The post Publicly Available Does Not Mean Public Domain: Why You Cannot Freely Copy Everything on The Internet appeared first on HunterMaclean.
]]>The start of a new year often brings discussion of the “public domain,” because in the United States on January 1 (or Public Domain Day) artistic creations with an expiring copyright term become available for the public to copy, share, and adapt. Often people use “publicly available” and “public domain” interchangeably, believing these words have the same meaning. Not only is this incorrect, but this misconception can have serious consequences for the uninformed.
In the case of artistic creations, the term “public domain” generally refers to content not protected by copyright law. The U.S. Copyright Act protects original works of authorship, including literary, dramatic, musical, and artistic works, that are fixed in a tangible medium of expression. Something that is not original (e.g., facts) or not fixed (e.g., an unrecorded speech) is not eligible for copyright protection. Unless protected by some other law, works not eligible for copyright protection are in the public domain.
Even works eligible for copyright protection are not protected forever. Generally speaking, for works created after January 1, 1978, the copyright term is for the life of the author plus 70 years. Once a copyright term expires, an artistic creation that was previously protected enters the public domain, just as the thousands of copyrighted works from 1928 did on January 1 of this year. For the first time since their creation, these films, musical compositions, plays, books, etc. are free for all to adapt, copy, perform, and share.
During the copyright term, a copyright owner has the exclusive right to reproduce, adapt, distribute, perform, and display the protected work. With only limited exceptions, anyone other than the owner who reproduces, adapts, distributes, performs, or displays a copyrighted work without permission can be liable for copyright infringement.
Easily the most anticipated and widely discussed artistic creation entering the public domain in 2024 is Disney’s Steamboat Willie, the animated short film that introduced the world to Mickey and Minnie Mouse. Disney made Steamboat Willie publicly available for all to watch on YouTube many years before the film entered the public domain. However, artistic content published on YouTube (or elsewhere on the internet) is still subject to the owner’s exclusive copyrights. In other words, until the copyright expired on January 1, 2024, Disney maintained the exclusive right to copy, share, or build upon that film and the characters in it, even though the film was on the internet.* Anyone violating Disney’s exclusive rights in Steamboat Willie before January 1 could have been liable for copyright infringement.
The same is true for many images, videos, and songs that are available on the internet but not in the public domain. A person who copies content from the internet and uses it on a website or social media without authorization from the copyright owner may be liable for copyright infringement. Increasingly, copyright owners are aggressively policing use of their works on the internet and routinely demanding payment or filing lawsuits to address unauthorized use of their artistic creations.
Determining whether a work is in the public domain or, if not, whether you may nevertheless copy it from the internet often requires a complex factual and legal analysis. The best practice is not to copy content from the internet unless you created it or have obtained a valid license. Businesses should be sure employees and contractors understand and follow this best practice, because even innocent copyright infringement can cause the business harm.
Anyone receiving a copyright infringement demand letter or threat of suit should not ignore such a letter. Instead, an experienced copyright attorney should be promptly consulted to assist with a response.
*Even after 2024, Mickey and Minnie are not freely co-opted by the masses, thanks to other copyrighted works and trademarks owned by Disney. The limits of free access to the Steamboat Willie version of Mickey and Minnie Mouse are outside of the scope of this article, but will surely be tested in the near future.
Rachel Young Fields is a partner at HunterMaclean, where she specializes in copyright and trademark law. She can be reached at (912)236.0216 or rfields@huntermaclean.com.
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]]>The post Important Information Regarding Corporate Transparency Act that May Require Action in 2024 appeared first on HunterMaclean.
]]>There is a new regulation under the federal Corporate Transparency Act (CTA) that, for the first time, will require disclosure of information about all corporations, limited liability companies and limited partnerships (unless exempt), as well as personal information about their beneficial owners and the persons who form those entities. This requirement is effective on January 1, 2024, for all such entities unless otherwise exempt by the regulation.
HunterMaclean can assist you in determining which of your entities are subject to this new regulation and which may be exempt. We can also assist you in making the necessary filings when required. Please contact one of your primary HunterMaclean attorneys, and that attorney can connect you to the appropriate Firm attorneys to assist you. For general questions about the CTA, contact us at cta@huntermaclean.com.
Set forth below, in question and answer format, is a summary of the CTA regulation, the types of entities that are exempt, and the filing requirements. Further details and guides and can be found at FinCEN’s website, including the pages on Beneficial Ownership Information and Small Business Resources.
1. What is the CTA?
The CTA is a component of the Anti-Money Laundering Act of 2020. It was enacted to prevent money laundering, terrorist financing, and other illicit activities. The CTA is the most impactful piece of federal legislation affecting businesses since the U.S. Securities Laws from the 1930s.
2. When does the CTA take effect?
The CTA takes effect on January 1, 2024.
3. In a nutshell, what is required by the CTA?
The CTA requires businesses (mostly smaller, unregulated businesses) to disclose certain information to the federal government regarding the business and its owners. The CTA will apply to many businesses. It is estimated that 32.6 million entities will have to comply with the CTA in 2024.
4. How is the information disclosed?
Information will be disclosed on a report called the Beneficial Ownership Information (BOI) report. The BOI report lays out in personal detail who owns a business (i.e., this report will contain personal identifying information about a company’s beneficial owners). Entities that are required to file a BOI report are called “reporting companies.”
5. Where and how is the BOI report filed?
The BOI report is filed with FinCEN—the U.S. Department of Treasury’s Financial Crimes Enforcement Network. This is an electronic reporting system referred to as “BOSS.”
6. Does my business need to file a BOI report?
The requirement is far-reaching, and it’s not always clear which entity must file. In general, all corporations and limited liability companies formed in the United States will have to file a BOI report, unless they qualify for an exemption. Even though not specifically mentioned in the CTA, it is likely that all limited partnerships and limited liability partnerships formed in the United States will have to file a BOI report, unless they qualify for an exemption.
7. What are the exemptions?
There are 23 categories of entities that are exempt. Most are for entities that are already subject to close federal or state regulation and thus already must disclose their beneficial ownership information to the government. Examples include publicly traded companies and other entities that file reports under the Securities Exchange Act; financial institutions (banks, credit unions); public accounting firms; insurance companies; tax-exempt entities, including 501(c) nonprofits; and subsidiaries that are controlled or wholly owned, directly or indirectly, by exempt entities.
8. Is there an exemption for large companies?
Yes, there is an exemption for so-called “large operating companies.” Those are companies that (1) employ more than 20 full-time employees in the United States, (2) operate at a physical office (owned or leased) in the United States, and (3) have filed a federal tax return for the previous year reporting gross receipts or sales of more than $5 million.
9. Is there an exemption for entities that are not active?
Inactive entities (e.g., those listed as “inactive” with the Secretary of State of the state of formation) that were formed prior to January 1, 2020, are not required to file a BOI report.
10. Who must provide information on the BOI report?
“Beneficial owners” must provide information.
A “beneficial owner” is an individual who, directly or indirectly, either (1) exercises substantial control over a reporting company or (2) owns or controls at least 25% of the ownership interests of a reporting company. Substantial control can be exercised by an individual who is a senior officer, who has authority to appoint or remove a senior officer, or who can direct or make substantial decisions over important matters.
Beneficial ownership includes direct and indirect interests and joint ownership of any undivided interests. If an entity is owned by a trust, the beneficial owner could be the Grantor or Settlor of the trust who has a right to revoke the trust or withdraw assets, the Trustee or person holding authority to dispose of trust assets, a sole beneficiary who is the recipient of income and principal, or a beneficiary who has the right to demand distribution or withdraw substantially all assets from the trust.
There are limited exclusions to the definition of beneficial owner, such as minor children, non-senior employees, and contingent beneficiaries of a trust.
11. What information is required on the BOI report?
Reporting companies must submit the following information:
Identifying information on the reporting company | Identifying information on the beneficial owners |
• Legal name, trade name, and “DBA” • U.S. street address for principal place of business • Address for principal place of business • Jurisdiction in which it was formed or first registered • Tax ID number | • Legal name • Date of birth • Current residential street address • ID number (passport, driver’s license, etc.) • Image of document with ID |
12. When does my business need to file (if filing is required)?
For entities formed prior to January 1, 2024, reports must be filed no later than January 1, 2025. Entities formed on or after January 1, 2024, should be prepared to file the report upon formation of the entity; however, the deadline for filing is 90 days after the date of formation.
13. Is this an ongoing reporting requirement?
Following the initial report, if there are any corrections or changes of ownership, a new report must be filed within 30 days of the correction or change. Otherwise, there is no ongoing filing requirement. Some changes that would require a new filing include a change of address, change in senior management, or change in ownership.
14. To whom can FinCEN disclose the information?
FinCEN can disclose the information only to authorized government authorities and financial institutions in certain circumstances.
15. Are there penalties for failing to report?
Yes. Penalties include civil penalties of up to $500 per day as the violation continues. They also include criminal penalties in the form of fines up to $10,000, imprisonment of up to two years, or both.
The information in this fact sheet should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only and no attorney-client relationship is formed by this communication. This information reflects the status of the CTA as of December 29, 2023. To obtain more information, please contact Louann Bronstein at lbronstein@huntermaclean.com or Tom Cullen at tcullen@huntermaclean.com.
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]]>The post Video: Mary Russell Discusses Marriage-based Green Card Application appeared first on HunterMaclean.
]]>In this video for Savannah CEO, immigration attorney Mary Bostwick Russell with HunterMaclean talks about some of the do’s and don’ts for those looking to apply for a marriage-based green card.
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]]>The post Video: Mary Russell of HunterMaclean Discusses Georgia’s J-1 Visa Waiver Program appeared first on HunterMaclean.
]]>In this video for Savannah CEO, immigration attorney Mary Bostwick Russell with HunterMaclean discusses the process for Georgia’s J-1 Visa Waiver Program and how it applies to foreign national physicians.
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]]>The post Trends and Developments appeared first on HunterMaclean.
]]>Background
The State of Georgia is located in the Southeastern United States. It has a population of almost 11 million people (eighth largest in the United States) and is growing. Atlanta, a regional and national business hub, serves as the state capital, while the port city of Savannah is one of the busiest ports in the country.
Business Environment
Georgia has a business-friendly legal and regulatory environment. The State focuses on business development through investments in workforce training, infrastructure, real estate development, logistics, and a wide range of tax credits and exemptions. It has been named the “Top State for Doing Business” for nine consecutive years. Growth sectors include agriculture, logistics and distribution, automotive, cybersecurity, aerospace, life sciences, and entertainment.
Infrastructure
Georgia is ideally located for quick access to the fast-growing Southeastern United States and the rest of the country. Proactive investments in road, rail, and port facilities have led to Georgia becoming one of the largest logistics hubs in the country. It also has one of the busiest airports in the world with ready access to global locations.
Taxes
In addition to federal taxes levied by the government of the United States, Georgia levies a top-end personal and corporate tax rate of 5.75% but also offers a multitude of credits through which companies can reduce or eliminate their tax liability, including job creation and investment tax credits, as well as industry-specific exemptions.
Basic Legal Structure
Federal law applies in all 50 United States, with slight variations in scope and application of some federal laws based upon appellate circuits. Georgia is subject to the United States Constitution and federal law as interpreted by the United States Supreme Court, the 11th Circuit Court of Appeals, and federal trial courts. Georgia also has a state constitution, laws passed by the General Assembly (legislative branch), and local laws passed by municipalities, all as interpreted by the Georgia Supreme Court, the Georgia Court of Appeals, and state trial courts.
Business Formation
The United States does not have a federal law governing the formation and internal operations of corporations, limited liability companies, or other business entities. Each state has its own individual business entity statute. A business entity may choose any state as its formation or home state. The state of formation does not need to be a state where the entity has an office and/or employees or where the entity does business. The state of formation will govern formation requirements, dissolution, or merger. Courts typically apply the law of the state of formation to an entity’s internal affairs.
It is relatively easy to form a business in Georgia. Primary business forms are limited liability companies (LLCs) or corporations. To form an entity, Articles of Incorporation (corporation) or Articles of Organization (LLC) are filed with the Georgia Secretary of State.
Corporations are generally favoured by foreign investors primarily due to their tax advantages. Foreign owners are not required to file United States federal and state income tax returns or pay tax on gains when sold, unless the corporation is a United States real property holding company. Foreign owners are subject to tax on profit distributions, typically 30%, unless reduced or eliminated by treaty. Shareholders of corporations are generally not liable for the liabilities, debts, and other obligations of the corporation.
LLCs offer partnership-like flexibility of ownership and control and tax treatment, but may be less appealing to foreign investors, particularly those that are corporations. LLCs report their income, profits, and gains to their members, and all members, including foreign members, are required to separately file United States federal and state tax returns and pay tax on their “allocable share” of the income, profits, and gains. Additional United States “branch profits tax” may apply.
Whatever entity is chosen, Georgia requires that an entity qualified to do business in Georgia has a registered office and a registered agent for receipt of legal documents and notices.
Once an entity is formed and begins operating in Georgia, many municipalities require a business licence or tax certificate, which typically must be renewed annually.
To maintain an entity in good standing in Georgia, the entity is required to file an annual report with the Georgia Secretary of State and pay an annual renewal fee (currently USD50).
Legal Climate
Georgia is generally a pro-business state, but there can be some large pro-plaintiff verdicts from time to time. Federal courts, where judges are appointed for life, are often viewed as safer for businesses, but they are courts of limited jurisdiction.
Employment Laws
Georgia is one of the most pro-business jurisdictions in the United States. Georgia is a “right to work” state, which means that the right to work cannot be conditioned upon joining or not joining a union. Absent a contract of employment, which can be found in a written contract or other communication, such as a handbook, the employer/employee relationship is “at-will”, which means that the employer or employee may end the employment relationship at any time for any reason not prohibited by law. Generally, prohibited reasons are prescribed by federal law – employment decisions may not be made based upon race, colour, religion, sex, national origin, gender, sexual preference, age, disability, or other prohibited reasons.
There are other laws applicable to employers in Georgia, and some local municipalities impose additional obligations. Companies looking to do business in Georgia should consult with experienced counsel to ensure compliance with applicable requirements.
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]]>The post Is it a Boat Slip, a Dock, or a Condo? Wait, it’s a Dockominium! appeared first on HunterMaclean.
]]>The term “dockominium” is not defined in the Georgia Condominium Act or Georgia case law. Dockominiums as an interest in land are derived from the Georgia Condominium Act, which defines “Property” as including “any real property and any interest in real property, including without limitations, parcels of air space.”
States adjacent to Georgia have defined the term “dockominium” through case law. The Florida Circuit Court defines a dockominium as “the water-based version of a condominium, allowing a buyer to purchase a boat slip with the right to use the common elements of the marina.” Courts in North Carolina and Tennessee define dockominium similar to the Florida definition. In North Carolina,a dockominium is “an individual boat slip space that a marina sells or leases long-term to an individual boater.” According to the Tennessee Court of Appeals, a dockominium is “a series of boat slips on a dock that can be sold individually” and is governed by the same rules as condominiums under the Tennessee Horizontal Property Act.
For purposes of collecting assessments, a dockominium is treated like real property. A condominium association can hold an owner of a condominium unit liable for unpaid assessments. The Georgia Court of Appeals states that, “To the extent that the condominium instruments provide, the personal obligation of the unit owner and the lien for assessments shall . . . include . . . [t]he costs of collection, including court costs, the expenses of sale, any expenses required for the protection and preservation of the unit, and reasonable attorney’s fees actually incurred[.]”
The Georgia Code provides that all assessments due and payable from the unit owner constitute a lien against the unit superior to all other liens, except the lien of any first mortgage or secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit.
In accord with the public policy of the State of Georgia, condominium associations have sufficient power to enforce the collection of assessments, as otherwise, these entities would not be able to continue to function and meet their obligations without unfairly burdening the other members of the community.
The dockominium association owns and maintains the marina, but it may be difficult to meet its obligations if too many owners fail to pay their assessments. Assuming the association governing the dockominium has a unit owner past due on his or her assessments, and there is an automatic lien that travels with the Property under the Georgia Condominium Act, the association may reduce its lien for assessments to judgment. The Georgia Code states that “the lien[s] may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property.” By reducing the lien for assessments to a judgment, the association is creating a tool to collect assessments against a non-paying owner.
Here is where the fun starts. How does the association collect its judgment? The association can foreclose its judgment against the dockominium subject to liens that may have priority. Generally, the association will have a first priority lien that travels with the Property. However, the association’s lien may be subordinate to a purchase money mortgage or deed to secure debt.
An association may not want to foreclose its judgment against the dockominium unit if another lienholder has priority in the Property, as that lienholder must be paid the value of its lien before the association could take title to the Property through a sheriff’s sale.
At a sheriff’s sale, the sheriff can levy on the Property by selling the boat slip to pay the association’s judgment. If the association’s judgment is the only lien on the Property or the first priority lien, the association can foreclose its judgment with a credit bid up to the total amount of its judgment. The sheriff is entitled to commission for the sale, which is set by statute.
A sheriff’s sale is different than a non-judicial foreclosure sale. A non-judicial foreclosure sale would be cried out on behalf of a lender that had a power of sale in its deed to secure debt. An association foreclosing a judgment lien is not exercising a power of sale in a deed to secure debt because it may not have a mortgage or deed to secure debt. Whereas the association pursuing a sheriff’s sale must have a judgment at the time of sale, the lender may or may not have a judgment against the unit owner at the time of a non-judicial foreclosure sale. If the association is the lender on the dockominium sale, it may be possible to conduct a non-judicial sale of a boat slip. If the governing documents grant a power of sale to the association, that may allow the association to conduct a non-judicial sale of the dockominium as well.
Francesca Macchiaverna is a partner at HunterMaclean. She is an experienced litigator and represents clients in business-to-business commercial debt collection. She can be reached at 912.236.0261 or fmacchiaverna@huntermaclean.com.
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]]>The post Corporate Transparency Act: Will You Need to Register Your Business After January 1, 2024? appeared first on HunterMaclean.
]]>The Corporate Transparency Act (CTA) will become effective January 1, 2024. The CTA was enacted on January 1, 2021, as part of the National Defense Authorization Act for Fiscal Year 2021. In the interim period, the Department of Treasury (FinCEN) released its proposed regulations, provided a comment period, and then released its final regulations on September 30, 2022.
The CTA is groundbreaking. It creates a national database to register corporations and limited liability companies. Though not specifically mentioned, limited partnerships (including LLPs and LLLPs) will be required to register as well, on the basis that the CTA requires the registration of “other entities created by filing a document with the secretary of state of the relevant state.”
The CTA’s purpose is to target anonymous shell companies to address and prevent money laundering, terrorism funding, tax evasion, and similar illicit financial activities. However, due to the business size component of the CTA, many legitimate small businesses will be required to register.
With some exceptions for highly regulated industries, the CTA requires reporting by any corporation, limited liability company, or filing company unless it satisfies all the following:
The CTA requires that each reporting company identify itself by reporting:
The CTA requires that certain identifying information be reported for each “beneficial owner” of a reporting company. A beneficial owner is any individual who, directly or indirectly:
There are three specific indicators of “substantial control”:
In addition, a catch-all provision of “any other form of substantial control over the reporting company” is included, to further the goal of requiring a reporting company to identify all the individuals who stand behind the reporting company and direct its actions.
“Ownership interests” include both equity in the reporting company and other forms of interests, including capital or profit interests, convertible instruments, warrants or rights, or other options or privileges to acquire equity, capital, or other interests in a reporting company. An “ownership interest” would also include any ownership interest by another person that an individual has the ability to control.
Each beneficial owner will be required to report identifying information, including:
There is no exception for existing entities. Entities formed before January 1, 2024, will have one year to file the report. The reporting requirement will be immediate (essentially, within 30 days after formation) for entities formed after January 1, 2024.
The CTA provides significant penalties for failing to file a report or providing false information. These penalties include monetary fines up to $10,000, two years in prison, or both.
The CTA provides safeguards to protect the disclosure of information in the database. The general public will not have access to the database, and the information will not be subject to the Freedom of Information Act. In support of the CTA’s purpose, the information will be available to law enforcement agencies, federal agencies for national security, federal regulatory agencies (such as the IRS), and financial institutions, in each case following strict regulatory protocols.
Louann Bronstein is a partner at HunterMaclean, where she serves as head of the corporate group and specializes in corporate law and mergers & acquisitions. She can be reached at (912)236.0261 or lbronstein@huntermaclean.com
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]]>The post Video: Francesca Macchiaverna of HunterMaclean on the Coastal Heritage Society appeared first on HunterMaclean.
]]>Francesca Macchiaverna is a partner at HunterMaclean. In this video for Savannah CEO, she talks about the Firm’s community involvement and her work with the Coastal Heritage Society.
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]]>The post Video: Francesca Macchiaverna of HunterMaclean Discusses Foreclosures and Workouts appeared first on HunterMaclean.
]]>Francesca Macchiaverna is a partner at HunterMaclean. In this video for Savannah CEO, she talks about her practice dealing with foreclosures and workouts, mostly for commercial businesses.
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