“PLEASE RELEASE ME (LET ME GO)”

Decato Law Office
Written by Attorney William A. Whitten.
 

The original lyrics were written by Eddie Miller and subsequently recorded by various artists, such as Little Esther Phillips, Jim Reeves and Englebert Humperdink. In the music industry it is a haunting melody and a plea to be released from the bonds of romance. In the law, “please release me”  has an entirely different meaning.
 
Most people over a certain age are familiar with legal releases and no doubt have signed releases, without giving it much thought. Often, it involves engaging in what some people consider dangerous activities. If you choose to skydive, SCUBA dive, race cars, mountain climb, etc., the sponsor of the activity will often have the prospective participant sign a “release” before allowing them to participate in the activity.

  I remember reading a release on the back of the admission ticket to a Dartmouth hockey game. There was general language about pucks leaving the ice and the chance of being injured by a flying puck. I do not recall if the Red Sox put a similar “release” on the backs of their tickets, with respect to foul balls, leaving the playing field.
    If a person actually reads and signs a release and is subsequently injured in the activity the question arises as to whether or not the release is valid and can prevent a law suit, or at least stop a law suit. The answer is, it depends. In strict legal terms a release is known as an “exculpatory contract.”
 
  The New Hampshire Supreme Court has issued various rulings on the validity of the releases. One oft cited case is Barnes vs. New Hampshire Karting , Inc., 128 N.H. 102 (1986). In Barnes the court upheld the validity of a “pit pass.” The injured person sued the owner of the race track, when he was injured in a collision on the race track. The key issue was the language at the top of the pit pass, which said “THE HOLDER ACKNOWLEDGES SIGNING WAIVER & RELEASE FROM LIABILITY BEFORE ENTERING THE TRACK AREA.”

The body of the release contained extensive language releasing the track owner from responsibility, in the event of injury. Even though the injured person said that the release had not been read by him, or to him, the release was upheld. The court did note that in certain situations involving special relationships, such as  a common carrier (i.e buses) , innkeepers, or certain public policy considerations, the releases would not be upheld. That logic did not help the injured party in Barnes.

  Generally speaking the language of a release has to be clearly set forth, conspicuous, readable and unambiguous. The purpose of the release is to excuse (release) someone from an act of alleged negligence. Of course, whether the language is conspicuous and unambiguous is often litigated. 

   If you are the party who is injured after signing a release, you may wish to consult with an attorney in an effort to determine if the release is valid. More likely than not, the person(s) who you may think were responsible for your injury, will contact their insurance company. The insurance company  will investigate and most probably will use the release as exhibit A and deny your claim. This does not mean your claim is not valid, it means there is a lot of work to do.
 
 If you are the person who may have a chance of being sued, it is better to have a release signed. It gives you some ammunition to possibly defeat the claim. The best option is to have adequate insurance to protect yourself and your business.

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Fair Use in the Trades

 By Attorney J. Justin Lancaster:

Many artists simply put their name on a painting.  A person who creates an original work, automatically owns rights to that work under the common law, which is owned for life (and 50 longer) if not earlier sold or yielded to another.  The (c) symbol, or ©, stands for "copyright.  The copyright symbol demonstrates an assertion as to ownership; but, it’s enough simply to identify oneself as the author, e.g., “All rights reserved, Justin Lancaster, 2011.”  Authors own their copyrights even if they don’t claim them with symbols.

At Decato Law Office™, we are often asked about the ©, ™, sM and ® symbols used to designate copyright and trademarks.  On many web sites you'll see something like "© 2011. Decato Law Office."  A corporation can own a copyright if the work was produced “for hire.”  You can register your copyright with the government Copyright Office, which puts the world on official notice of your claimed ownership, so that if your rights are infringed you have any easier time bringing a claim to stop the infringement and to collect damages and penalties.
A trademark is your name, slogan or brand that you use in commerce.  Under common law you own it within your market, if you got there first.  But, if you don’t tell people it’s your trademark with the (tm) or ™ symbols, then your rights are weakened.  A slogan is sometimes designated as a service mark, sM  or (sm). 

In most states, including the states of VT and NH, it helps to register your trademarks (and/or trade names).
Similar to a copyright registration, a federal trademark registration officially notices your ownership and makes it easier to fight infringement and recover damages.  The ® symbol is used following federal registration (but not for registration at only the state level).
You probably recognize the trademark "VERMONT MAID®."  It was first registered in 1920, by the Vermont Maple Syrup Company, Inc., in Essex Junction, VT.  But who owns that trademark now?  If you track it down, you'll find this brand is now parked solidly on "http://bgfoods.com", where you will be urged to follow the marketing on Twitter® and become a fan on Facebook®.  And at the bottom of that web page you'll note the line "© 2011 - B&G Foods, Inc. All Rights Reserved."  Dig into that web site just a little bit more, and click on "Terms & Conditions,” and find the following paragraph:      
"Copyright, Trademark, and Related Issues: This site belongs to B&G Foods ("B&G Foods").  The copyright to the contents of this site is owned by B&G Foods or other third parties who have licensed its use to B&G Foods, Inc.  Users may download material from this site for their own personal, non-commercial use only, and provided all copyright notices are kept intact. Any other copying, redistributing, or publishing of any part of this site in any manner is prohibited, unless expressly permitted herein."
Whoops! Am I violating B&G’s copyright by publishing a part of their web site in this newsletter?  Isn't my use here potentially connected to Decato Law Office's commercial interest?  That leads us to a very important limitation in copyright law, called the Fair Use Doctrine.
  
The doctrine of Fair Use has developed through a substantial number of court decisions over the years and has been codified in § 107-118 of the copyright law, found in Title 17 of the U.S. Code.  17 USC §107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.  The law also sets out four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work.
The distinction between fair use and infringement can be hard to draw.  There is no specific number of words or lines of text, or notes of music that may safely be taken without permission.  And acknowledging the source of the copyrighted material does not substitute for obtaining permission" (see  http://www.copyright.gov/fls/fl102.html )

So, why do I think my excerpt of the above material from B&G Foods, Inc. constitutes "fair use"?  Because, although some of you reading this may have been our commercial customers, the primary purpose of this communication is comment and education.  The nature of the excerpted text from the B&G web site is a legal notice that I'm showing you as an example in a free newsletter.  Compared to the entire text of the B&G web page, or their entire web site, I have used only a small amount of the text.  And most importantly, I've not at all impacted the "potential market for, or value of" this copyrighted piece of text; B&G Foods, Inc. is not going to be negatively impacted in any way by my using this specific example.  I'm not disparaging the company or their products.
A good guideline in the area of Fair Use is “do unto others as you would have them do unto you.”  If I imagine myself to be the CEO of B&G Foods, or perhaps their Web Master, would I care much about this particular snippet of text being used by a lawyer in Lebanon, NH?  Not likely.
You can see, though, where issues of Fair Use become more difficult to resolve so clearly.  How much of a textbook can a high school teacher photocopy and pass around to pupils before buying them all a copy of the textbook?  Does it matter that this is a public, nonprofit, educational use?  Actually, the answer is "it depends" and "a little".  The market for textbooks is use of the copyrighted material by students.  Where a teacher may be OK copying one picture, or one page, it is likely not Fair Use to copy and distribute whole chapters.
The Register of Copyrights has offered some examples of activities that courts have regarded as Fair Use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
                                              
© 2011, Decato™ Law Office          Trials & Transactions sM           
    “That’s exactly what we do sM”

DECATO LAW OFFICE ●  367  ROUTE 120  ● UNIT A 1 ●  LEBANON NH 03766 ●  TEL NO  603-640-2020  ● www.decatolaw.com

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