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By Elspeth Crawford
The right of publicity is the inherent right of every human being to control the commercial use of his or her identity. If your image is used to sell something without your permission, that is a violation of your right of publicity. Some people, in particular famous people, have a bigger interest in enforcing this right than others. Rush Limbaugh, for example, is known for his conservative viewpoints on American politics, so he probably wouldn’t want to have his face put on an advertisement for a liberal talk show. But celebrities aren’t the only people entitled to protect their identities: everyone has a right to safeguard the way they’re viewed by the public large. On the flip side, if you have a business and are thinking about invoking a public figure as a way to promote yourself, knowing what lines you can and cannot cross is very useful.
Establishing a Violation of the Right of Publicity
If you or your business believes that some other person or company is trading on your name and reputation without your permission, or if you’re thinking of doing that yourself, know that there are a couple of things that must be shown before anyone has to pay up. Specifically, the person alleging that their right of publicity has been infringed must show that:
Something to remember about cases for infringement of the right to publicity is that intent does not matter. If you use a celebrity’s image to promote your product without knowing that who that celebrity is are or that they’re famous, you’re still liable for damages if they come after you.
What kind of remedies are available for a violation of the right of publicity?
In order to recover damages under a right of publicity case, it is not necessary to establish any economic loss. If a celebrity’s image has been used commercially as described above, some amount of damages will be presumed. However, such an amount is likely to be nominal. To recover anything more, the person whose image has been misappropriated must establish that they lost money as the result of the misappropriation. This can be difficult to do, but at the least they will be able to obtain an injunction ordering you to stop using the image in commerce. In the worst case, those who misappropriate someone else’s image can be made to pay expensive punitive damages if they misappropriate it with full knowledge that what they were doing is against the law.
Is there a time limit on filing a case for a violation of the right of publicity?
The statute of limitations for violations of someone’s right of publicity varies between jurisdictions, but typically the limitations period is one or two years.
Continuation of the Right of Publicity After Death
Like many rights, the right of publicity can pass down from one person to another. For example, a certain movie star may be deceased, but their right of publicity persists and if wielded properly can still stop people from misappropriating their image. Whether the right gets passed down after death depends on whether the celebrity at issue exercised the right during their lifetime. If they did, the right passes down their family tree, but if they didn’t their image passes into the public domain and can be used by anyone.
How Is Identity Theft Committed?
By Elspeth Crawford
According to the FBI, identity theft is the fastest growing crime in the U.S., with over 700,000 victims a year. Learning about how it is commonly committed can help you prevent it from happening.
Identity thieves increasingly make use of high-tech methods to poach personal information, but ordinary theft is still a distinct possibility. Identity thieves can go rooting through your trash for identifying information about you, steal mail from out of your mailbox, or simply snatch your wallet or purse from a public place.
If he or she has a good memory, an identity thief can get a prolonged look at your personal information, say your credit card number, in a public place and then memorize that number for later use.
Identity thieves can use small credit card readers to copy and later use the information on a card’s magnetic strip. This practice is called skimming. Skimming most often occurs when people turn their credit cards over to another person who then runs it through a card reader. This doesn’t mean that you have to walk back to the kitchen every time you use your credit card to pay at a restaurant, but be wary of letting your card out of sight at establishments you do not trust.
Phishing occurs when an identity thief sends a fake e-mail to a user claiming to be from an institution which the user trusts. The identity thief might, for example, send a user an e-mail purporting to be from their bank and telling the user that there is a problem with one of their accounts. The user would then be directed to a phony website and tricked into giving away personal information in an attempt to fix the made-up problem.
Related to phishing is pharming, a practice which also makes use of phony websites but does not involve using e-mails to trick a user into visiting those websites. Instead, pharming redirects users to a phony website even if they type the correct website address into their browsers. Careful monitoring of your spam folder and keeping your malware protection current can help protect against phishing and pharming behavior.
Be wary of connecting to the internet via an unprotected wireless network. Such networks are easier to hack into than password-protected networks, and your information could become pray to identity thieves.
Many people keep sensitive information on their hard drives. When it comes time to get a new desktop computer, be sure to erase the data on your hard drive before disposing of it. Otherwise, enterprising identity thieves may be able to rebuild your hard drive and extract information from it.
Likewise, be cautious when taking your laptop out in public. Laptop theft is increasingly common, and thieves can use the information stored in a laptop to your disadvantage. The same applies to Smartphones, which are even easier to steal than laptops.
Many people post personal information on social networking sites like Facebook. You’re unlikely to put something like your social security number of Facebook, but the information you do provide can allow identity thieves to put together a profile of you they could use to get more sensitive information. For this reason, be wary of accepting invitations from people you do not know.
Computer Security Attacks
The reality is that even if you are not careless about your personal information and have it registered only with reputable institutions, you may still be vulnerable to identity theft. Identity thieves can hack into the records of such institutions and steal those records, or someone at the institution could steal them from within. The Privacy Rights Clearinghouse in the USA documented over 900 data breaches by major firms over a period of three years which resulted in a total of 200 million records being compromised. No method of protection is absolute, but it’s fully within your power to minimize risk. If the worst should happen, know what steps to take following an identity theft.
All states require drivers to buy automobile insurance, but the reality is that, whether out of ignorance, inability, or unwillingness, many drivers ignore this requirement. If you get into an accident with such a driver and you do not have uninsured motorist coverage, you may find yourself needing to take the uninsured driver to court in order to recover damages. Seeing as how that driver could not afford insurance in the first place, it seems unlikely that you will recover anything from them. For this reason, it is prudent to purchase uninsured motorist coverage where you have the option to do so. In a handful of states, it is required.
How it Works
Most uninsured motorist laws give coverage for all sums the owner would be legally entitled to recover if the uninsured motorist was insured, but the specifics involving just what the motorist would have been entitled to recover differ state by state.
Definition of Uninsured Vehicle
Definitions of an uninsured vehicle change slightly from state to state, but most define it as a driver who did not have any insurance, had insurance that did not meet state-mandated minimum liability requirements, or whose insurance company denied their claim or was not financially able to pay it. Most laws also specify that uninsured vehicles include:
Coverage of Persons
It is very important that the person claiming benefits under an uninsured motorist policy fall within the policy’s definition of an “insured.” Those covered differ from policy to policy and it is vital that you understand who is covered before making a purchase. People commonly covered include:
Underinsured Motorist Insurance
You can also purchase insurance that protects you from underinsured drivers in addition to uninsured ones. An underinsured driver is someone who met minimum legal financial responsibility requirements but did not have payment limits high enough to cover the damage they caused. Underinsured motorist protection pays you for damages that exceed the payment limits carried by a driver who is considered underinsured.
Every state in the union requires that drivers carry some kind of liability insurance. Such insurance protects you in the event of an accident where you might otherwise be vulnerable to an expensive and lengthy lawsuit. At the same time, insurance policies can be difficult to manage both before and after an accident. Knowing how to communicate with an insurance company at all points in the process is very important.
Talking with your insurance company after an accident
Talking with the other driver’s insurance company after an accident
Managing Your Claim
Guide to S Corporations
By Elspeth Crawford
An S corporation is a corporation created under state law that elects to be taxed under Subchapter S of the Internal Revenue Code. This election results in an S corporation being treated as a pass-through entity for federal income tax purposes, the profits and losses of which pass through to the shareholders rather than being taxed to the corporation.
Apart from the manner in which it is taxed, an S corporation is indistinguishable from a C corporation. A S corporation is formed in the same manner as a C corporation, its shareholders enjoy the same limited liability protections, and it is managed in the same manner.
In order to qualify as an S corporation for federal income tax purposes, the corporation must file an election with the Internal Revenue Service. This election can be revoked at any time by the consent of the shareholders. It may also be terminated under certain circumstances.
If an S corporation election is in effect, profits and losses of the corporation are passed through and taxed on the individual returns of the shareholders. All shares of stock of an S corporation must have the same rights to dividends and liquidating distributions.
In some states that levy income taxes, S corporations are treated as pass through entities. In other states with income taxes, S corporations are treated in the same manner as C corporations.
The treatment of S corporations is the same as that of C corporations from the standpoint of shareholder liability. Making an S corporation election only affects the income taxation of a corporation. It does not affect the limited liability of the corporation's shareholders, who enjoy limited liability to the same extent as shareholders of a C corporation.
S corporations the same as C corporations from the standpoint of management and control. Making an S corporation election only affects the income taxation of a corporation. It does not affect the management of the corporation.
Transferability of Ownership Interests
An S corporation is the same as a C corporation from the standpoint of transferability of ownership interests. But there are limitations on the types and number of persons that may hold stock of an S corporation. If stock of an S corporation is transferred to a person other than an individual (who is not a nonresident alien), estate, or trust qualified to hold S corporation stock, or if a transfer results in stock being held by more than 100 shareholders, the S corporation election will be terminated. Consequently, S corporations typically have in effect buy-sell agreements or other arrangements that restrict transfers of stock that would cause termination of the S corporation election.
The same securities law and control issues that affect the transferability of stock of C corporations also affect S corporations. As with a C corporation, an S corporation's existence that is not affected by the death, dissolution, incapacity, or bankruptcy of a shareholder, although its S corporation election could be jeopardized if stock ends up in the hands of a person who is not qualified to be an S corporation shareholder. The existence of an S corporation, like a C corporation, is not affected by the resignation of an officer or director.
Organizational and Maintenance Costs
An S corporation the same as a C corporation from the standpoint of the formalities required for creating and operating the corporation. The only difference between an S corporation and a C corporation in this regard relates to income tax return filing requirements. An S corporation must file an information return for federal income tax purposes even though its income or losses are passed through and taxed to its shareholders, whereas a C corporation files its own income tax return and pays tax on its own income. For state income tax purposes, an S corporation may be treated as a pass-through entity or may be treated the same way as a C corporation.
A corporation can avoid the double taxes that are imposed on profits of a C corporation if the corporation elects to be taxed as an S corporation. An S corporation is taxed something like a partnership. The corporation files an information return for federal income tax purposes, but its income or loss is passed through and is taxed to the shareholders of the corporation. The deduction of losses by S corporation shareholders is subject to the passive loss limitations and at risk rules.
As with a limited liability company (LLC), an S corporation combines limited liability with pass-through income tax treatment. The taxation of S corporations and limited liability companies is, however, not the same in all respects. An LLC with more than one member is taxed as a partnership and therefore provides three tax advantages not shared by S corporations:
On the other hand, S corporations can provide employment tax advantages. Shareholders are subject to FICA tax only on salaries or other compensation paid to them—undistributed S corporation income and dividends paid by S corporations are not subject to employment tax. In contrast, each member of an LLC who is an individual must, in most cases, pay self-employment tax each year on his or her share of the LLC's income, whether or not the income is distributed to the member. The only members who are exempted are those in manager managed LLCs who do not materially participate in the business of their LLCs.
An S corporation can also provide favorable tax treatment in connection with the development and sale of real property. If a shareholder sells undeveloped property to an S corporation, the shareholder will recognize capital gain or loss. If the corporation develops and then sells the property, the incremental increase in value created by the corporation's development services will generate ordinary income that will pass through and be taxed to the shareholder of the corporation. But the shareholder will not be subject to employment taxes on the income, except to the extent it is distributed in the form of compensation.
If a partner or member sells development property to a partnership or LLC, any gain realized will be ordinary income under I.R.C. § 707(b) if the person owns more than 50% of the capital or profit interests in the purchasing entity. Moreover, the person will be subject to self-employment tax on any income realized on the development of the property. Consequently, the after-tax return realized by the original owner from the sale, development, and resale of the property will not be as great with an LLC as it would be with an S corporation.
It should be noted that the problem of double taxation of C corporation's gains on sales of assets is not solved by having the corporation make an S corporation election. If a C corporation makes an S corporation election in anticipation of a proposed sale, it will be subject to built-in gains tax, which results in double tax at the highest rates. If the corporation is already an S corporation, there will not be a double tax on property distributions. There will, however, be a single tax.
The inability to withdraw assets from an S corporation without tax prevents business organized in this form from being converted to other forms of entity, such as limited liability companies without tax consequences. On the other hand, rearrangement of the corporate structure or ownership of a S corporation may be possible through several types of tax-free reorganizations so long as the assets remain in corporate solution.