Copyright Office Guidance on Digital Learning, First Sale and Fair Use

There is perhaps no legal issue that is more “front of mind” and also more obtuse that whether or not a teacher can broadcast or publish a textbook or other copyrighted article over their distance learning technology. On May 15, 2020, the Copyright Office in Washington, DC issued a 22-page letter (Click here to read a copy: 20200515-senudall-response-national-emergency-library ) which addresses these issues — the sheer length of the document tells you that this is not a topic for the faint of heart, or even a non-lawyer.

Importantly, the Office points out the application of the 2002 Technology, Education, and Copyright Harmonization Act (“TEACH”) act which explicitly allows the use of copyrighted materials when used for distance learning”

“pursuant to the TEACH Act, if a school district meets the requirements, an elementary school teacher may display a picture book heis reading in a video to be viewed by all students in his class because it is typical for elementary school teachers in live classroom settings to display all pages of a picture book. Likewise, a university professor may digitally display limited movie clips to illustrate a particular concept relating to a course, just as she would do in a live setting,if the university meets the requirements of the TEACH Act.”

(See Pages 6-7 of the Guidance.) Of course, those “requirements” are not so simple for laypersons to easily understand.   Those requirements also are subject to judicial evaluation, or evaluation by a jury.  (See (Los Angeles Times, April 1, 2020, Appeals Court Rules for Choir Teacher)

The main purpose of this lengthy letter was to chide the Internet Archive for failing to contact copyright owners before releasing thousands of documents in the “National Emergency Library”.   The Copyright Office seems to approve how the Internet Archive is stepping back from the massive release of material.  While it fails to give a simple roadmap to educators for going forward, but it does give many examples of cases and expert thinking as to what can and cannot be done.

If you are an educator and you are uncertain as to whether or not your online materials meet the requirements, contact the Shining Law Firm so we can walk you through the elements needed to comply.

Los Angeles Courts Closed Effective 3/17/2020 for Covid-19 Protection

The Presiding Judge of the largest court system in the United States just released the attached order.  It is completely unprecedented, extending statutes of limitation, continuing trial dates and appearances but allowing many emergency services to proceed.  Attorneys will be parsing this over clearly, but the courts are literally closed on March 16-19, 2020 as if there is a court holiday.  From March 20 through April 16, 2020, “all courtrooms will be closed for judicial business” except for time-sensitive, essential functions such as family law TROs, Probate ex partes, Search Warrants and Arraignments.  Contact your attorney or the courtroom immediately to learn exactly how this will effect you as a litigant.


What is A Life Story Really Worth?

One of the first rules of scriptwriting is to write about your own experiences.  One of the second rules of scriptwriting is to ask whether or not anyone would be interested in your own experiences.  For some people, the third question is really what is the story of my life worth?

Famous people have had a spotted record protecting their own likenesses from being stolen by movie makers (or as some might say, ‘fictionalized’).  “Hustlers”, the new movie starring Jennifer Lopez, unabashedly tells the story of Samantha Barbash, a real-life convicted hustler who ran a ring of female hustlers druggind and robbing rich men in Las Vegas.  Barbash claims that she was offered only $6000.00 for her life story, which she turned down as offensive.  Now that the movie has grossed over $150,000,000, she has brought suit against the movie producers SFX who say that they are entitled to use famous people’s lives and fictionalize them.

If Barbash had brought her lawsuit in California, she could relied on California’s broad “right of publicity” (C.C. Sec. 3344)   This law was created after a California court refused to give the family of Bela Lugosi, the famed movie vampire, rights in his famous persona (“I want to drink your blood”…) after his death in the 1970s.  These laws date back many decades, but have only been formalized in recent years.  New York and many other states now finally have similar laws to California — New York’s was passed in only in 2000 ( (NY CVR § 50)

But even then the law may not be so good for Barbash.  In 1992, Wheel of Fortune spinner Vanna White’s sued Samsung for using a robot cartoon character in one of its ads.  The cartoon was obviously designed to evoke Vanna’s internationally famed image as a glamorous model.  The cartoon character had a blond flipped wig, jewelery and a fashion gown standing next to an upright roulette-type wheel.  However, this wasn’t enough.  The Ninth Circuit didn’t care how much the cartoon looked like Vanna — it felt that no person could have reasonably believed that the cartoon meant that Vanna was endorsing Samsung products.   In short, the law wouldn’t stretch far enough to cover someone’s likeness.

In other cases, famed actress Olivia de Havilland, the man whose life was the basis of The Hurt Locker and the man whose life was the basis for the Wolf of Wall Street have all lost claims like those Barbash is making.

The moral of the story?  Get your story out there first.  Write your life down and file it as a movie treatment with the Writers Guild of America.   It will be a tough battle, and there is a good deal of law against you.  So make it interesting and get to work!  If you need help in working through these issues and protecting your rights, call the Shining Law Firm right away to get started.

Background reading:

About Us

The Shining Law Firm and Carolin K. Shining provide high quality, big firm service with individual attention.  Ms. Shining has been a registered patent attorney since 1990, and has worked with both Fortune 500 companies, solo inventors and everything in between.  With a biochemistry background and U.S. Patent Registration No. 35098, she has long excelled in representing individual inventors and high tech companies.  Read more about her at

2020 Legal Battlegrounds: Fights are Brewing on AB 5 and CA Contractors

Attorneys across California are debating the constitutionality of “AB 5”, a statute designed to radically change what happens to California companies who employ independent contractors.  The implications of the law, now found at California Labor Code Section 2750.3 et seq.) are massive:  companies who employ independent contractors in many sectors may be required to give those contractors in essence the benefits of regular employees.  These changes are designed to force employers to hire persons as regular employees.  Numerous exemptions are contained in the law, mostly adopted as truly last-minute midnight legislative changes.

Several majority industry groups who requested exemptions had those requested denied — this famously included “gig economy” ride-sharing companies such as Uber and Lyft.  Calling themselves “app-based platforms”, Uber and Lyft have thrown the constitutional book at AB 5 in Olson et al. v. State of California, Central District of California Case No. 2:19-cv-10956 (December 31, 2019).  Uber and Postmates challenge this law under the Equal Protection Clause (page 35), Due Process (right to pursue a chosen occupation), the 9th Amendment (the enumeration clause, a largely forgotten part of the Constitution alleging protection of undefined “certain rights” and the “Contracts Clause” (state laws cannot infringe on private contracts).

The history of AB 5 is documented blow-by-blow in the Complaint – read the entire complaint here:

20191230 uber complaint copy courtesy of shining law firm document

One group that was denied an exemption at the last moment was surprisingly journalist and free-lance reporters.  Widely believing that they would get an exemption, this discussion was largely ignored in the print media before AB 5 was adopted.  Through the American Society of Journalists and Authors, Inc. et al. v. Becerra,  Central District of California Case No. 2:19-cv-10645 (Dec. 17, 2019), journalists also alleged numerous constitutional violations:

20191217 journalist ab5 complaint courtesy of shining law firm

So what is next for businesses?  The journalists’ lawyers have already moved for a preliminary injunction — something with a very high burden to meet when the stakes are “mere money”.  A hearing on this is not set until March 9, 2020 before the Hon. Philip S. Gutierrez.   Expect a major battle and stay tuned to this website for real factual uploads of the pleadings and the facts.

20191217 journalist ab5 motion for preliminary injunction courtesy of shining law firm

Contractor or employee: Post-Dynamex Confusion Reigns

On Friday, September 18, 2019, the biggest change in employment law in many decades across the country was signed into law by Gov. Gavin Newsom.  With nary a sound in the major news outlets, this law is poised to up-end the job classifications for tens of thousands of average Californians.  At the last minute, fifty industries were given sweeping exemptions, demonstrating who still wields real power in Sacramento in this Democratic super-supermajority legislature.

The key to the new law is the third prong of the new three-part test:  Is the employee working in the same field as their employer?  For example, many lawyers work as “contract” lawyers for law firms, giving them flexibility but also lower salaries.  Likewise, some doctors work on contracts the same way.  Construction outfits also hire contractors — but plumbing companies cannot hire plumbers on

So of course, some of the people who can still use the contract employee, law firms, accountancies, doctors, are no surprise.  Others, such as strippers, Rabbis and fishermen seem odd but won’t impact too many Californians.

One industry group that can still hire “contractors” is a big big surprise — building construction firms are exempt.   More and more construction firms are using laborers as contract employees, pushing down workers compensation liablities to the lowest common denominator and the persons who can afford it the least.

Sadly, the court in Dynamex was hailed as providing a simple, three-step test to clarify and strengthen workers’ rights.  This new bill remains full of gaps, loopholes and weaknesses.  Both sides will claim victory, and the big “gig economy” players have been promised that “we’ll still consider a carve out for you also.”

For federal cases and the majority of the country, the twenty-party IRS test still remains — but with 50 carve-outs and new vague language, how much has really changed remains to be seen? Some people may see massive changes, corporate restructuring, new hires and job reclassifications.  Some people may have to sue to get the Dynamex test applied to them.  Uber and Lyft have been promised continued potential carve-outs.  So while everyone in Sacramento pats themselves on the back, AB 5 is certain to do one thing:  create decades of litigation over the same old same old: are you a contractor or an employee?

Formal handshake deals are the new contracts?

A recent article in the Harvard Business Review actually argues that handshake deals should replace written contracts.   “Relational contracts that rely on parties’ making choices in their mutual self-interest are nothing new, of course. The benefits of informal “handshake” deals have been studied and promoted over the decades…”  HBR admits that the basic contract is not going away:  “Some relationships, such as those involving the purchase of commodity products and services, are truly transactional and only need traditional contracts.”  But some of these new ideas may be useful as small businesses work on building networks and relationships in today’s challenging marketplaces. If you are a small business person looking for cost-effective legal advice on contracts and negotiations, call Carolin Shining for unique approaches and one-on-one service:

Actress de Havilland’s Lawsuit Rejected: “Don’t Put Words in My Mouth” Now Completely Toothless

At the age of 102, the famed actress Olivia de Havilland has continued to fight for her rights against the entertainment industry.  Unfortunately today the U.S. Supreme Court refused to reinstate her lawsuit against the makers of FX’s Feud: Bette and Joan.  Ms. de Havilland asserted that this show’s exceedingly unflattering portrayal of her was defamatory and demeaning.  Using a very specialized California free speech law designed to nip defamation lawsuits in the bud, Ms. de Havilland’s lawsuit was upheld by the trial court, but then thrown out at the appellate level.  Appeals to the California Supreme Court and now the U.S. Supreme Court have been futile.

Despite her loss, kudos should go to a woman who fought the studios as a young actress, and who has kept up a good fight to the bitter end.

The question now is whether or not this is sets a bad precedent for famous figures who are portrayed in an extremely negative light.   Putting words in someone’s mouth may become an approved means for creating a stir to gin up the ratings.  These cases turn on facts, so it remains to be seen how this will impact future bad actors.