HIRING: IP & ENTERTAINMENT ATTORNEY

Our Santa Barbara firm is growing, and we are looking to immediately hire a full-time, career oriented attorney with 3 – 14 years’ experience to join the team. We have an eclectic practice, the foci of which are entertainment (filmed entertainment, music, publishing, and licensing), non-patent intellectual property (trademarks, copyrights, and trade secrets), Internet, business, and litigation in state and federal courts. We work with entrepreneurs, start-ups, and maturing companies, serving as outside general counsel, and represent a wide variety of businesses, including multi-media companies, music publishing companies, film and music producers, artists, photographers, songwriters, and others. We are looking for someone wanting a high quality, high energy, low key environment, who values relationships, innovation, and technology; is resourceful; and operates (or is willing to operate) on the principle that “THERE IS NO BOX.” Law review, great writing skills, and/or equivalent problem-solving and collaboration skills are highly valued here. We are willing and able to mentor the right person in any areas that may be needed. A book of business (small, medium, or large) is welcomed, although not necessary. This position is open now. Please let us know if you are the right person or know someone who is.  You may send resumes and writing samples to miblawgrp@gmail.com.  Please view our website at mbergerlaw.com and our LinkedIn profile at https://www.linkedin.com/in/matthewberger/ for more information about who we are and what we do.

Idea Submission and Avatar: James Cameron and Lightstorm Prevail

There are several lessons to be learned from this idea submission and breach of contract case, where the plaintiff contends that his idea was misappropriated by James Cameron for the film Avatar, among which are the proof that one must have demonstrated in order to claim a similarity between the alleged infringing work and one’s own idea, and the questions of timing. An interesting analysis can be found here: http://www.loeb.com/publications-ipentertainmentcaselawupdates-20160325-rydervlightstormentertainmentincetal.

The unpublished opinion of the court can be found here: https://scholar.google.com/scholar_case?case=15675251615603331785&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Doing Business in California: The Franchise Tax Board Definition

Many people ask about incorporating or forming an LLC in a state other than California. California law changed a few years back, and made it more clear what it means to be “DOING BUSINESS IN CALIFORNIA.” The California Franchise Tax Board (FTB) has provided guidance on the subject, which can be found at . The following is a brief summary:

“For taxable years beginning on or after 1/1/2011, a taxpayer is doing business in California if it actively engages in any transaction for the purpose of financial or pecuniary gain or profit in California or if any of the following conditions are satisfied:”
 The taxpayer is organized or commercially domiciled in California.
 Sales of the taxpayer in California, whether by the taxpayer or its agents or independent contractors, exceed an indexed amount, which in 2013 was $518,162, or 25 percent of the taxpayer’s total sales.
 Real and tangible personal property of the taxpayer in California exceed an indexed amount, which in 2013 was the lesser of $51,816 or 25 percent of the taxpayer’s total real and tangible personal property.
 The amount paid in California by the taxpayer for compensation exceeds an indexed amount, which in 2013 was the lesser of $51,816 or 25 percent of the total compensation paid by the taxpayer.

All of the above items include the taxpayer’s pro rata or distributive share of pass-through entities (partnerships, an LLC treated as a partnership, or an “S” corporation). Indexed amounts for 2014 are not yet available from the FTB.

The law affects out-of-state corporations, LLCs, and pass-through entities (partnerships, S corporations, LLCs treated as partnership) and their partners/shareholders/members that have property, payroll, or sales in this state. An out-of-state taxpayer that is considered to be doing business in California will need to file the appropriate tax return and pay the appropriate tax and fees.

Keep in mind that there are two basic tests. An out-of-state taxpayer that has less than the threshold amounts of property, payroll, and sales in California may still be considered doing business in this state if the taxpayer “actively engages in any transaction for the purpose of financial or pecuniary gain or profit in California.”

The FTB guidance contains several examples, some of which include the application of exemptions to the rules. This is an important change in the law, of which all businesses formed or operating in other states should be aware.

Please let us know if we can be of assistance in this or any other business-related legal matters. Matthew I. Berger Law Group, A Professional Corporation: (805) 456-1200.

Some Legal Issues About Websites

Most every business now has a website, among the purposes of which are to attract customers, disseminate information to attract customers and inform the population, provide the means for customers to purchase products and/or services, and to become better known as a credible expert in a chosen field, ultimately to attract customers. A brief survey of websites reveals some similarities, broken down into two categories: those with Terms of Use and Privacy Policies, and those without.

It may seem like a small thing, but the consequences of not having Terms of Use and Privacy Policies on the webpages may have serious repercussions. This is especially so when the website provides an opportunity for its visitors to leave Personal Identifiable Information (PII), such as an e-mail address, when subscribing to a blog; or name, address, telephone number, and credit card information when purchasing a product through eCommerce. California and Federal law each impose various requirements, and additional requirements are imposed when there is a likelihood that children 13 and under may visit the site. There are other areas that require compliance, such as rules promulgated by the Federal Trade Commission (FTC) regarding endorsements and testimonials, as well as misleading and deceptive advertising.

The Womens’ Economic Ventures (WEV) maintains an online library of webinars and other materials, including a webinar that the Matthew I. Berger Law Group presented on the Legalities of Websites. The following are the links that will begin the download of the files for the audio portion: http://wevonline.org/index.php/about-wev/learning-library/doc_download/352-legalities-of-web-sites, and the PDF file containing the slides: http://wevonline.org/index.php/about-wev/learning-library/doc_download/351-legalities-of-web-sites-pdf. If you would like to merely browse the library, click here: http://wevonline.org/index.php/about-wev/learning-library/cat_view/48-main-categories/49-thrive-in-five/37-webinars

Please feel free to contact us if you have any questions about the many areas of compliance for all aspects of eCommerce, the Internet, and websites. Our phone number is (805) 456-1200 You can find us on the web at www.mbergerlaw.com.