Saturday, November 21, 2015

Copyrights: Why it pays to have your copyright registered with the U.S. Copyright Office


A "copyright" is a type of protection that the law gives to original works of authorship, and it is available for published and unpublished works.  Technically, a "copyright" is the right to reproduce copies; however, the Copyright Act gives authors of original works many more rights, such as enabling authors to do or authorize (i.e. license) others to do the following things with their copyrighted works:

-          Reproduce copies
-          Distribute copies to the pubic (such as selling, renting, leasing, or lending)
-          Prepare derivative works
-          Perform the work in public (audio-visual works), and/or transmit the work via digital audio transmissions
-          Publicly display the work

Copyright protection arises once a work has been created in a fixed medium.  Works that exist only in your head aren't protected by copyright law; however, once you write your story, paint your picture, take a photograph, or record your music – it's protected regardless of whether you have published it.

However, in order to secure the full panoply of remedies afforded by the Copyright Act, it greatly benefits authors to register their works with the U.S. Copyright Office

So, what's the benefit of registering your work?

  1. You won't have to register it before you sue the infringer.  That's right, the doors to the federal courthouse are closed to unregistered works of U.S. origin.  
  2. A public record of your claim.  If you're calling "dibs" on a particular work, it sure helps to have proof of when you first called "dibs."  And, if your copyright has been registered before or within 5 years of publication, you have strong evidence (a/k/a prima facie evidence) that your copyright is valid.  Essentially, you make your lawyer's job easier, and if you're paying them $300+ an hour to enforce your rights, the less time it takes for them to do so, the less expensive it will be for you.  
  3. And my personal favorites – statutory damages and attorney's fees.  Let's face it, paying your attorney $300+ an hour to litigate your meager but meritorious claim of $500 in actual damages just doesn't make financial sense.  It takes time to determine what your actual damages are and to prove how much they are in court.  But, by registering your copyright before someone infringes on it, you make it easier for your lawyer to prove your case and, frankly, you make your case that much more attractive to the lawyer you want to take your case.  Also, you won't have to go through the added trouble of having to register your copyright before bringing a lawsuit, because you already did it. 
There are several remedies available to authors seeking to enforce their copyrights against infringers.  However, statutory damages and attorney's fees are only available to registered works.  Why limit yourself by relying on a poor man's copyright

You can register your works at the U.S. Copyright Office at www.copyright.gov, and if you need help navigating the copyright registration process or enforcing your copyrights, you can contact me at (803) 404-6900.


Sunday, November 15, 2015

Donevant v. Town of Surfside Beach: The Public Policy Exception to South Carolina's At-Will Employment Doctrine

South Carolina, like many other states, adheres to the at-will employment doctrine, which allows an employer to terminate an employee for any reason or no reason at all.  "An at-will employee may be terminated at any time for any reason or for no reason, with or without cause." Barron v. Labor Finders of S.C., 393 S.C. 609, 614, 713 S.E.2d 634, 636 (2011).

One exception to the at-will employment doctrine is the public policy exception.  "Under the 'public policy exception' to the at-will employment doctrine, . . . an at-will employee has a cause of action in tort for wrongful termination where there is a retaliatory termination of the at-will employee in violation of a clear mandate of public policy."  Id., 393 S.C. at 614, 713 S.E.2d at 636-37.  "The public policy exception clearly applies in cases where either: (1) the employer requires the employee to violate the law, or (2) the reason for the employee's termination itself is a violation of criminal law."  Id., 393 S.C. at 614, 713 S.E.2d at 637.  Although the public policy exception is not limited to these situations, South Carolina's supreme court has not specifically recognized the exception's application in other situations.  See Taghivand v. Rite Aid Corp., 411 S.C. 240, 243, 768 S.E.2d 385, 387 (2015).

In Donevant v. Town of Surfside Beach, Op. No. 5345 (S.C. Ct. App. filed Aug. 26, 2015), the South Carolina Court of Appeals held the trial court did not err in submitting Donevant's wrongful termination claim to the jury.  Donevant worked for the Town as its building official.  As the town's building official, she was required by law (a town ordinance that adopted portions of the International Building Code) to issue stop-work orders when, for instance, construction in the town is commenced without a permit. A building official who fails to issue a stop-work order upon determining a violation of the law can be disciplined by the State's licensing authority.  Donevant asserted she was fired in violation of public policy for issuing a stop-work order on a construction project that did not have a construction permit.  The jury found in favor of Donevant on her claim of retaliatory discharge.

On appeal, the Town asserted the trial court improperly submitted Donevant's claim to the jury because she was not subject to a criminal penalty.  The Court of Appeals disagreed, noting South Carolina case law examining the public policy exception did not require a criminal punishment; rather, the exception is triggered when an employer requires an employee to violate the law.  See Barron, 393 S.C. at 614, 713 S.E.2d at 637.

The Town also contended that because South Carolina's appellate courts had only previously applied the public policy exception to cases involving violations of criminal laws, the trial court should not have submitted Donevant's claim to the jury.  Noting the South Carolina Supreme Court's holding in Barron, which overruled the Court of Appeal's prior opinion limiting the public policy exception to situations where the employer asks the employee to violate the law or the reason for the termination itself is a violation of criminal law,"  the Court of Appeals opted to take a more liberal approach to the public policy exception.  Accordingly, the court held the trial court did not err in denying the Town's motion for a directed verdict because Donevant was fired for refusing to violate the law.

Tracking the court's prior decision in Antley v. Shepherd, the court reasoned Donevant was the only official in the Town with the authority to issue a stop-work order.  This was unlike the situation in Antley, which did not provide the county tax assessor with the sole discretion to act.  Further, when Donevant saw a violation of the building code, the law gave her no discretion and she was required to enforce compliance with the building code.  In Antley, the county tax assessor was permitted to act, but the law did not mandate such action.  The Court of Appeals concluded that the situation with Donevant fell squarely within the public policy exception because she was required by her employer to violate a law, and when she refused to do so, she was fired.

Providing yet another reason to affirm the trial court submitting Donevant's case to the jury, the Court of Appeals also held that Donevant presented a cognizable claim that she was fired in violation of a clear mandate of public policy.  Examining provisions within Chapter 9 of Title 6 of the South Carolina Code, the Court of Appeals reasoned the General Assembly's use of the words "[t]he public policy of South Carolina" and the General Assembly's mandate that all municipalities enforce the building code, the Court of Appeals reasoned the General Assembly intended to make enforcement of the building code a public policy of this state.

A petition for rehearing is currently pending before the South Carolina Court of Appeals.  Check out C-Track for more details.  

Stay tuned for the Court of Appeals' decision addressing the petition for rehearing, and presumably, for a Petition for a Writ of Certiorari after that. 

Monday, September 7, 2015

Quit Demanding "Strict Proof" in Your Answers -- it's not a thing

Lemming (Lem-ing; noun):  A member of a crowd with no originality or voice of his own. One who speaks or repeats only what he has been told.  Source: Urban Dictionary

(source: Wikipedia)
Do you ever wonder why people do the things they do?  I do, especially when it comes to litigation-related matters.  With the benefit of e-filing in the U.S. District Courts, we now have the ability to see how other litigators approach certain issues.  Sometimes those approaches are creative, and sometimes ... well not so much.  

I frequently see attorneys do things that make me scratch my head.  One example of this is when an answer denies an allegation and then "demands strict proof thereof."  When I first saw such a thing, I thought, "Gosh, that Billy Bob sure knows what he's doing.  Strict proof, I bet ol' Billy Bob is really giving it to those plaintiffs.  I should probably save that for the next time I draft an answer."  


But seriously, what does demanding "strict proof" really mean, and why do lemmings attorneys keep slipping it into their responsive pleadings?  Does it somehow magically transform the burden of proof from a preponderance of the evidence to beyond a reasonable doubt?  Does it require a plaintiff to prove their case only via direct evidence?  If you don't add it to your answer, have you waived the ability to move for a directed verdict or argue the plaintiff has not met their burden of proof? 

Step 1:  Look at the Rules of Civil Procedure


Civil litigation in South Carolina's state courts is governed by the South Carolina Rules of Civil Procedure, which became effective July 1, 1985.  There are some idiosyncrasies, but by and large, South Carolina's Rules of Civil Procedure are the same as the Federal Rules of Civil Procedure.  The concept of "strict proof" does not appear anywhere in the text of the South Carolina or Federal Rules of Civil Procedure.  Nowhere.   

Rule 8 of the Rules of Civil Procedure provides us with the basic ground rules for drafting a responsive pleading/answer.  A defendant must admit or deny the allegations asserted against it by the plaintiff or the allegations not responded to are deemed admitted.  If a defendant has any affirmative defenses, the defendant must raise those in its answer.  Moreover, if the defendant has any counterclaims or cross-claims, those too must be raised in a defendant's answer. Rule 8 says nothing about demanding "strict proof."  

For something to appear in just about every answer I've read since becoming an attorney, one might think the Rules demanded it.  Nope.  

Step 2:  What does Case Law say?

In a post-Iqbal/Twombly world, those of us who litigate know that the Rules of Civil Procedure have been supplemented and explained by various cases. Just because the Rules don't mention a concept doesn't mean it doesn't exist.   

I initially thought the "strict proof" allegations were a relic of the old code-pleading system (pre-SCRCP).  That, however does not appear to be the case.  In Pegues v. Polson, 128 S.C. 456, 123 S.E. 8 (1924), South Carolina's Supreme Court, citing the applicable section of the Code of 1922, notes the defendant's demand for "strict proof" was manifestly insufficient as a denial.  

Judge Milton Shadur of the Northern District of Illinois has penned many orders addressing "basic pleading errors committed by defendants' lawyers who have failed to conform to the clear directives—or to the basic thrust—of the Federal Rules of Civil Procedure."  State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 277 (N.D. Ill. 2001).  One of these errors is defense counsel demanding "strict proof," which he notes is impermissible under the Federal Rules of Civil Procedure. 

Essentially, case law interpreting the Rules of Civil Procedure indicates the demands for "strict proof" in responsive pleadings are improper, unnecessary, and of no real effect.


If the Rules don't require it and case law doesn't demand it, then why do attorneys keep doing it? 

I can't really say why attorneys keep injecting their demands for "strict proof" into their responsive pleadings.  Maybe it looks good to clients?  Maybe its because the attorney saw it in an answer one day and thought, like I first did, that it was necessary to hold the plaintiff to his case.  Or, maybe, it is because the attorney does not know why they do the things they do. 

If that is the case, perhaps the appearance of demands for "strict proof" are red flags requiring more scrutiny.  Think of a demand for "strict proof" as being akin to Van Halen's brown M&M clause.