The High-touch Legal Services® Blog…for Startups!

© 2009-2015 Dana H. Shultz, Attorney at Law

FTC Says Gag Clauses Violate Federal Law

Seal of the Federal Trade Commission, which filed a Complaint about gag clausesLast year, I wrote about a California law that prohibits non-disparagement clauses in consumer contracts. (See Consumer Non-disparagement Clauses Nixed in California.) Recently, the Federal Trade Commission took the position that such “gag clauses violate federal law, as well.

Roca Labs’ Obesity Treatment

Roca Labs claims that it has an alternative to bariatric surgery as a treatment for obesity. Roca says that its “proprietary regimen decreases hunger motivation, decreases urge to eat, and reduces gastric capacity by 45% to 65%.” (more…)

Consider Fair Use Before Sending DMCA Takedown Notice

Logo for YouTube, which was involved in a case illustrating why one must consider fair use before sending a DMCA takedown noticeThis post is based on a recent federal appellate case, Lenz v. Universal Music. That case held that one must consider fair use as a possible defense for an online service provider before sending a takedown notice under the Digital Millennium Copyright Act (DMCA).

DMCA Background

I provided an overview of the DMCA in Terms of Use and the Digital Millennium Copyright Act (DMCA). Quoting a portion of that post: (more…)

Google Scholar Offers Case Research for the Masses

Logo for Quora, where Dana Shultz answered a question about Google ScholarThis post about Google Scholar is a bit off-topic, discussing free online legal research, which is not necessarily a startup issue. However, this information is based on my answer to a Quora question that I am pleased to share here. See Where does Google Scholar get its case law (full-text court opinions) from?

I was intrigued by this question, having wondered, myself, how Google Scholar obtained full-text case law (court opinions). (more…)

“Work Made for Hire” Can Convert a Contractor to an Employee

California Labor Code, whcih can convert a contractor to an employeeIn California, a “work made for hire” (WMFH) provision in a contract can convert a contractor to an employee. This post describes the statutory basis for this little-known area of the  law.

Before providing details, I will note that the (likely unwanted) ability to convert a contractor to an employee will arise only under narrowly-defined circumstances.

  • The independent contractor must be an individual rather than a legal entity (a corporation or limited liability company).
  • The relevant contract must expressly specify WMFH treatment for the contractor’s work product.
  • The contractual relationship must be governed by California law. (I don’t know whether any other states have similar laws.)


Personal Cell Phone Use for Work Must be Reimbursed

Photo of the building housing the court that decided a case about reimbursing personal cell phone use by employees

California Court of Appeal for the Second District (Los Angeles)

This post discusses a 2014 case (Cochran v. Schwan’s Home Service, Inc.) which held that California employers must reimburse employees who use a personal cell phone for work.

Plaintiff Colin Cochran, as class representative, brought a class action lawsuit against Schwan’s Home Service (“Home Service”) on behalf of 1,500 service managers employed by Home Service. The suit sought, among other things, reimbursement of the managers’ work-related personal cell phone expenses. (more…)

“Happy Birthday” May Be in the Public Domain, After All

Photo of lit candles on a cake that spell "Happy Birthday"You probably have sung Happy Birthday [to You]” countless times. This post is about a company that has been collecting royalties from that song and the possibility that those royalties soon may stop.

In 1893, sisters Mildred Jane Hill and Patty Smith Hill published a collection of children’s songs. One of the songs – with the tune that we now know for “Happy Birthday to You” – was “Good Morning to All”.

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

While no one knows for sure who wrote the “Happy Birthday” lyrics, their first known publication was in 1912. (more…)

FTC Endorsement Guides FAQ Updated

Seal of the Federal Trade Commission, this post being about the FAQ for the FTC Endorsement GuidesSeveral years ago, I wrote about the FTC Endorsement Guides. (These are known more formally as the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising.) This post discusses a recent update to the FAQ for the FTC Endorsement Guides.

Scope of the FTC Enforcement Guides

The following excerpts from the Introduction to the FAQ provide a succinct overview of the scope of the FTC Endorsement Guides. (more…)

What is an Operating Agreement?

The first page of an operating agreementI have used the term “operating agreement” in quite a few of this blog’s posts. However none of those posts explains in detail what a limited liability company (LLC) operating agreement must contain. This post provides that information.

The required contents of an operating agreement depend on the state in which the LLC is formed.

Operating Agreement – California

In California, where I practice, the definition of an operating agreement is set forth in Corporations Code Section 17701.02(s). (more…)

What is the Origin of the Copyright Symbol (©)?

Logo for Quora, where Dana Shultz answered a question about the copyright symbol "©"This post about the origin of the copyright symbol (©) is based on my answer to a Quora question. See Why are the symbols of “©” and “®” used to identify copyrights and registered trademarks?

Copyright Symbol as Part of Copyright Notice

The copyright symbol “©” can be part of a copyright notice under current copyright law. See 17 USC Section 401(b). (For more information about copyright notices, see Copyright Protection in Once Easy Lesson .) (more…)