminar at Saper Law:
The Skill and Art of NegotiationAs transactional lawyers and litigators, Saper Law attorneys regularly negotiate on behalf of their clients. However, most business negotiations take place before lawyers are involved. November’s Seminar at Saper Law will teach you how to successfully negotiate your business deals.
During the hour long seminar, Daliah Saper, Principal Attorney at Saper Law, will address the following commonly asked questions:
What are the common barriers to a successful negotiation?
Which bargaining style is most effective?
How do you prepare for a successful negotiation?
What questions do you need to ask during the negotiation?
What clues does your counterpart’s body language give away?
RSVP today to get the answer to these, and other questions, on November 22nd.Details:
Monday, November 22, 2010
Time: 11:30 am – 1:00 pm
Saper Law Offices, LLC
505 N Lasalle, Suite 350
Chicago, IL 60654Cost $15 with online registration: http://sapernegotiationseminar.eventbrite.com/
$25 at the doorLunch will be provided
Topics: Seminars at Saper Law, Small Business |
Register Now for October’s Seminar at Saper Law: Non-compete, Shamcompete—those contract terms aren’t enforceable anyway….right?
By Saper Law | October 8, 2010
Register Now for October’s Seminar at Saper Law: Non-compete, Shmamcompete—those contract terms aren’t enforceable anyway….right?
Saper Law attorneys regularly draft non-compete, non solicitation, and non disclosure agreements. At the same time, they are in court litigating the enforceability and applicability of these agreements. October’s Seminar at Saper Law focuses on all things “non compete.”
During the hour long seminar, Daliah Saper, Principal Attorney at Saper Law, will address the following commonly asked questions:
- What do the provisions of a non-compete really mean?
- How is a non-compete different from a non solicitation clause and from an NDA (Non-disclosure or confidentiality agreement?)
- When do I need to present a non-compete agreement to my employees or vendors?
- As an employee, how does a non-compete limit my activities outside of work?
- Are covenants not to compete really enforceable?
RSVP today to get the answer to these, and other questions, on October 21st.
Details:Thursday, October 21, 2010
Saper Law Offices, LLC
505 N Lasalle, Suite 350
Chicago, IL 60654
Time: 11:30 am – 1:00 pm
Cost $15 with online registration: http://noncompeteseminar.eventbrite.com
$25 at the door
Lunch will be provided
Topics: Seminars at Saper Law, Small Business, Tech Industry, Trade Secrets |
Saper Law’s Music Law 101 Seminar is now available for viewing!
By Saper Law | June 23, 2010
Video from Saper Law’s Music Law 101 Seminar is now available at www.saperlaw.com and http://rvibe-live.com/101.html&vid=18:
Topics: Copyrights, Seminars at Saper Law |
Saper Law Attorneys draft Sweepstakes and Contest FAQ
By Saper Law | June 5, 2010
Saper law’s Advertising and Media Law Practice has put together the following Sweepstakes and Contests FAQ to assist businesses launching a promotional campaign. Both state and federal laws govern the use of sweepstakes and contests for advertising purposes.
Sweepstakes and Contest FAQ
While a contest or sweepstakes can be a great way to get word out about a business, businesses using these promotions must comply with both federal and state laws regulating them. The following are some questions a business might have when conducting a contest or sweepstakes promotion.
What is the difference between a sweepstakes, lottery, and a contest?
Before a company decides if its promotion is a sweepstakes or contest, it must make sure the promotion is not an illegal lottery. A lottery consists of three elements: (1) a prize, (2) consideration (payment), and (3) chance. In other words, a participant pays for the chance to win a prize, like purchasing a ticket in the hopes of winning millions of dollars in a legal, state-run lottery. A company must eliminate one of those three elements to be sure the promotion is not a lottery.
A contest, on the other hand, awards prizes based on skill, including art contests, cook-offs, or trivia contests. Because the element of chance is eliminated, companies can require consideration for entry into the contest.
Talk to your lawyer to determine whether your advertising campaign constitutes a sweepstakes, lottery, or a contest.
Are there state laws governing sweepstakes?
Yes. Each state has a different set of laws governing promotions, but most notably, Florida, New York, and Rhode Island require sweepstakes offering prizes over a certain value to be registered.
Companies offering a sweepstakes that awards prizes totaling more than $5,000 must register and bond the sweepstakes in Florida and New York. In Florida, the sweepstakes must be registered seven (7) days before the sweepstakes begins; in New York it must be registered thirty (30) days in advance. Both states require the company to provide a list of winners to the state and to anyone who requests it.
Rhode Island requires retail outlets offering a sweepstakes with prizes valuing more than $500 to register the promotion with the state. The state does not require companies to bond the sweepstakes.
Are there state laws governing contests?
Yes, contests are also subject to specific state laws. For example, for contests that require a purchase to enter, Arizona requires the company to register the contest with the attorney general’s office, including a sworn statement that no additional fee was added to the purchase price in connection with the contest. This is only a sample of the unique requirements of each state’s laws.
What federal laws apply to contests and sweepstakes?
A number of federal laws apply to promotions. Determining which laws apply is largely governed by the medium through which the promotion is conducted.
Promotions conducted by mail are subject to the Deceptive Mail Prevention and Enforcement Act. The act requires promotions mailings to include all terms and conditions, the address of the company conducting the promotion, and prize information such as odds of winning, estimated value, and schedule of payments. For sweepstakes, the company must specify that no purchase is necessary to enter the sweepstakes.
E-mail promotions are subject to the CAN-SPAM Act of 2003. The act requires the sender of e-mails to clearly identify the e-mail as an advertisement, to provide the opportunity for the recipient to opt out of receiving e-mails from the sender, and to provide the sender’s physical postal address.
Promotions by phone must adhere to the Telemarketing Sales Rule. The rule requires the caller to inform the person called the odds of winning a prize, that no purchase is required, that a purchase will not increase the chances of winning, and information on, or how to obtain, the no-purchase/no-payment form of entry.
Additionally, promotions on the internet must take into account the Children’s Online Privacy Protection Act (COPPA), which requires websites who direct their services at children and collect personal information from children to provide notice of what personal information is collected, how it is used, and the website’s disclosure practices. The act also requires websites to obtain “verifiable parental consent” to collect the information.
What are the rules for conducting a promotion through a social networking site?
To conduct a promotion through a social networking site, a company must also comply with the particular site’s terms. Facebook, Twitter, and YouTube all outline guidelines for conducting promotions through their websites. Facebook’s promotions guidelines can be found at http://www.facebook.com/terms.php#!/promotions_guidelines.php, Twitter’s at http://help.twitter.com/entries/68877-guidelines-for-contests-on-twitter, and YouTube’s terms at http://www.youtube.com/t/terms.
What should be included in the promotion’s rules?
The basic guidelines for what should be contained in sweepstakes rules include: a “no purchase necessary” statement, entry procedures, any limits on the number of entries per person, the end date of the sweepstakes and any other deadlines, prizes and their estimated value, the method of selecting winners, geographic scope, eligibility requirements, date winners will be selected, date winners will be notified and the method by which they will be notified, and the identity of the company conducting the promotion.
In addition to those suggestions for sweepstakes, for contest rules, a company should include: proof of purchase requirement if permitted, judging criteria, identity of the judges, statement that entries must be original and will belong to the promotion-conducting company and will not be returned, and the method of tie-breaking, which must be skill-based.
Where can I find more information?
The U.S. Small Business Administration provides a guide to using contests and sweepstakes, with links to more information on complying with federal regulations at: http://community2.business.gov/t5/Business-Law-Advisor/How-to-Use-Contests-Sweepstakes-and-Giveaways-as-Marketing-Tools/ba-p/10881;jsessionid=348BC6703CDA2331AC0103885E034A3F.
Or feel free to contact Saper Law if you have further questions. Our office number is 312.527.4100.
A sweepstakes is a game of chance: the winner is chosen at random. Because a sweepstakes includes chance and a prize (or else it would be unlikely to successfully draw the attention of potential participants), a company cannot require consideration to ensure the promotion is not a lottery. In other words, the company cannot require payment or a product purchase to enter the sweepstakes. If the company wants to require consideration (for example, the purchase of a box of cereal to obtain a game piece inside or completion of a lengthy survey), it must offer a free Alternative Method of Entry (AMOE). The AMOE must give entrants the same odds of winning as those who entered via the consideration method.
Topics: Advertising Law, Internet Law, Small Business |
Daliah Saper invited to speak about alternative content licensing to members of Pumping Station: One
By Saper Law | April 9, 2010
On April 27th, Daliah Saper will give a lecture on alternative content licensing to members of Pumping Staion: One, answering questions about open source software, creative commons, and the differences between “copyleft” v “copyright” agreements. Her discussion will include an overview of basic copyright law as well as recent copyright cases involving alternative licensing disputes.
Pumping Station: One is a 50+ member organization of technology, science, and art makers and enthusiasts.
The event will be held at 3354 W Elston Ave, and is a part of Pumping Station’s ongoing FRED (Free, Really Entertaining, Discourse) series of talks.
Topics: Seminars at Saper Law |
Video from Saper Law’s Sales Rep Agreements Seminar Now Available for Viewing
By Saper Law | March 15, 2010
January’s seminar at Saper Law focused on the topic of Sales Representative Agreements. Daliah Saper, Principal Attorney at Saper Law, lead the presentation using case studies and sample contracts. Her discussion addressed payment and commission structures, non-compete and confidentiality agreements, territorial and geographical boundaries, intellectual property (ie trademarks, copyrights, patents) ownership, as well as the Illinois Sales Representative Act. To request a free copy of the powerpoint, please contact Saper Law.
Topics: Seminars at Saper Law, Small Business, Tech Industry, Trade Secrets, Trademarks |
Saper Law attorneys compare American and British Defamation suits
By Saper Law | February 24, 2010
Brad Pitt and Angelina Jolie’s recent defamation lawsuit against a British tabloid caused a lot of our clients to ask: Why did Pitt-Jolie not sue for defamation in America? The short answer is that British courts currently provide a far more plaintiff-friendly forum for claims of defamation, or libel in its written form, than courts in the U.S. Here is a brief overview of UK vs USA defamation laws:
-What is the standard used in U.S. defamation claims?
The U.S. Supreme Court has recognized that a balance must be found between an individual’s right to protect his reputation from defamatory statements and the public’s right to freedom of speech. To hold a defendant liable for the publication of any false statement of fact would have a severe chilling effect on the reporting of news issues which are important to the public interest. Accordingly, when an allegedly defamatory statement is made about a member of public office or a public figure, such as a celebrity, it’s not enough to prove the falsity of the statement in dispute. U.S. courts require such public plaintiffs to show both falsity and actual malice. This actual malice standard requires the plaintiff to show by clear and convincing evidence that the defendant knew the material was false, or published the material with reckless disregard for the truth.
-What is the standard used in U.K. defamation claims?
British courts apply a far less stringent standard than U.S. courts for recovery in defamation claims. Under British law, the burden of proof rests with the defendant/publisher to prove the truth of the statements in dispute. The plaintiff only has to show that the statement harms his reputation, without having to show that any damage has actually been suffered. Defamatory statements are thus presumed to be false, unless the defendant can prove their truth.
-Why do plaintiffs prefer U.K. courts to bring defamation claims?
The U.K. defamation standard is favorable to plaintiffs for several reasons. The first is this presumption of innocence in favor of the plaintiff, which is almost the reverse of the approach taken by U.S. courts. Since newspapers and other publishers are often unable to clearly prove the truth of all the information they receive, or unwilling to reveal all source or informants, it’s very difficult for defendants to overcome this presumption. While more restrictive guidelines have been recent years, damage awards for British defamation claims are virtually unlimited and often result in very large damage awards, placing very strong financial pressures on the news media to limit free speech.
The jurisdictional requirements to enter U.K. courts are also very lenient, finding sufficient “publication” within England when a few subscribers or internet viewers may have been the only ones to read the statement. English courts may then hear and decide a case regardless of the claimant or defendant’s nationality, so long as the claimant can establish they have some reputation within the U.K. Therefore a U.S. defendant runs the risk that any English language publication may result in a British defamation judgment, which can then be enforced in the U.S. These factors result in a very plaintiff-friendly atmosphere, leading to the so-called “libel tourism” trend of U.S. celebrities seeking recovery in U.K. courts.
-Is freedom of expression not recognized in the U.K.?
While the First Amendment’s broad freedom of expression may not be recognized by U.K. courts, recent decisions illustrate an increasing deference for journalistic privilege. The public interest defense was recently expanded by Britain’s top panel of judges when they found that journalists should not be at risk for libel damages when they act responsibly and in the public interest. Following this decision, the burden should shift back to the plaintiff to show the news organization did not act fairly and responsibly in publishing information of public importance, even if the information contained relevant, yet defamatory allegations against prominent individuals. However, this defense seems to be limited to “serious journalism that engages the genuine public interest,” so it’s unlikely that celebrity gossip will be afforded this elevated level of protection.
Topics: Defamation |
The American Bar Association publishes Daliah Saper’s article: Designer Jewelry vs Inspired by Jewelry
By Saper Law | February 18, 2010
Daliah Saper’s article titled: “Designer” Jewelry vs. “Inspired-by” Jewelry: Intellectual Property Infringement and Unfair Competition Considerations was recently republished in the ABA’s Winter 2010 issue of the Intellectual Property Law Committee Newsletter.
The article analyzes copyright, trademark, and unfair competition law as applied to “inspired-by” jewelry designs and provides practical tips to avoid legal problems in these areas.
To read the text of the article as it was originally printed in the Journal of the Dupage County Bar Association click here.
Topics: Copyrights, Fashion Industry, Press, Trademarks |
New Saper Law Article: Defamation in Political Campaigns
By Saper Law | February 9, 2010
Defamation in Political Campaigns
With the recent conclusion of the Illinois primaries and statewide elections around the corner, media channels and airwaves have been a breeding ground for assaultive comments and statements between candidates. Television viewers and radio listeners have been bombarded with an onslaught of negative attack campaign ads and political statements that barrage one candidate while heralding the next as a savior. Many people are wondering how politicians and their supporters are able to publish these ads; certainly some of the ads cannot represent the whole truth. But the question then becomes when do such statements rise to the level of actionable defamation?
What is defamation?
To put the scenario in context, it is helpful to have a basic understand of what the concept of defamation is. Defamation is the communication of a false claim or statement of fact about another person that harms that person’s reputation. The statement does not need to be made to a large group of people; you can be liable even if you make the statement to just one other person (other than the person that the statement is about). There are two types of defamation. The first is libel or written defamation, including things written on Internet websites, blogs and message boards. The second is slander or spoken defamation.
What is a “false statement of fact”?
A false statement of fact is a false statement that can be proven true or false – such as “John stole my computer from my house,” or “Mary had an affair with the boss to get her promotion” – and which a reasonable person, in the context provided, would understand as being asserted as a true and verifiable statement. Obviously, if a statement is true, it cannot be defamatory.
What about statements of personal opinion?
Opinions, even if they reflect negatively on someone, are protected by the First Amendment and are not defamatory. However, just calling a false statement of fact an opinion is not enough to gain First Amendment protection. For instance, if you say, “Based on the evidence, in my opinion, it’s clear that John stole my computer from my house,” then a court might determine that, because you were backing up your statement with evidence, that you were actually making a statement of fact. If that statement is false and hurts John’s reputation, then you could still be liable for defamation.
How is this affected by the context of a political campaign?
It is important to keep in mind that claims for defamation are usually balanced against a person’s First Amendment protection on free speech. Importantly, the First Amendment was enacted during a time where government censorship on debate and criticism of the political process were a large concern. Therefore, the First Amendment’s principal guarantee of free speech is perhaps strongest when dealing with public debate on political issues. Thus, in the context of political campaigns, public officials are often required to meet a higher standard of proof than ordinary citizens. Most courts require public officials to prove to that the defamatory statement was made with the person’s actual knowledge of its falsehood or with reckless disregard of whether it was false or not.
When does political “spinning” of statements during an election rise to the level of actionable defamation?
Most courts take the view that when a person runs for public office, he puts his character in issue so far as it relates to his fitness and qualifications for office. Accordingly, the politician’s prior conduct and actions are often fair game for comment. But campaign ads are famous for spinning the truth and such “spinning” of the facts typically walks a fine line to being false.
For example, in the recent Massachusetts race to fill the seat of the late Senator Edward Kennedy, the Massachusetts Democratic Party sent a mailing letter out in opposition to the then Republic Candidate, Scott Brown. The ad stated “1,736 women were raped in Massachusetts in 2008. Scott Brown wants hospitals to turn them all away.” Did Scott Brown ever tell hospitals to turn raped women away? Probably not, but a reader of the four-page mailer might have taken the statement as a fact. In actuality, the ad was referring to an amendment that now U.S. Senator Scott Brown voted in favor of when he was in the Massachusetts Senate. The failed amendment would have allowed highly religious workers at hospitals to avoid providing contraception to rape victims. Is the statement defamatory?
The first consideration is whether the statement is objectively verifiable as false. This statement clearly walks a fine line. On one hand, Sen. Brown did vote in favor of a bill that may allow hospital workers to refuse to provide contraception to rape victims. However, did this bill affect “all” of the 1,736 women as claimed by the ad? The answer is no. To further make the situation difficult, the ad’s language “Brown wants” may be seen as referring to Sen. Brown’s state of mind. Recall that the public official is required to prove knowledge or reckless disregard for the truthfulness of the statement. Therefore, even if the ad is viewed as a false statement a fact, the politician would still have to overcome these hurdles at trial.
Ok, so a statement is a “false statement of fact,” what other legal challenges does a public official face?
In addition to the heighted knowledge requirement for statements made against public officials, the politician is hard pressed to fit political statements under the basic defamation framework. Statements made during political campaign receive the best chance of falling into one or more of the five categories of statements considered defamatory per se. Defamatory per se statements are those from which it is clear from the statement itself that it is defamatory. The per se categories most likely to encompass political attack ads are the categories for words that imply an inability to perform duties of office or employment, or statements implying a lack of ability in the person’s trade, profession or business. However, even these categories present unique challenges to a politician claiming that he has been defamed by a political statement. Political defamation cases often require courts to determine whether a political campaign can be considered the politician’s “profession” or “business.” Court positions can vary widely on this topic from state to state and it is important to consult an attorney for state specific advice.
If political defamation lawsuits are so hard to prove, why bring them?
It is important to keep in mind that there is no typical defamation case. The statements involved and the ability to prove their veracity will necessarily vary. In some cases, conduct may be so outrageous, that it may be relatively easier to recover damages. On the other hand, there may be a strategic element involved to a political defamation case. Defamation suits can be used to scare various media sources from originally publishing ads or may prevent further dissemination of attack ads. Defamation law suits may even be used as a way to publicly challenge the offensive allegations in a campaign ad. At the end of the day, when the public official’s image is on the line, filing suit may be a strategic victory.
If you have further questions about defamation law, as it applies to political campaigns or public figures, feel free to contact our offices: 312.527.4100.
Topics: Defamation |
Register Now for February’s Seminar at Saper Law: Negotiating a License Agreement
By Saper Law | February 3, 2010
Does your company license or want to license trademarks, copyrights, patents or other Intellectual Property (IP) assets?
Are you unsure of the important legal concepts and monetary risks associated with your licensing activities?
Would you like to have some fun and participate in an exercise whereby you can learn how to effectively negotiate a license agreement?
February’s seminar at Saper Law focuses on the topic of Negotiating A License Agreement. Daliah Saper, Principal Attorney at Saper Law, and David Harkavy, Executive Consultant at Robinwood Consulting LLC, will lead the presentation. Daliah’s discussion will address the Legal Dos and Don’ts associated with IP licensing. David’s discussion will address the valuation methodologies used by licensors and licensees when negotiating an IP license.
The group of attendees will then divide into teams for a trademark licensing exercise. Some teams will play the role of a trademark licensor, while other teams will play the role of trademark licensee. Given a set of facts and circumstances, teams will negotiate certain terms of a trademark license agreement and then present their results.
Details:
Thursday, February 18, 2010
Saper Law Offices, LLC
500 N. Dearborn, Suite 1200
Chicago, IL 60654
Time: 11:30 am – 1:30 pm
Cost $15 with online registration: http://licensingseminar.eventbrite.com
$25 at the door
Lunch will be provided
Topics: Seminars at Saper Law |
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