Saturday, October 22, 2016
Photography has been my major hobby since at least 2001, back when we still had to go through the pains of film. Below is the Model Release I used when shooting for my latest photo book, I Am Ladyboy, about transgender Thai models. The release was designed to also cover the behind-the-scenes videos I made for my YouTube channel. I am a big fan of simple model releases. This is particularly important when you are shooting in countries where English is not model's native language.
Here is why. The more complex you make your model release, the higher the likelihood that:
1) The model will not understand it and refuse/delay signing.
2) It will be misinterpreted. In those cases, any ambiguity is usually interpreted by the courts against the party who drafted the document (normally, the photographer).
So, keep it simple to prevent the above from happening. My Model Releases (US and foreign) normally only have three key elements:
1) Model gets the money.
2) Photographer gets all rights to the photos. You don't have to enumerate and spell out all the rights you want. Just list a couple of major ones "and all other lawful purposes." Otherwise, if you make a huge list of enumerated rights, but then you want to do something that is not on that list, you might be out of luck despite all that great effort in drafting a complex release. So, just keep it simple - major ones "and all other lawful
Wednesday, October 19, 2016
1) Tax-free corporate profits
Hong Kong corporate tax rate is 0% for transactions outside Hong Kong. You won’t have to pay tax to HK for business conducted outside that country. Note that US taxpayers are still subject to US taxes on their worldwide personal income, though. Nevertheless, Hong Kong company can provide a shelter from the 35% US corporate tax rate, one of the highest in the world.
2) Allows 100% foreign ownership
As far as I know, Singapore and Hong Kong are the only Asian countries that allow foreigners to own 100% of the company and don’t require locals to be included on the board of directors.
3) Can be done remotely, inexpensively, not complicated
Incorporating in Hong Kong is not complicated or expensive. You can use a local firm to set up your company for less than $1,000US in a few weeks. There are services that will provide you with a local address and a phone number for under $50/month. If you need a Hong Kong bank account, normally, you would need to fly over there for a personal visit to the bank. However, there are services that can help you open a bank account without a personal visit. No minimum share capital is required for incorporation. Very good FAQ on the Hong Kong Companies Registry website.
4) Hong Kong is a respectable jurisdiction
Hong Kong is one of the world's most significant financial centres, with the highest Financial Development Index score. World Competitiveness Yearbook consistently ranks Hong Kong as one of the the world's most competitive jurisdictions with the least amount of government interference into private business transactions. Hong Kong, being the financial center of Asia, is highly unlikely to end up on any financial blacklists unlike some other countries popular for offshore incorporation. Hong Kong is not considered a tax heaven, but rather a low tax country with a transparent economic system.
5) Established legal system
Hong Kong maintains a separate legal system from China. It is based on British common law. Hong Kong legal system is well established. This country consistently ranks as one of the least corrupt in Asia, so the law is enforced.
Hong Kong is strategically located for business in Asia. It is right next to China and a short flight away from other Asian destinations. Hong Kong is just one hour's drive away from the Pearl River Delta in China, the world's largest manufacturing region. Southeast Asia is a gorgeous region to visit.
7) Multi-currency bank accounts
Multi currency bank accounts are allowed for foreign-owned Hong Kong companies. HSBC seems like a popular choice for foreign owners of Hong Kong companies.
Saturday, October 8, 2016
On September 24, Governor Jerry Brown signed AB 691 that adopted the Uniform Fiduciary Access to Digital Access Act (UFADAA). The law places access to a wide range of digital assets, including electronic documentation of financial accounts, on par with access to traditional tangible assets.
What problems does the new law address?
Because of the current gaps in priobate, property, privacy and contract laws, the fiduciaries may have hard time accessing online property and records. Not all of the current laws have caught up with the digital age. In states where “digital assets” are not properly defined and regulated this creates a problem for heirs to access the deceased relative’s online records.
Methods of transferring traditional tangible property (e.g. real estate) are well established. So are the methods for transferring traditional intangible property such as stocks. But digital assets are harder to categorize using traditional legal approaches.
One of the biggest problems is that traditional contract and privacy laws prevent estate administrators from accessing password-protected accounts. It’s because when you sign up for an account, the use of that account is governed by the terms of service (TOS). When you sign up for an account, the TOS necome your contract with the online service provider. Usually, the TOS would state that the user cannot allow anyone else to access his or her account and must keep login credentials confidential. The TOS would normally disallow the transfer or assignment of an account. That precludes online service providers (e.g. Facebook, Gmail, online banking) from releasing access to online financial statements, emails, photos and other content - even after the owner is dead. That can create a particularly big problem in cases where the deceased preferred paperless forms of record-keeping.
So, if digital assets and login credentials are not properly accounted for in a will, the fiduciaries may have hard time accessing online property and records.
What solutions does the new law provide?
Probate law is mostly state law. Meaning each state gets to adopt its own probate laws. To address the access to digital assets problem, most states have now either introduced or enacted the Uniform Fiduciary Access to Digital Assets Act (UFADAA). Its main features are:
- If the terms of service do not address fiduciary access, the default rules of UFADAA will apply.
allows users to specify whether their digital assets should be preserved, distributed to heirs, or destroyed.
- Private communications like email and social media conversations are protected by federal privacy law. prevents the companies that store our communications from releasing them to fiduciaries unless the user consented to disclosure. Fiduciaries must provide proof of their authority in the form of a certified document. Custodians of digital assets that comply with a fiduciary’s apparently authorized request for access are immune from any liability under statutes that prohibit unauthorized access. A fiduciary’s authority over digital assets is limited by federal law, including the Copyright Act and the Electronic Communications Privacy Act.
- UFADAA’s rules attempt to balance the user’s privacy interest with the fiduciary’s need for access by making a distinction between the “content of electronic communications,” the “catalogue of electronic communications”, and other types of digital assets. The content of electronic communications includes the subject line and body of a user’s email messages, text messages, and other messages between private parties. A fiduciary may never access the content of electronic communications without the user’s consent.
- When necessary, a fiduciary may have a right to access a catalogue of the user’s electronic communications – essentially a list of communications showing the addresses of the sender and recipient, and the date and time the message was sent. An agent under a power of attorney who has authority to access the principal’s business files will have access under UFADAA to any files stored in “the cloud” as well as those stored in file cabinets. Similarly, an executor that is distributing funds from the decedent’s bank account will also have access to the decedent’s virtual currency account (e.g. bitcoin).
- Under UFADAA, fiduciaries for digital assets are subject to the same fiduciary duties that normally apply to tangible assets. Thus, for example, an executor may not publish the decedent’s confidential communications or impersonate the decedent by sending email from the decedent’s account.
Sunday, October 2, 2016
On September 29, the Autorité de la concurrence (French competition authority) fined the main professional union of modeling agencies, the SYNAM, “for having, between 2000 and 2010, drawn up and distributed pricing schedules as a guide to modeling agencies' commercial policy.” Advertisers and couture houses could refer to these schedules when setting prices for filming, advertising photos and catwalk shows. 37 modeling agencies, representing almost the entire market turnover, were also fined for having participated in meetings on union pricing schedules.
Pricing schedules drawn up by the professional union
Shortly after the obligatory annual negotiations on models' minimum salaries, as per the collective agreement, the professional union drew up and distributed pricing schedules. The union was ambiguous as to the “official” nature of these pricing schedules, which not only covered minimum salary, but also established the total price that clients were invoiced for modeling services, with variations of up to three times minimum salary. The schedules were distributed to union members by letter, email and on the union website.
The agencies’ role in the union pricing schedules
Saturday, October 1, 2016
On September 29, 2016, a federal jury of five men and two women in the U.S. District Court for the Southern District of New York ordered Costco to pay Tiffany $5.5 million in damages for selling about 2,500 diamond engagement rings with Tiffany brand name on them.
This case started back in 2012, when a customer informed Tiffany that she saw “Tiffany” branded rings that had nothing to do with Tiffany & Co. for sale at Costco. Tiffany filed a trademark infringement claim. Costco tried defending itself on the grounds that is used the word “Tiffany” is a generic name to describe a type of diamond ring setting.
Trademark infringement law makes it an infraction to sell goods when there is a high likelihood of consumer confusion as to the origin of goods. In other words, it’s illegal if a significant portion of buyers think that they are buying an original luxury item and not a discount imitation.
So, were the consumers led to think they were buying an actual Tiffany ring? Since Costco does sell discounted name-brand merchandise, customers could very well assume they were only getting a great deal on an original ring from Tiffany & Co., not some random generic “Tiffany-style” setting. One couple testified that they learned, to their great disappointment, that their engagement ring wasn’t original Tiffany only after the ring’s stone fell out. On Sept. 8, U.S. District Judge Laura Taylor Swain ruled for the jeweler, citing a study that found nine out of ten consumers view Tiffany as a brand identifier rather than a generic term.
On September 22, Rep. Mark Pocan (WI-D) introduced the Corporate Transparency and Accountability Act, a bill which would require country-by-country reporting (CBCR) for all publicly-traded multinational companies. The OECD insists that mandatory CBCR is crucial in fighting corporate shifting of profits overseas.
Earlier this year, the Internal Revenue Service implemented rules to enact CBCR which would require U.S. parent companies with least $850 million in annual revenue to report to IRS information on profits, tax rates, and subsidies received in every country in which they operate. The Corporate Transparency and Accountability Act is different in that it would require this financial information to be available to public.
The bill is an attempt to add transparency to financial regulations that allowed multinational corporations to amass $2.4 trillion offshore to avoid paying hundreds of billions in taxes.
Monday, May 9, 2016
Obtaining a money judgment in your favor does not guarantee that you will actually get paid. The court will not collect the amount due, although it will issue the necessary orders to help you. Your judgment is good for 10 years and renewable (to extend its 10 year expiration date) after that.
When can you start the collection process?
You can start when either the time for appeal runs out (30 days after the initial judgment) or after you win the appeal and the judgment is sent back to the small claims court (this usually takes 10 days after the appeals decision). A debtor must send you a Judgment Debtor's Statement of Assets (Form SC-133). Some courts mail a Form SC-133 to the debtor together with the original judgment.
What can you do to collect?
It’s illegal to harass the debtor (party that owes you money) but sending a letter to remind they owe you money pursuant to the court order enclosed is fine. Consider offering to negotiate a payment plan. Keep track of your expenses because some of them may be reimbursed.
After the debtor ignores both you and the Judgment Debtor's Statement of Assets form, you can ask court for sanctions and to schedule a debtor’s examination. This procedure compels the debtor to appear in court and answer your questions about his or her assets under oath. This way you find out which, if any, assets it is best to go after first. Ask about income sources, employment, property locations, bank accounts, stocks, etc. You have the right to subpoena debtor’s paystubs, deeds and similar documents that prove the value of the assets. You can even ask the judge to order the debtor to turn over cash in his or her wallet to you right there.
To start the debtor’s examination process, you must fill out:
1) Application and Order to Produce Statement of Assets and to Appear for Examination (Form SC-134) and attach a blank Judgment Debtor's Statement of Assets;
2) Small Claims Subpoena for Personal Appearance and Production of Documents at Trial or Hearing and Declaration (Form SC-107).
File these forms with the court and make sure to serve them on the debtor.
Ignoring this hearing has potentially serious consequences for the debtor. Failure to show up may result in a bench warrant for the debtor's arrest. The judge will most likely not be present, so you will have to ask the questions yourself. If you have any problems with the debtor at the hearing, or the debtor fails to show up, you can ask the clerk to go get the judge.
Get a Writ of Execution
Once you know what debtor’s assets can be used to satisfy your judgment, the first step to those assets is usually to ask the court for a Writ of Execution (Form EJ-130). Writ of Execution directs the sheriff or marshal to enforce the judgment in the county where the debtor’s assets are located. Writ of Execution is good for 180 days. Courts handle this procedure differently, so contact your particular judgment court for details.
Garnish debtor’s wages, bank account or a safe deposit box
Drop off the Writ of Execution and an Application for Earnings Withholding Order (Wage Garnishment) (Form WG-001) at the sheriff’s or marshall’s office. You may collect up to 25 percent of the amount over the federal minimum wage that the debtor earns, if the debtor is employed by someone else. You can’t garnish a self-employed debtor’s wages. You will have to hire a process server or the sheriff/marshall to serve papers on the debtor’s employer.
Put a lien on the debtor’s real property
A lien allows you to get paid, with interest, when the debtor tries to sell or refinance a house, land or other real property. To avoid waiting for the debtor to sell/refinance, you can also try to foreclose on the lien, if there is enough equity, by forcing the debtor to sell now and pay with the proceeds.
Put a lien on the debtor’s lawsuit
If you find out that the debtor has a lawsuit against another party, for approximately $25 you can put a lien on the money that the debtor will be entitled to receive if the lawsuit is successful.
Put a lien on debtor’s personal property
You can try to put a lien on the debtor’s car, electronics, jewelry, coin collection, etc. The cost of putting a lien on a personal property often does not make it worth the effort.
Ask a lawyer or collection agency for help
A lawyer or collection agency will help you locate debtor’s assets and collect on your judgment for a percentage of what they manage to recover.
Thursday, May 5, 2016
Trademark is a brand name. You can register your business name, logo, and your product names. For example, McDonald's, the double arched "M" symbol, and Big Mac are all trademarks. Trademark/service mark may include words, names, symbols used, or intended to be used, in commerce to distinguish your goods or services from goods or services of others. The terms “trademark” and “service marks” are often used interchangeably, and both offer the same protections. If you use your trademark or service mark in interstate commerce (you do business with customers in other states or internationally) you can register your mark both at the federal and state level. If you do business exclusively within your state, you can register at the state level.
Federal trademark or service mark registration offers your
Thursday, April 21, 2016
On Monday, a Kanye West fan has filed an $84M lawsuit against the rapper and a streaming service he co-owns, Tidal. Plaintiff claims West fraudulently promised fans that his album, The Life of Pablo, would be available only on Tidal. So, many fans signed up for Tidal because they believed it was the only way to hear the album.
But a month and a half later, the album was subsequently released for free on Apple Music and Spotify. West also began selling the album through his own online marketplace. Complaint alleges that, because of West’s false promise, Tidal subscriptions tripled from 1 million to 3 million subscribers in just over a month. Plaintiff claims that the 2 million new subscribers and their personal information are worth $84 million, based on “publicly available acquisitions as a comparable metric.” Plaintiff has asked the court to certify his proposed class action lawsuit, which would enable those two million new users to join in the lawsuit and share in a settlement. Plaintiff also asks for an “order requiring Tidal to delete the private information of Plaintiff and the Class members that it collected, cancel all outstanding negative options of any free trials created during the class period, and cease any monetization efforts relying on the illegally obtained information.”
Tidal and Kanye West have 30 days to respond to the complaint.
Wednesday, April 20, 2016
2. European Consumer Protectiona. Unfair Contract Terms Directive
b. The Distance Selling Directive
3. IP Protection for Software in Japan
4. Reverse Engineering Clausesa. Unites States
5. Quickwrapa. Shrinkwrap
6. Practice Pointersa. Checklist
1. IntroductionSoftware licensing is the third largest industry in the United States. Most leading software companies are incorporated in the United States, Japan, and European countries. However, since 65% of practicing U.S. attorneys do not address the UNIDROIT Principles of International Commercial Contracts, or other international norms, it may surprise many U.S. counsel that a standard U.S. software licensing contract will often violate European consumer law, generate bad publicity and result in fines. AOL France learned the hard way in 2004, when a French court invalidated nearly every clause in its standard subscriber contract, even though AOL had localized and revised the agreement to suit the local market in response to requests from a consumer protection agency. The court awarded ?30,000 in damages, levied a fine of ?1,000 for each day the invalidated clauses remained on AOL?s website, and ordered substantive parts of the court?s decision be published on the AOL?s website and three national daily newspapers. The reviewing court affirmed on all counts.
The experience of AOL in France demonstrates a large discrepancy between the U.S. and EU online consumer agreements. U.S. courts have routinely enforced many agreements similar to AOL France?s, even with terms less favorable to consumers. As the software industry increasingly goes global, corporate counsel must not only stay on top of foreign regulatory developments but be comfortable working in a wide variety of legal traditions as well.
Software licensors need to determine whether they can realize their investment and protect their source code in high piracy countries, especially those with a high rate of technological literacy. While developing countries currently play a relatively minor role in the global software industry, China, Russia, and Brazil are showing rapid progress. Due to rapidly growing software markets of China, Russia, and India, the worldwide software theft losses exceeded the $50 billion mark. Leading software makers estimate the 2009 rate of global software piracy at 43%, with Georgia and Zimbabwe topping the charts with a piracy rate exceeding 90%, and the United States showing the lowest worldwide rate of 20%. Approximately 50% to 90% of software available on auction websites such as eBay is pirated.
U.S. counsel needs to gain familiarity with various foreign intellectual property protection regimes because software licensing laws are generally not extraterritorial. Nevertheless, a number of high piracy countries agree to enforce U.S. intellectual property rights as a condition of joining into trade alliances. For example, a signatory country of the Berne Convention must grant the same protection to intellectual property rights of citizens of other signatory states as it grants to its own nationals. Prior to the Berne Convention, nationals of their respective countries had no formal copyright protection abroad. The Berne Convention signatories went on to create the World Intellectual Property Organization (WIPO), which currently consists of 184 Member States and is now an agency of the United Nations devoted to developing an international intellectual property system. Under the Trade-Related Aspects of Intellectual Property Rights (TRIPS), developing countries must accept minimum intellectual property rights in exchange for access to lucrative markets.
A typical U.S.-style contract, based on principles of free market economy, will be viewed as one-sided and unconscionable in Europe and Japan, where lawmakers place more emphasis on providing consumers with a social safety net. A software licensor cannot freely require licensees in those major markets to arbitrate away from home, waive basic consumer rights, reverse engineering rights, choice of law, or cooling off periods for distance contracts. This paper analyses some of the most significant points of tension in software licensing law between the U.S. and the next two biggest software markets - EU and Japan. Practice pointers at the end will help U.S. counsel to avoid costly mistakes and bad publicity by effectively localizing contract terms and business strategies to account for differences in law and culture.
2. European Consumer ProtectionThe considerable differences in contract law in the U.S. and EU reflect different perceptions about the role of government in regulating markets. The U.S. has traditionally been skeptical about government regulation while placing more emphasis on market-driven institutional arrangements. Digital consumer legislation has not had great success in the U.S. The most famous pro-consumer legislation proposed in the recent time, the Digital Media Consumers' Rights Act (DMCRA),  has been introduced into Congress three times without success. 
On the contrary, as evidenced by the number of recent major consumer protection laws and