We have spent almost 2 years going back and forth with our insurance company about who is responsible for the mold problem in our house. Is it too late to file a lawsuit against all the possible responsible parties, including our own insurer?

Home Mold Insurance Responsible Injury Law

We have spent almost 2 years going back and forth with our insurance company about who is responsible for the mold problem in our house. Is it too late to file a lawsuit against all the possible responsible parties, including our own insurer?

Every state has a statute of limitations, which is commonly from one to three years from the date the problem is discovered. If your state has a one year statute of limitations, that means you only have one year to file a lawsuit. After that, your claim will be completely barred.

When facing a mold claim, all of the potentially responsible parties will usually blame each other and point fingers. Your insurance carrier may deny coverage rather than resolve the situation and maybe even intentionally “drag its feet” with the intention of letting the statute of limitations lapse. This is when filing a lawsuit may be your only option to move forward, and you want to make sure as soon as possible into negotiations that you know what your time limit is so you don’t miss the deadline. If your insurer has done something illegal – such as delaying the resolution of a claim until the statute of limitations runs – you probably have grounds to bring an insurance bad faith lawsuit against them.

A “bad faith” clam is based on the fact that insurers have a duty to handle all claims in a reasonable time and manner – in other words, in “good” faith. If an insurance company fails to act in good faith and pay a valid claim, a policy-holder can bring a claim for damages against the insurer. If the denial of your claim can be shown to have been unreasonable, you should be able to recover consequential damages, which is whatever you had to pay out-of-pocket because of the denial, as well as additional damages to compensate you for emotional distress. In some states, you can also receive punitive damages, which are meant to punish the insurance company as a deterrence from wrongfully denying similar claims in the future.

In many cases, depending on the language of your homeowners’ insurance policy, you may indeed be entitled to insurance coverage for the costs and liabilities associated with mold-related lawsuits. However, insurers often assert numerous defenses to mold-related claims, some of which are valid. For instance, there might be a “pollution exclusion” in the policy; insurers have argued, sometimes successfully, that toxic mold falls within the definition of “pollution.” Some courts, however, have rejected the application of the pollution exclusion to mold-related claims. Insurers may also attempt to deny coverage on the ground that an insured knew, or should have known, about the presence of mold in their homes. Again, this argument has met sometimes will success, sometimes not. And in some cases, if you are dealing with a policy that was written fairly recently, there might even be a specific provision in your policy that excludes claims related to mold.

It is always a good idea to contact an attorney with experience with mold claims as soon as possible to preserve your rights and make sure you have the best possible chance for the maximum recovery.

Read more for related video clips.

Continue reading “We have spent almost 2 years going back and forth with our insurance company about who is responsible for the mold problem in our house. Is it too late to file a lawsuit against all the possible responsible parties, including our own insurer?”

I have a standard homeowners insurance policy (HO-3). Surely it will cover my costs related to a mold problem?

Standard Insurance Cover Mold Injury Law

I have a standard homeowners insurance policy (HO-3). Surely it will cover my costs related to a mold problem?

Don’t count on it. Most major homeowners insurance providers today exclude mold from standard policies, which means your pocketbook is threatened.

Whether mold contamination is covered under your policy will depend on the specific policy language and the cause of the contamination. Most insurance property policies are “specified peril” policies which means that you have to prove that the mold resulted from a covered loss (listed as a “listed peril”) (i.e., your roof was damaged and rain came in, a water pipe leaked). The costs of cleaning up mold after a fire are covered under the peril of fire, for example. But mold that is not part of a water damage claim, such as mold that has grown over years, would not be covered. If not, it is considered a home maintenance issue, like termites.

If your policy is an “all risk”, the ball is in the insurer’s court because it must show that the cause is excluded from the policy.

Most policies have a Rolodex of exclusions for damage caused by rot, pollution, wear and tear, deterioration, construction defects, and so forth. (An “exclusion” is a statement in an insurance policy which describes a condition or type of loss that is not covered by the policy.)

If the mold contamination developed because of water damage that is covered, your insurer may cover the cost. But expect a fight over identifying the most important cause of the mold contamination: is it covered or excluded? Read your policy.

Read more for related video clips.

Continue reading “I have a standard homeowners insurance policy (HO-3). Surely it will cover my costs related to a mold problem?”

How do insurance companies and juries assign values to pain and suffering? What factors do they take into account?

Pain And Suffering Factors Injury Law

How do insurance companies and juries assign values to pain and suffering? What factors do they take into account?

Putting a value on pain and suffering is probably the most difficult task for a jury in any injury case. There is no scientific formula and no chart or table juries, attorneys or insurance companies can look to. Every injury, every injured person, every accident and every case is different and deserves a thorough evaluation. Two people can have the same injury and one can suffer little while the other suffers a great deal; or one offers better proof than the other with more complete documentation or better witnesses; or they can be in two different parts of the country and get completely different settlements or awards.

There are many, many factors that must be taken into account to determine how much money someone will get for their pain and suffering. Juries and insurance companies look at the credibility of the witnesses. Were the injured person’s actions consistent with those of someone who was in pain? Were there any pre-existing injuries? Were they able to do what they normally do in their everyday lives, or were they forced to change or reduce their activities. What is their tolerance for pain in general? What do they do for a living? What is their marital status and family situation? How sympathetic a witness do they make? How skilled is their attorney at presenting their case? All these factors go into the evaluation of pain and suffering. Having said that, suppose we look at a hypothetical case where everything is practically the same for the injured parties, so you can see how the above factors added either one at a time or in combination, effect the outcome.

Suppose three people were injured on a bus. They all have the exact same injury, were treated by the same physician, received similar treatment, and incurred the same medical bills. They are all in their mid-thirties, live in the same zip code area, used the same lawyer to represent them and were all able to go back to their regular activities after 3 days of rest and recuperation. They are all homemakers in their mid-thirties. Will they all get the same amount for pain and suffering? On the surface, they should, right? But, what if homemaker A has a lower tolerance for pain than homemakers B and C? Shouldn’t she get more because she suffered more? If she can convince the jury or insurance company of this, then, yes, she will probably get more. Even one small difference can change everything.

Now, let’s take a look at the real world where no one and nothing is the same. The following changes may each, or in combination with other changes, have an impact, sometimes a significant impact, on the amount each person will be awarded for pain and suffering.

. Job/Income

Let’s keep the first person a homemaker, and make the second a blue-collar worker for the postal service, making $35,000 a year. The third is a successful accountant who earns $250,000 a year. The attorney brought the lawsuit against the bus company and tried the case together before the same jury. Will they all get the same amount for pain and suffering? Again, in theory, they should. Nothing is different, except their jobs and incomes, and what does that have to do with pain and suffering? Might the jury see the accountant as well off and not as needy as the postal worker and, thus, give him less? Might the insurance adjuster see the homemaker as someone who can afford to stay home, also not so needy? Might they see the postal worker as the hardest working among them, and want to give him more money? Job and income can definitely tip a jury one way or the other.

. Different ages

The homemaker is 32, the postal worker, 50, and the accountant, 67. Will there be a difference in the amount they each get for pain and suffering now? Quite possibly. Why? The accountant, at 67, is likely close to retiring. A jury may see that he probably has saved a lot of money given his large income and is ready to retire and is not as needy as the others. Pain and suffering is not based on need, but juries are people just like you and me and swayed by things that talk to all of us. Or they can see it the other way, that he’s older and probably suffered more because his body is not in as good shape as the others. At 50, the postal worker likely has years to go before he retires and doesn’t make a lot of money as it is. They may be sympathetic to his plight and give him more. The homemaker is young and will probably heal quicker. Or they may see her as having suffered more because she had to continue caring for children while healing from her injury. So you see how a small change like the age of a person may have a big impact on the award, in either direction.

. Different community/lifestyle

The homemaker lives in a suburban, gated housing development in a single-family home. The postal worker lives in a one-bedroom apartment in an urban area, and he travels everywhere by bus. The accountant lives high in the hills over an urban area in a 4-bedroom house, and has a housekeeper. Will this change make a difference? It could very well. The postal worker is obviously (to a jury) the least well off and may come across as the neediest. Should that have anything to do with pain and suffering? It could; everything does. He has to take a bus to work from where he lives-that might equal more inconvenience for him, and they may be more sympathetic to that. The homemaker seems to be in very comfortable surroundings and she has chosen not to work or doesn’t have to. They may not want to give her much. And with a housekeeper, the accountant may not evoke much sympathy.

. Different attorney

Now let’s add a different attorney for each injured person into the mix. The homemaker’s husband is her attorney. He is really a family law attorney, but he thought he could handle this for his wife. The postal worker hired a personal injury attorney who represented his friend in a car accident. He’s been out of law school for two years and works for a small law firm. The accountant hired a personal injury attorney with whom he shares office space, and who has practiced for twenty years. Will this make a difference? Most definitely. You want an experienced attorney who knows how to evaluate your case, how to tell your story convincingly to the other side and to a jury, how to negotiate and advocate for you. I would bet the accountant would do better here than the other two as a result of their choices of attorney.

. Where the case is filed

If the accountant’s case is filed in New York City, the postal worker’s case is filed in Broken Bow, Nebraska, and the homemaker’s case is filed in Des Moines, Iowa, who do you think has a chance of getting a higher award for pain and suffering? If you said the accountant, you are probably right. It matters where the case is filed. Juries in urban areas, in general, award more money than in small towns and rural areas. Big cities generally award more than small cities.

. Attitude/witness quality

Suppose the postal worker is honest, but hesitant when he testifies because he’s nervous. He has trouble telling his story because he can’t find the right words. He looks scared to death. Perhaps the accountant has a bit of an attitude, and it comes across to the jury that he thinks he has a lot of money coming to him. His body language shows that he thinks he’s very important, he keeps looking at his watch, and he winks at a young woman on the jury. He also grins inappropriately when questioned by opposing counsel. The homemaker is confident in her testimony, well spoken, and comes across as honest. How will these “performances” affect the amount of money these people will get for pain and suffering? Well, if you were on the jury, would you want to give a lot of money to the snooty accountant? Wouldn’t you be more inclined to give more to the nice homemaker and the nervous postal worker?

. Pre-existing injury

Suppose we add to the mix, that the postal worker has had a pre-existing back injury. He was treated about three years ago for back and shoulder pain caused by carrying a postal bag for years. Nine months ago, the postal service allowed him to start driving a postal truck so he doesn’t have to carry the bag. He says his back has been fine for about 6 months now. Will this change his award for pain and suffering? Possibly. The jury may believe that his old injury was aggravated and he’s had more pain as a result, making them want to give him a greater award. Alternatively, they may believe that he wasn’t that injured on the bus-this is just his old back pain that never went away, causing them to want to give him less. He and his attorney will need to convince them of the first scenario to come away with a higher award.

. Medical Treatment

The homemaker went to a chiropractor three times a week for treatment for three months following the accident and the chiropractor wants her to continue coming once a week for maintenance for another three months. The postal worker went to his HMO doctor once and was told to use ice and heat and take ibuprofen for one week. The accountant went to an orthopedist, had x-rays, saw a physical therapist twice and was done. Does the medical treatment received have an impact on pain and suffering awards or settlements? You bet! If the amount and type of treatment appears to be reasonable and necessary for the injury, the injured party comes across as much more honest to the jury. More or less treatment does not necessarily mean more money for pain and suffering, but it’s definitely another factor that is considered. Of course, running up the bills unnecessarily is looked at with a fair degree of suspicion. Stretching out treatment for a minor injury may look like greed to a jury and certainly to an insurance company.

Again, all of these factors, working alone, or in concert, create a picture for the jury and the insurance company that will have an impact on the monetary compensation for pain and suffering in one way or another. All that being said, the amount of dollars awarded for pain and suffering are not just pulled out of a hat. There are some tools that insurance companies and lawyers may use to help them arrive at a figure or at least a range for the purpose of determining how much to “demand” from the other party or how much to ask a jury to award. There are reports of past jury verdicts in virtually all states that can be reviewed to determine if there is a case with similar circumstances and/or injuries and/or medical expenses. These publications can be used as a general guideline along with all of the factors discussed above to come to a fair evaluation of the case. Your experienced personal injury attorney will know how to assess the value of your pain and suffering–what factors to include and what resources to utilize.

Read more for related video clips.

Continue reading “How do insurance companies and juries assign values to pain and suffering? What factors do they take into account?”

What is a “work for hire”?

Work For Hire Copyright Law Intellectual Property

What is a “work for hire”?

The default copyright scenario is that a creator owns his or her work. For another party to own the work, it must be set forth in a writing.

Under this default, therefore, contractors own their work. If a written agreement with a contractor sets forth that the work is a “work for hire”, then the person paying for the work in most cases will own the work.

There can be complex fact situations regarding contractors, employees and employers, joint contributions to works and works for hire. You should consult an attorney to be sure that you have the right language in any contract to achieve your desired goal.

Read more to view related video clips.

Continue reading “What is a “work for hire”?”

What are the main deal points in a music producer’s agreement?

Music Producer Agreement Music Law Intellectual Property

What are the main deal points in a music producer’s agreement?

A music producer or the producer’s “loan-out” corporation may sing a deal with artist, a production company, or a record company. The producer’s job is to help create and deliver quality master sound recordings. A music producer’s agreement may be for a single song (master), or may cover an entire album. Some of the following key terms may be addressed:

(1) Responsibilities: In your music producer’s agreement, make sure to clarify what is meant by “production.” For example, does it include selecting the songs, selecting the instruments and vocals, and help in writing or arranging songs, etc.

(2) “All-in” Deal: An “all-in” record company agreement is in which the artists is responsible for hiring the producer. In this case, the producer will want the artist to be responsible for any “overages” in the recording budget. Try to limit your liability for overages to only those caused by you (the artists), and not caused by or within the control of the producer, engineer, or recording studio.

(3) Producer Royalties: Producers generally charge royalties (“points) which range from 2.5% to 3% of suggested list retail price (SLRP) of an album, depending on the producer’s reputation, skills, and track record. For beginning artists, you can usually get a new (unestablished) producer to charge from 1% to 2% of records sold. Hot (established) producers can charge from 2% to 4%, while superstar producers can demand from 5% to even 6%. A producer’s royalty rate may also be increased at specified sales plateaus (e.g., an increase of 3% to 5% after 500,000 record sold.)

(4) Record One Royalties: Unlike artists, producers are customarily paid on all records sold, without recoupment of recording costs. These are called “record one” royalties because they are paid from the first record that is sold. Try to strike this language, if you can. If you are unable able to avoid a “record one” clause, you may be able to negotiate a better deal in terms of when those record one royalties will be paid.

(5) Other Royalty Deductions: As an artist, you may be under contract with a record label whose recording agreement provides for various royalty deductions, exclusions, and limitations. Producer royalties are generally calculated on the same basis as the artist, including the same deductions for “packaging”, “CDs”, and “free goods.” Moreover, producer royalties should also track the lower royalty rates paid to the artist in the same proportionate reduction (e.g., lower royalties from foreign, budget, and mid-price sales.).

(6) Producer Advances: Like artists, producers also get “advances.” The amount of the advances varies (like the points), depending on the stature of the producer. New (unestablished) producers can get anywhere from free, to $2,000 – $3,500 per master (song). A mid-level producer can charge anywhere from $3,500 – $7,500 per master. And superstar producers can get up to $10,000 – $15,000 per master, and sometimes even higher.

(7) Masters: Take time to commit in writing what each others’ rights are vis-a-vis the finished product, i.e., the masters and CD’s. Obviously, ownership of the masters should be in the artist.

(8) First Right of Refusal: Sometimes a producer will want to do the first re-mix and/or recording of the masters that he/she helped to create. If you want total creative control over your masters, avoid this.

(Reprinted with permission from Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “What are the main deal points in a music producer’s agreement?”

What are the main deal points in a recording agreement?

Recording Agreement Music Law Intellectual Property

What are the main deal points in a recording agreement?

If an exclusive recording agreement is being proposed, there are certain key issues that should be addressed and negotiated, if possible. As in all music-related agreements, all provisions are negotiable, but largely dependent on your clout. The following are the most important:

(1) Term: “Term” is the length the recording artist is required to provide personal service contract. The artist should watch out for the “open-ended” term provisions, which allows record companies to define a “year” as “8 months after delivery of the minimum recording obligation, whichever is later” or similar language. The artists should attempt to limit the initial fixed term to 12 (not 18) months.

(2) Artist’s Recording Commitment: This is the provision specifying how long an artist must exclusively record for a certain record label. It obligates the artist to record and deliver a certain number of masters to the record company. If a long term and substantial albums are sought by the record company, the artist with sufficient clout should ask for “promotional” provisions, such as guaranteed release, promotional budget, advertising, support, publicity, and/or video. The artist should also try to limit the delivery commitment to one or two albums per five-year term. If the artist cannot limit the recording commitment to a comfortable number, ask the record company for broad and favorable “suspension” terms.

(3) Record Companies Commitments: The artists should ask for a “guaranteed” release clause, defining “recording” to include “releasing.” The artists should also avoid “minimum commitment” language.

(4) Delivery: “Delivery” of a master recording at certain times is required of the recording artist by every recording contract. Failure to deliver product on time may prevent the record company from timely manufacturing and selling records. This may affect the artist in a number of ways, including extending options dates, expirations dates, and payments of advances.

(5) Suspension and Extension: These clauses are usually triggered by some failure of the artist to record or the artist committing an immoral act. Generally, care should taken by the artist to avoid automatic “suspension” clauses for non-delivery or late product. Instead, request that the suspension applies only if the non-delivery was the failure of the artist and/or that it is excused if the record company bars the artist from recording.

(6) Injunction and Equitable Relief: Record companies try to prevent the artist’s breach of a recording contract by restraining the artist from recording elsewhere. They do this by inserting a clause stating the artist’s personal services are “unique” and “special” and exclusive to the record company. Recording agreements with this language entitles the record company to injunctive and other equitable relief. The artist should limit this to provide that the record company is only entitled to “seek” injunctive or other equitable relief.

(7) Royalties: The “base royalty rate” is the gross or starting royalty for “regular full-price sales”. It is negotiable, and varies from artist to artist. Generally, it may range from 5% to 10% for a new unknown artist, to 15% for a hot new artist in a bidding war, or up to 18% for a seasoned recording artist. The base royalty rate is usually severely reduced by various other royalty provisions and definitions.

The packaging deduction is another common provision. Record companies usually deduct what is known as a “container charge”, “packaging deduction” or “jacket charge.” This is the single largest reduction of the base royalty percentage and is usually non-negotiable.

An artist may also rarely avoid a “free goods” clause; this allows the record company to give away free CDs and tapes to radio and retailers for promotional purposes that can result in as much as a 15% reduction on the base royalty rate.

Royalties from the sale of CD’s are often computed by many record companies on the basis of less than 100% of the sales. For example, royalties for CD’s are commonly calculated on the basis of only 85%, or even as low as 75% of sales. Try to avoid this historical practice. There is really no justification today for this reduction since the price of making CD’s is negligible compared to other formats.

Record club royalties are usually reduced by 50%, and are further calculated on the basis only 85% of sales. The right artist with sufficient clout may be able to ask for 100% sales on record club royalties, and should also place limits of freebies.

There are reductions for foreign royalties. For example, because of extra costs involved with over seas distribution, the royalty on foreign sales of records is usually reduced to one half (½) of the normal domestic rate.

And, if possible, try to insert a provision that accounts for countries with blocked currency or funds. Some countries require royalties remain in their countries or at least be spent in their country. To be protected against these blocked royalties, the artist should negotiate a clause that requires the deposit of these blocked royalties in the name of the artist.

(8) Controlled Compostition Clause: Mechanical royalties are paid by the record company to the artist based on US sales of records. Under copyright law, there is a statutory minimum. However, under the so-called “controlled composition clause”, or “reduced rate, ” a record company usually gets the artist to take a negotiated or reduced mechanical license rate. There are several types of reductions in your statutory rate.

A. The rate is reduced by percentage; instead of 100% of the statutory US rate. The mechanical rate is commonly 75% of the minimum statutory rate, as of one of the following dates:

(1) commencement of recording;

(2) date of delivery;

(3) date of initial release; or

(4) date of sale.

Obviously, the latter date is more advantageous to an artist, as the statutory rate may go up from the date of recording to the date of sale.

B. The rate is reduced further to a certain number of songs. Thus, the “rate” is usually limited to 10 to 11 songs per record, even though you may have 15 songs on the album.

C. The reduced “x 10 min stat” rate is also further reduced depending on the configuration (format). Thus, a typical reduced mechanical license rate would be: 10 songs x 75% rate on LP’s, 5 songs x 75% on EP’s, and 2 songs x 75% rate on singles.

D. Mechanicals are payable only on records for which record royalties are payable, which usually means no payment on “free goods” and promotional copies.

E. There is usually a further reduced rate for secondary markets, such as for record clubs sales, budget lines, and sometimes mid-priced records. And, there may also be special treatment for multi-record packages. There is also a special rule regarding “Greatest Hits” or other re-releases.

(9) Advances: Royalty “advances” are basically pre-payments of estimated royalties. They are non-refundable but recoupable, meaning they can be paid back to the record company from artist’s earnings only. They come in different forms, the obvious being an advance payable upon execution of an exclusive recording agreement.

(10) Reserves: Currently, most record companies limit returns to 20% to 22% of records shipped. Because record companies do not know how many records will be returned by retailers, they compute mechanical royalties based on net sales “less returns” so as to avoid any overpayment of royalties. They maintain what is known as a “reserve” against future returns. The reserves is a percentage of gross sales of a record. These reserves may range from 30% to 75%. Since most record companies are not going to accept more than a 22% return privilege from retailers, the artist should try to limit these to “reasonable” reserves, not to exceed a certain percentage (e.g., 20% to 25%), and include a specific liquidation clause ensuring full payment after a certain period of time (e.g., within three or four accounting periods.).

(11) Cross-collateralization: This clause should definitely be avoided. A cross-collateralization clause compromises the song writer’s otherwise independent royalty income. Under this clause, the record company is allowed to recoup mechanical royalty advances from sources other than from the actual sales of the record in question. For example, if an artist owes the record company for unrecouped mechanical royalties from LP1, the record company can use sales from LP2 or even publishing income to get paid. This obviously substantially reduces and sometimes eliminates the likelihood that the artist will receive any royalties. This clause is never called by its name. It is usually recognizable by the term, “all agreements between artist and record company heretofore or hereafter entered into shall be deemed to be one accounting unit.” Always try to get these clauses removed from the recording contract.

(12) Accounting: This is the provision that tells the artist when he/she gets paid. Record companies usually pay semi-annually (e.g. a specified number of days after June 30 and December 31). Others account on a quarterly basis, every three months.

(13) Audit: An audit provision allows the artist to contest and investigate a royalty dispute by looking at the record company’s books. Most audit provisions limit the audit period to and require the artist to actually pay for and use only a certified public accountant. In order to deter vexatious or litigious artist, many record companies also place restrictions on how may audits can take place in a give time period. Some agreements also exclude manufacturing records from the audit. The artist should try to include a provision whereby the cost of the audit is paid for by the record company if the audits reveals a substantial underpayment of royalties (e.g. a minimum of a 10% variance.) There is usually an express limitation on the period the artists may object to or question a particular accounting statement. The time to object will vary from 90 days to 3 years or more.

Whenever possible, a qualified music lawyer should be consulted before any recording agreement is signed. With the right counsel and bargaining power, you should be able to land better deals.

(Reprinted with permission from Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “What are the main deal points in a recording agreement?”

Web sites: Writing the Disclaimers and Copyright Notices

Writing Web Site Disclaimers Copyright Notices Intellectual Property Intellectual Property

Web sites: Writing the Disclaimers and Copyright Notices

Purpose of a Disclaimer
A disclaimer on a Web site is essential as it serves to protect and limit the Web site owner’s liability by outlining expectations and obligations a person will agree to before using the site. At its core, it removes any warranty for the information provided and gives notice that use of the site is at a person’s own risk.
One disclaimer serves the content for the entire site. Each page, however, should include a link to the disclaimer. Additionally, on pages that contain specialized information you may want to use an abbreviated disclaimer. For example, if you provide medical information you may include that you are not a doctor; the information should not be considered medical advice; the information may be out-of-date, inaccurate or incomplete; and suggest the user speak to a doctor.
Examples of What Might be Included in a Disclaimer Statement
Your disclaimer should be both explicit and broad. Here are some examples of wording that might be used in a disclaimer statement:
The material on the site is made available with the understanding that you are not engaged in providing professional advice.
Before relying on material on the site users should independently verify the accuracy, completeness and relevance for their purposes and obtain any appropriate professional advice.
The material may include opinions, recommendations or other content from third parties that do not necessarily reflect your views.
Links to other Web sites are included for the user’s convenience and do not constitute an endorsement of the material on those sites, or any associated product or service.
The listing of a person or company in any part of your site in no way implies any form of endorsement by you of products or services provided by that person or company. (This is particularly important when you are using reciprocal links and logos to improve Google.com rankings.)
Copyright Notice
In addition to the disclaimer, you must also have a copyright notice that complies with the Digital Millennium Copyright Act (DMCA). It should state that the Web site and its content are subject to the laws of the United States, that you own the copyright in the material on the site, and which third parties own the copyright to some materials on the site. You will also want to clarify your policy on allowing others to use the material on the site, what permissions are necessary, etc.
Infringement and Take Down Notices
Moreover, you need to include language from the DMCA regarding complaints of copyright infringement and take down notices. This language advises both parties in a dispute of the necessary steps that they must follow either to have material taken off the site or to defend against a copyright infringement claim. For Web sites that rely heavily on third-party content, such as YouTube.com and Facebook.com a more thorough copyright policy may be required. An intellectual property lawyer will be involved in drawing up the statements on their Web sites.
The Risk of Transmitting Information Across the Internet
A clause highlighting the inherent risks in sending sensitive materials to or through your site is also important. A further step would be to use a popup window that requires users to click that they understand the risk before sending the information.
Policing Content
If your site contains content aimed at a mature audience, always have a disclaimer appear before the user can enter the site along with an “over 18” click box. If you are concerned about users posting sensitive material to your site, then you may consider including an obscenity clause that warns visitors that inappropriate material will be removed and that abusers will be prevented from posting further content.
The more control over content that you exercise, the more responsibility you have to regulate. Online service providers (ISP) receive a safe harbor through the DMCA on the basis that they merely provide the space for users, that they cannot police every user’s postings and that they receive no revenue from the posted content. Google, Inc. has been successful to date walking that fine line. Companies such as Napster and Grokster, however, have learned at a great cost that there are limitations to what the DMCA can protect.
Google, You Tube and Viacom Creating the Law
Currently Viacom, Inc.’s lawsuit against YouTube, Inc., YouTube, LLC, and Google, Inc. is winding its way through the New York District Court. Viacom contends that YouTube’s users contributed pirated copyrighted works owned by Viacom to the site by the thousands, including television programs, motion pictures, music recordings, and other entertainment programs. Like the Napster and Grokster lawsuits that established rules for downloading copyrighted music, the Google, You Tube and Viacom battle is set to become a seminal case for online media and may eventually affect web owners’ abilities to avoid liability even with disclaimers on their Web sites.

Read more to view related video clips.

Continue reading “Web sites: Writing the Disclaimers and Copyright Notices”