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Author Archives: Gordon Firemark

As the year nears a close, do these things to save money, time, hassle and risk.

First off, if you celebrate, let me wish you a Happy Hannukkah!

It's getting to be that time of year when we all sort of wrap up our work activities, and things start to slow down. 

That makes this a really good time to think about a few tasks that are best done before 2021 begins. 

The items below will save you money, time, hassles and legal risk, so think them over and let me know if you want some help getting them squared away.

1. Trademark Registration Fees Increase on January 1st.

So, if you've got a distinctive brand or title for your podcast, series, products, services, NOW is the best time to get the registration done. Preparing a trademark application properly does take a little bit of time, so act quickly… get your order in so you don't wind up paying more. More about Trademarks on the website here.​​

2. Register your DMCA Agent to preserve your “Safe Harbor” from copyright claims.If you operate an online service that allows visitors/users to submit content (even just comments and reviews), you'll need to implement a DMCA policy, and designate the person to whom complaints must be sent. If you do this correctly, it can save you from lawsuits. And best of all, you can do it yourself. The cost? A whopping $6. 

Click here to access the copyright office's DMCA Directory system where you can register. Prefer to have it done for you? As always, I'm glad to help you with this relatively easy and low-cost protection against copyright claims related to your online activities. If you have any questions, feel free to set up a quick call to discuss.

3. Get your (old and new) companies in orderFor some, this will mean closing up and dissolving older, unused 

corporations and LLCs . For others, just starting up, it means getting everything set for a January 2nd start date. I'm delighted to help with either task. Just reach out and let me know.​​

​4. Got a website? Get your customized Privacy Policy, Terms of Use and other site documents up to speed.

2021 will see some new, updated data privacy requirements implemented in California and Europe… so if your website has visitors from the Golden State or the EU, you'll need to make sure your website documents are in compliance. If your website documents weren't previously customized for your operations, it's necessary.  So let's take a look and see what kind of shape they're in.

This year, giving thanks is even more important!

Be Grateful, Give Thanks

Each year at this time, we give thanks for the people and experiences that have enriched our lives. But this year, with all that 2020 has dumped on us, I feel it's even more important to take time out to get in touch with gratitude and appreciation for the good things in our lives.

I hope you'll do the same, and share your feelings with friends and loved ones. It's remarkable how such a little thing can make you and them feel a little bit better. It's contagious. Viral, even (see what I did there?). This is the kind of thing that's WORTH spreading around. Let expressions of gratitude and thanks replace the hugs and kisses that we're missing out on this year.

Here are my thoughts on thankfulness and gratitude:

I'm grateful for:

  • My amazing wife for all she is and does
  • three incredible children. Strong of will, character and intellect, and full of joy and imagination. Watching them grow is one of life's greatest rewards!
  • Our 4 cats (Luke, Luna, Rue, and Pixie), and our dog, (Rosie)! for filling our house with unconditional love, attitude (cats, right?) chaos and fun.
Rosie
  • My father, from whom I'm still learning every day, even though he's been gone for 23 years.
  • My Mom, for everything. Just everything!
  • My sisters, brother-in-law, nephews, aunts, uncles, and cousins.
  • My friends, colleagues, co-workers and clients, and the opportunity to serve so many fun, interesting and creative people, in an industry an career I find simply fascinating.
  • The opportunity to share my knowledge, experience and what wisdom I've attained by teaching students from all walks of life.
  • The technology to make just about anything possible.
  • My early introduction to the field of online courses, memberships, distance-education. This has allowed me and my businesses to thrive through these very difficult times.
  • All of the abundance in my life
  • And most of all, I'm grateful for my health and that of my family, friends and loved ones.
  • Finally, I'm grateful for you, gentle reader!

I hope that you, too are healthy, happy, and able to find some things to be thankful for this holiday season. Please spread your gratitude.

Happy Thanksgiving!

Promoting your show with sweepstakes, contests and  lotteries

Promoting your show with sweepstakes, contests and lotteries

Running a contest or a giveaway is a brilliant, and cost-effective way to get your audience engaged and get fresh leads, drive lots of meaningful actions, Attract people to your content, get them to share it, and more. 

But it's important to exercise caution and make sure that you're complying with the relevant laws. You want to make sure that what you're doing, the kind of promotion, whether it's a contest or a giveaway doesn't amount to an illegal lottery. 

How to stay legal with your contest or sweepstakes

A promotion will be considered an illegal lottery if it has all three of the following components, those are:  Consideration, an element of chance,  and a prize.

CONSIDERATION

Consideration refers to ways that people can essentially purchase their entry by some monetary or non-monetary action 

Monetary actions are ways that people enter that require them to make some kind of a financial contribution or payment, whether by purchasing a product or by buying an entry or a ticket or similar.

 Non-monetary actions are ways for people to enter promotions that require them to give up a significant amount of their time  other resources.  Things like having to fill out a  lengthy, complex survey making multiple visits to a store. 

These  non-monetary actions are often a gray area. So you'll want to avoid those if at all possible.

ELEMENT OF CHANCE

The element of chance is the fundamental difference between a contest and a sweepstakes. A sweepstakes is a luck-based promotion where the winners are chosen at random, such as by drawing a name out of a hat or, or a numbered ball from  a basket. 


Contests, on the other hand, are skill-based promotions where the winners are chosen on the basis of some kind of merit; they've entered a, a writing contest or a piece of artwork or, or engaged in challenge of some sort where skill, creativity, or effort is required.

In  most jurisdictions, it is permissible to require consideration for entry into a contest, where the winners are chosen on some merit based criteria and not randomly, 

PRIZE

A prize is the value that the winner of the contest or sweepstakes receives when they are identified as the winner. Normally, even a minimal value is enough to constitute a prize for the purposes of the illegal lottery analysis.

 

So, in order to avoid having your promotion classified as an illegal lottery, it must exclude one of these elements.      Sweepstakes (prize drawings and giveaways) typically exclude a requirement of consideration, while contests exclude the element of chance.

OTHER REGULATIONS ON SWEEPSTAKES AND CONTESTS

In the United States, there are other important laws and regulations to consider.  These may require some kind of a free alternative means of entry. If you're going to allow people to enter sweepstakes with a purchase, you should also make a way for them to enter without buying anything. But beware.  If you require submission of a name and an email address or a phone number or other personal identifying information, you also need to be aware of privacy laws that regulate the collection of that kind of data. 

Regulations may also require that the sponsor of a promotion:

  • Announce the opening and closing dates for entries
  • Disclose when and how winners will be selected.
  • Publish the rules of the contest or sweepstakes (this is a good idea even if not required in your jurisdiction, so that there's transparency about what's going on. 
  • Announce when the prizes will actually be awarded. 
  • Contact all the winning entrants.  And in some jurisdictions
  • Publish or post  the names of all the winners. 

PRIZES MUST ACTUALLY BE AWARDED

Finally, you need to follow through on all the prizes.  Running a contest, or a sweepstakes does form a binding contract with the entrance. The rules are binding and the obligation to select a winner and actually furnished. The prizes are binding contractual promises as well. And breach in this kind of situation could very easily be considered a fraud, which can have both civil and criminal consequences.

JURISDICTIONAL VARIANTS

There are a few U.S. state by state variations  to the  above-referenced general rules. For example:

  • Tobacco related promotions are not permitted in the States of Massachusetts, Michigan, and Virginia.
  • In Texas. It is against the law to automatically enter purchasers in a contest or a sweepstakes when the prizes have a value in excess of $50,000.
    (And you'll also want to be aware of other state and international privacy regulations that can make automatic entry. Illegal.) 
  • Several States require registration of your promotion.
    • in Florida, a sweepstakes having prizes over $5,000 has to be registered seven days before the promotion begins.
    • in New York. You have to post a bond and register 30 days before the promotion begins if  it's over $5,000.  
    • In Rhode Island, if the prize pool is over $500, you have to register. (This only seems to apply to retail stores that run sweepstakes and contests, but it’s important to verify, as such rules change frequently)
    • Publication of the winners is required in the state of New York, where you have to post a list of winners. In most States, if you're running a contest where some skill or merit is involved in being selected as a winner, it is okay to require a purchase.

Some states do not permit any purchase requirement, even for contests. And that purchase requirement might actually apply to  any form of consideration. 

Those States are:

  • Colorado, 
  • Maryland, 
  • Michigan (where even a visit to a store requirement can be considered consideration), 
  • Nebraska, 
  • North Dakota, 
  • Vermont, and 
  • Virginia (which also treats a store visit as consideration required)

 And in Tennessee, it is illegal to require entrance to grant a publicity release “in perpetuity”. (Presumably a “reasonable amount of time” might be permissible, but this requires further inquiry).

In other States like California and Indiana with strong property rights in name, likeness and so on, such a release might also be treated as valuable consideration, so caution is advised.

CONCLUSION

The bottom line is running a contest or giveaway is a great way to get an audience engaged, generate leads and get your audience to help you promote and grow your business or program. But you do have some legal requirements to comply with. 

Be sure to check with your lawyer before you launch anything that might be considered an illegal lottery.

Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?

Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?

The scenario An actor client today told me that she’s been asked to sign a document before coming to work on a new project. The waiver expresses all kinds of new protocols for minimizing disease transmission on and around the set, but then it goes on to include a waiver, stating that she understands that… Continue Reading

Achieve More, Better, Faster

As you know, I love to help creatives and business folk in all fields… film, tv, theatre, podcasting, online/digital business, or whatever, to forge their paths forward to bigger, better, accomplishments, as quickly as you can imagine. I do this through: One-on-one coaching (sign up for a discovery call to learn how this works​https://firemark.as.me/Discover) Group Coaching (click… Continue Reading

Resources to help during Covid-19 Crisis

(no, I don’t have a secret resource for T.P.) But here are a few useful links.: ​The Freelancer’s Guide to The CARES Act: New Funds and Benefits (from my friend and client Abbey Woodcock) ​What freelancers need to know about the coronavirus​ ​Where entertainment industry workers can go for help (LA Times) ​Financial Help for Hollywood workers (Variety.com)… Continue Reading

A new look at the old standard: “Force Majeure” clauses

With Covid-19/Coronavirus causing cancellation of events and transactions around the globe, people are naturally looking at whether they must still perform their contractual obligations and whether they are entitled to refunds of deposits and advance payments they’ve made. Most contracts do include a so-called “force majeure” clause as part of what’s usually considered the boilerplate.… Continue Reading

Has AB5 affected you yet?

Earlier today, I had a call from the HR director at one of the colleges where I teach one night a week. She called to tell me that I can no longer be classified as an independent contractor, and that under California’s new law, AB5, I must be treated as an employee. OK. No big… Continue Reading

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