By: Audrey Henderson

We’ve all heard stories about friends or family who have purchased a “lemon” vehicle from a dealership and the vehicle had so many problems that it was in the shop more than on the road.  These “lemon” vehicles got their name from the Virginia Motor Vehicle Warranty Enforcement Act of 1948 (also known as the “Lemon Law”).  The Lemon Law provides vehicle owners with a remedy against the dealer for this type of defective vehicle.

To begin with, the Lemon Law applies to new and used vehicles or secondary or subsequent purchasers, as long as the second owner is entitled to the benefits of the original warranty of the first purchaser.  Subaru of Am. v. Peters, 256 Va. 43, 48 (1998); Pattern v. Chrysler Corp., 41 Va. Cir. 473, 474 (Va. Cir. Ct. 1997).  The Lemon Law also applies to leased motor vehicles.  Va. Code Ann. § 59.1-207.11.  Finally, although the Lemon Law does not include motor homes, it does include the self-propelled motorized chasses of motor homes, which is defined as “the frame, wheels, and engine of a motor vehicle, but not the body.” Parks v. Newmar Corp., 384 F. Supp. 2d 966, 969 (W.D. Va. 2005).

There are four considerations to determine if the lemon law is an available remedy for your defective vehicle:

1. Who sold you the vehicle?
2. For what purpose do you use the vehicle?
3. Did the purchase include a warranty?
4. How long ago did you purchase the vehicle?

 
Who Sold You the Vehicle?

The Lemon Law requires manufacturers (Ford, GM, Honda, Toyota, Chrysler, etc.), as well as their agents, and authorized dealers (thing of car dealership), to make any repairs that are necessary to fulfill any warranties issued to the consumer of the vehicles.  In other words, the vehicle you purchased from a private party on Craig’s List does not qualify (unless the warranty from an authorized dealer is also transferred to you – see below).

For What Purpose Do You Use the Vehicle?

The Virginia Code requires that the vehicle be used in “substantial part for personal, family, or household” use.  § 59.1-207.11.  Examples include driving back and forth to work, taking your kids to soccer practice, going out to buy groceries, etc.  There can be no recovery under the Lemon Law for commercial purposes (i.e., vehicles used for the purpose of business).  Durso v. Chrysler Corp., 41 Va. Cir. 211, 213 (Va. Cir. Ct. 1996).  Thus, if a business entity is seeking redress under the Lemon Law, there is no remedy unless the complaint contains “allegations in good faith that [the business entity] is a ‘consumer’ within the definition of the Act.”  Id.  However, the business entity cannot be a corporation because the definition of “consumer” under the Virginia Lemon Law excludes corporations.  Gary Hart Mach. Corp. v. Mercedes-Benz of N. Am., 41 Va. Cir. 249, 250 (Va. Cir. Ct. 1997).  Finally, if the first purchaser uses the motor vehicle for commercial purposes and the subsequent purchaser uses it as a consumer good, then the subsequent purchaser can still file a claim within the statutory time period described below.  Subaru of Am. v. Peters, 256 Va. 43, 49 (1998).

Did the Purchase Include a Warranty?

The Lemon Law serves as a remedy to the consumer if the manufacturer, its agents, or authorized dealers “[did] not conform to any applicable warranty by repairing or correcting any defect or condition . . . which significantly impairs the use, market value, or safety of the motor vehicle.”  Va. Code Ann. § 59.1-207.13(A).  If the manufacturer or dealer does not correct a faulty vehicle within the express warranty by correcting a defect after a “reasonable number of attempts,” the manufacturer shall either replace or repurchase the vehicle.  Id.    

A “reasonable number of attempts” have been undertaken if: (1) the same nonconformity has been repaired three or more times by the manufacturer, its agents, or authorized dealers; (2) the defect is a serious safety issue that is life-threatening and has been repaired one or more times by the manufacturer, its agents, or authorized dealers; or (3) the vehicle is out of service for a cumulative total of thirty calendar days.  Id. § 59.1-207.13(B). 

How Long Ago Did You Purchase the Vehicle?

Assuming the warranty still applies, a cause of action must be brought within eighteen months from the date of the original delivery of the motor vehicle to the consumer.  Id. § 59.1-207.11.  It does not matter when the vehicle was actually manufactured originally.  During this period, the consumer can report any nonconformity to the manufacturer and pursue any rights provided by the Lemon Law.  Va. Code Ann. § 59.1-207.11.  Furthermore, this eighteen-month period can be extended under two situations. 

The first situation is where the consumer and the manufacturer attempt in good faith to settle the dispute pursuant to an informal dispute settlement.  Va. Code Ann. § 59.1-207.16.  The informal dispute settlement procedure is not defined in the Act and it doesn’t have to be a formal or structured arbitration process.  Smith v. GMC, 35 Va. Cir. 112, 118 (Va. Cir. Ct. 1995).  It does have to involve a decision made by someone other than the manufacturer or the consumer in the decision-making process.  Id.  If the dispute settlement resolution is not satisfactory to the consumer, then the consumer has twelve months from the date of the final action taken by the manufacturer in the dispute settlement procedure.  Id.  To clarify, “a consumer who uses the dispute settlement procedure may file an action either within the eighteen month limitation or within twelve months of the manufacturer’s final action in the settlement procedure, whichever is longer.”  Price v. Freedom Ford, Inc., 46 Va. Cir. 129, 131 (Va. Cir. Ct. 1998). 

The second situation is where the manufacturer has been notified within the eighteen month period, but the defect still exists or has not been repaired by the manufacturer, its agent, or authorized dealer.  Va. Code Ann. § 59.1-207.13(C).  Notice can be accomplished upon (1) the mailing of the complaint to the manufacturer; (2) the manufacturer has responded in writing to the complaint; or (3) a factory representative has inspected the vehicle or has met with the consumer or an authorized dealer regarding the nonconformity. Va. Code Ann. § 59.1-207.11.  The eighteen month time limitation will be extended until the vehicle has been repaired and conforms to the warranty.  Va. Code Ann. § 59.1-207.12. 

Here’s a new vehicle example:  Suppose you purchased a brand new 2015 Ford Focus on June 1, 2015, and the car is under a three-year warranty.  That gives you until June 1, 2018 to bring in the car for repairs (usually free of charge).  During this three year period, you start to have trouble with the car, and you realize that the defect is covered by the motor vehicle manufacturer’s express warranty, so you bring the car the dealership who sold it to you for maintenance.  Once repaired, you take the car home, but the same problem comes up again and again.  From the time you received the car on June 1, 2015, you’ll have eighteen months to file a claim.  Filing a claim must be done within that eighteen month period, unless you fit into two of the exceptions described above (dispute settlement agreement and notice). 

Here’s a used car example:  You bought a used 2005 Chevy Cavalier from the dealership on June 1, 2015.  The car also comes with a three-year warranty.  The same rules apply.  You have eighteen months from the time you received the car on June 1, 2015 to file a cause of action under the Lemon Law.  Again, it is irrelevant when the car was actually manufactured.  The dates and times that matter are when you first took possession of the car and how long the warranty lasts.  It is unlikely that you’ll have a cause of action under the Lemon Law after the warranty expires because at that point, the car has been driven for too long (unless one of the extension circumstances apply).   

The Lemon Law was enacted to protect consumers of newly purchased motor vehicles – whether the vehicle itself is new or used.  Varisce v. Ford Motor Co., 46 Va. Cir. 270, 271 (Va. Cir. Ct. 1998).  If you are having trouble with your newly purchased vehicle and the authorized dealer has not been able to fix it after three or more attempts, or your vehicle is in the shop for more than 30 consecutive days, you may have a cause of action under the Virginia Lemon Law.  If your vehicle is a lemon, the Lemon Law requires the manufacturer to provide you with a full refund of the purchase price, or replace the motor vehicle with a comparable motor vehicle acceptable to you, the consumer.  Va. Code Ann. § 59.1-207.13(A). 

If you think you may have purchased or leased a lemon, please contact Steven Krieger Law for a confidential consultation.  The consultation will include a discussion of your specific facts  and how you may recover against the dealer. 

By: Audrey Henderson

If you read my first blog post on Why is Defamatory or Libelous Content Allowed Online?, and have determined that the content posted by your wife, husband, boyfriend, girlfriend, etc. is defamatory, the next step is trying to remove the content. 

If there’s only one copy of the defamatory content, destroying it may not be too difficult, but given new technology and the digital world, most content makes it online and then removal becomes exponentially more challenging. 

There are three potential avenues to remove defamatory content posted online: the original publisher, the website, and the website hosting service provider.  Websites and hosting service providers are generally protected by the Communications Decency Act of 1996.  Specifically, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1).  The reason this Act was created was because Congress realized that the internet was being offered as a new forum for free speech, the exchange of ideas, and political debates.  Id. § 230(a)(3). 

Furthermore, websites that provide a forum for others to potentially post defamatory statements are often staunch defenders of the First Amendment and are not likely to take down the offending content.  For instance, if a person asks a website to remove false comments about them, how will the website know what’s true?  Which party is lying? Perhaps the most notable of these sites, thedirty.com, explains that “because [they] have no way of knowing which side is telling the truth and which side is lying” they will not take down the content. 

However, just because a website owner cannot be liable, does not mean that the party who actually posted the defamatory statements on the website can escape liability.  Zeron v. America Online, Inc., 129 F. 3d 327, 330 (4th Cir. 1997).  As discussed in my last post, Why is Defamatory or Libelous Content Allowed Online?, liability depends on your ability to meet the defamation standard.   

Defamation Standard

For a private figure plaintiff, the standard that applies to most of us, suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005).  The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Gazette, 229 Va. 1, 15 (1985).

So, How Am I Supposed to Get the Defamatory Content Removed?

There are at least four options to explore when attempting to get the offensive content removed.  The first is to take legal action and file suit against the individual who posted the content online.  Based on the standard discussed above, a court will either grant or deny your claim.  If you are granted relief, you can give your court order as proof to the website provider and they may remove the defamatory content. 

A second option is to explore the website’s Terms of Service, all social media sites like Facebook, Instagram, Twitter, Tumblr, etc. and some of the cheater websites like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or the negative review sites like Bad Scalpel, and Bad Business R Us, etc. have Terms of Service.  It could be helpful to review the Terms of Service for each site and see if the content violates any of the terms.  If so, the website likely has a system in place for you to report violations of their terms of service. 

A third alternative is to use an “arbitration” service.  Some of the sites that serve as a platform for defamatory content have agreements with an independent arbitrator service.  When arbitration is used, the arbitrator will investigate the alleged defamatory statements posted by the original publisher.  If the publisher provides sufficient proof, then it is likely that the post will not be removed, but if the content is baseless, it may be removed.  However, not every site that may contain defamatory content has agreed to work with an arbitration service.  For the “cheater websites” like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or Dating Psychos or the negative review sites like Bad Scalpel, and Bad Business R Us, check and see if they have a specific agreement with InternetReputationControl.com or a similar company.  This company, for a fee, will pay for an arbitration service and will additionally represent you during the removal process.  Just like the arbitration process, the arbitrator will investigate the claim and come to a determination of whether the statements made are true. InternetReputationControl.com then recommends to the website provider whether the content should be removed from the website.  While the websites who have agreements with Reputation Control have said they will follow the recommendations made, Reputation Control states that they cannot always guarantee success.  Finally, some websites maintain their own internal removal options like accepting payment in exchange for removal of the offending content.  Other sites may remove content if you give them proof that what was posted is false.  However, a handful of these websites do not provide any removal options and retain the right to keep or remove the content regardless of proof. 

A fourth way to remove content from a website is to explain to the website that the content falls into a protected category or that some exception or exclusion applies under the Communications Decency Act of 1996 and thus they must remove the content.  This may be especially useful for removing content from social media sites like Facebook, Twitter, Instagram, and cheater websites.  Below are several exceptions from the Act of 1996 that may assist your removal efforts. 

(1) No effect on Criminal Laws – As mentioned in my first defamation blog, there are certain areas of speech that are not protected by the First Amendment.  Website owners must still abide by federal and state laws.  Posts in regards to unprotected obscenity and child pornography will still be illegal.  Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).

(2) Intellectual Property Claims – Under the Digital Millennium Copyright Act of 1998, if you have copyright ownership of certain pictures or phrases, you can send a violation notice to a website owner to remove the content.

(3) State law Violations – The Communications Decency Act cannot prevent State laws or common-law doctrine that require website providers to protect the interest of third parties.

(4) Communications Privacy Laws – Depending on the type of communication, one can argue that under the Electronic Communications Privacy Act provides that any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic mechanical, or other device to intercept any oral communication” faces civil liability.  18 U.S.C. § 2511(1).

If none of the above applies, you have two more avenues depending on your circumstances.  First, if the website provider edits content that alters its meaning into a defamatory statement, then the website provider may be held liable for defamation.  Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1263-64 (N.D. Cal. 2006).  Second, some jurisdictions allow the plaintiff to recover based on promissory estoppel.  In defamation situations where the website provider promised to take down defamatory content and the plaintiff relied on that promise, but the website provider never took the content down, the plaintiff can then argue promissory estoppel.  Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1107 (9th Cir. 2009).

While this information may seem daunting, given that website owners are generally not liable for what is published, there is still hope that you’ll be able to remove the defamatory statements from the internet – it just may take more time and effort than you expected.

By: Audrey Henderson

Introduction

People make comments every day, but why are some comments allowed and other comments considered defamatory?  Doesn’t the First Amendment protect all the comments?  The Virginia Supreme court has defined defamation as words or content that create a substantial danger to an individual’s reputation or good standing.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  Additionally, words that contain and accusation or “an imputation necessarily harmful to reputation” may also be considered defamation.  Id. at 23.  This includes both slander (verbal) and libel (written).  To determine if the content is defamatory, you have to evaluate what was said and who was the subject matter.   

What Was Said and is it Protected by the First Amendment Freedom of Speech? 

Generally, speech is protected by the First Amendment.  When the Constitution was created, the founding fathers wanted to protect against the British sedition and licensing restrictions of the press, where individuals were not allowed to criticize the government at all. Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 4th ed. New York: Wolters Kluwer Law & Business, 2011. 950-969.  The Constitution was drafted to promote four fundamental ideas: self-governance, truth, societal tolerance, and individual autonomy/self-expression.  Massey, Calvin R. American Constitutional Law: Powers and Liberties. 4th ed. New York: Wolters Kluwer Law & Business/Aspen, 2013. 849-853.  The Supreme Court explained that the idea of free speech is to create a free marketplace for the exchange of ideas.  Free speech encourages public debate and ideas in the hope that the truth will eventually rise to the top.  New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964). 

While the First Amendment protections are critical to our American society, they also make it very difficult to force people to remove libelous content unless if falls into one of the unprotected categories created by the Supreme Court.  These unprotected categories include incitement of immediate crimes, true threats, fighting words, obscenity, and child pornography.  See Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement of immediate crime); Virginia v. Black, 538 U.S. 343 (2003) (true threats); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).  Additionally, other categories of speech may receive protection under the First Amendment depending on the situation.  These include commercial speech and torts based on speech such as defamation and intentional infliction of emotional distress.  See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (commercial advertising speech); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defamation of public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (defamation of private figures); Hustler v. Falwell, 485 U.S. 46 (1988) (intentional infliction of emotional distress of public figures); Snyder v. Phelps, 562 U.S. 443 (2011) (intentional infliction of emotional distress of private figures). 

Therefore, an angry husband, wife, girlfriend, boyfriend, or anyone else can post mean-spirited content online – especially, if it’s true (more on this below).  The reason may not be fair, but the First Amendment allows for the freedom of expression through speech, so generally, even hate speech, offensive speech, and opinions will be protected under the First Amendment.  See Virginia v. Black, 538 U.S. 343 (2003) (hate Speech); Cohen v. California, 403 U.S. 15 (1971) (offensive speech).

Who was the Communication About -- Public Individual vs. Private Individual?

A public figure is a person who plays an influential role in society and has ready access to the mass media.  They are usually people who voluntarily thrust themselves into the light of public questioning, and by reason of their fame, shape events in areas of concern to society at large.  See Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).  Examples include politicians, celebrities, and public officials.  If a person does not fit into the category of a public figure, then they are considered a private figure.  In other words, most of us fall into the private figure category.

How Do I Know if the Posting is Defamatory or Libelous? 

A statement is defamatory if it tends to harm the reputation of another in a way that lowers his/her good standing within the community, and thus deterring others from associating with that person.  Bell v. Nat’l Republican Cong. Comm., 187 F. Supp. 2d 605, 615 (S.D. W. Va. 2002).  Statements that are merely offensive unpleasant are not defamatory.  Chaves v. Johnson, 230 Va. 112, 119 (1985).  It will be up to the Court, not the jury, to determine whether an alleged defamatory statement is a mere opinion or one of fact.  Id.  Under Virginia common law, a private figure filing a claim of action for defamation must first show the defendant published a false factual statement of or concerning plaintiff or the plaintiff’s reputation.  Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985).  Furthermore, claims of action for private individuals to recover only compensatory damages must prove, by a preponderance of the evidence “that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Id. at 15.

In other words, for a private figure plaintiff (the standard that likely applies to the majority of us), suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005).  The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Gazette, 229 Va. 1, 15 (1985).

For a public figure (celebrity, politician, etc.), the statements in question must meet the “actual malice” standard described in Times v. Sullivan.  To be awarded compensatory and/or punitive damages based on a defamation claim, the public figure plaintiff must prove by clear and convincing evidence that the defendant made knowingly false statements or had a reckless disregard for the truth.  If proven, the defendant will be liable for defamatory speech.  It does not matter if the defamatory statements is a matter of public concern or private concern.  

For a private figure plaintiff who is suing for statements made on public matters, the previously discussed standard of “actual malice,” but only for punitive damages.  The plaintiff must prove, by clear and convincing evidence, that the defendant made knowingly false statements or had a reckless disregard for the truth.  But, if the private figure plaintiff is only seeking compensatory damages, there is a lower burden for the plaintiff to prove.  The plaintiff must prove, by a preponderance of the evidence, that the defendant was merely negligent in failing to discover the misstatements. 

If you determine that the content is defamatory, stay tuned for my next post with tips to help you remove the defamatory content from the web.

By: Melanie Eisenhart

Suppose you come across a picture of yourself, without your permission, posted on a website advertising a local business? You’d probably sense that this seems wrong and that your rights were imposed upon in some way.  A courteous phone call to the business will likely resolve the issue, but what if the business will not cooperate? Or what if you find your image on a social media site like Facebook, Instagram, Twitter, or Tumblr, or one of many “cheater” websites like LiarsCheatersR’Us, Cheater Report, The Dirty, Online Dating Scams 101, or Cheater Reports, and the poster refuses to remove the image? 

If the poster will not voluntarily remove your image, one possible avenue of recourse is to determine if the poster has infringed upon a copyright.[1]

Copyright law applies to amateurs and professionals alike. Section 104 of the Copyright Act takes an individual’s rights to their intellectual property further and safeguards even unpublished artistic works. A copyright in an original work exists at the moment of creation; however, to bring a lawsuit for infringement, the author must comply with the statutory requirements of the Copyright Act.[2]

The first step is to determine who owns the copyright by determining who took the picture or image you are seeking to remove.  Perhaps contrary to your suspicion, the photographer of an image owns the copyright to that image and has certain intellectual property rights associated with the image, including how the image is used—as the person in the photograph, you have no intellectual property rights to the image. If the poster took the picture, the poster owns the copyright and posting the picture will not violate any copyright infringement claims[3]

If the person who posted the image did not take the image, the next question is to determine if the poster is allowed to post the image.  One way to avoid a copyright infringement claim is to get permission from the person who owns the copyright. Another way to avoid a copyright infringement claim is if the image may fall under the fair use doctrine.

Fair use is an affirmative defense to an accusation of copyright infringement. In other words, it is an excuse, or an exception, to infringing upon the rights of another.

Section 107 of the Copyright Act lays out the statutory doctrine of fair use, and details four factors that courts consider in determining whether fair use is applicable to an allegation of copyright infringement. The section states:

"[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Courts have further expanded on how these four factors are evaluated.

Factor One: The Purpose and Character of the Use
If the user stands to profit from the use of the copyrighted material without compensating the creator, this tends to weigh against fair use. In Harper & Row Publishers, Inc. v. Nation Enterprises,[4] the court found that fair use did not apply and the plaintiff publisher’s copyright was violated when the defendant magazine used quotes from former president Gerald Ford’s soon-to-be-published memoir because the magazine sought to profit from the plaintiff publisher’s material prior to the publication date.

Factor Two: Nature of the Copyrighted Work
When a work is more creative than factual in nature, fair use is less likely to be found. See generally Stewart v. Abend, 495 U.S. 207, 237 (1990) (noting that a movie derived from a fictional short story falls short of fair use and violates the owner’s copyright due to the similarities between the movie and story and the creative nature of the story).

Factor Three: Amount and Substantiality of the Portion Used
While the amount of the work used is important, whether the portion was of high significance, or the “heart of the copyrighted work,” generally plays a greater role in determining fair use. See generally  Sundeman v. The Seajay Soc’y, Inc., 142 F.3d 194, 205 (4th Cir. 1998) (finding that fair use applied and the copyright was not violated because the portions of text quoted by the defendant in an oral presentation, while significant, were not significant enough to be considered the heart of the material).

Factor Four: The Effect of the Use Upon the Potential Market for or Value of the Work
Since one of the benefits of the Copyright Act is to encourage creativity, it is natural that the owner of a work would expect to be compensated for his or her creation. When considering the effects on the potential market, courts look at whether the use "would materially impair the marketability of the work and whether it would act as a market substitute." Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003). See generally Harper & Row, 471 U.S. at 566 (finding that the use was not fair and violated the owner’s copyright because the quotes borrowed from President Ford’s unpublished manuscript showed clear-cut evidence of damage to the book’s marketability upon publication).

Most courts rely on the Supreme Court decision in Campbell v. Acuff-Rose Music, Inc. and find that these four factors cannot be considered in a vacuum, but must be “weighed together, in light of the purposes of copyright.” 510 U.S. 569, 578 (1994). Essentially, each of the fair use factors is important and creates a balance between the rights of the owner and the interests of the public.

A recent Virginia case raised the issue of copyright infringement when the plaintiffs, four high school students, challenged iParadigms (also known as Turnitin) for archiving their papers into the system’s database in order to evaluate future student submissions for plagiarism. A.V. ex. rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 635-36 (4th Cir. 2009). The court found that the defendant infringed upon the plaintiffs’ rights, but that, after considering each of the four factors and weighing their relevance together, the defense of fair use applied and the defendant did not violate the students’ copyrights. Id. at 645.

Copyright infringement is a serious issue, so a good rule of thumb is to always ask the owner’s permission before using an image that doesn’t belong to you. This could avoid the potential for copyright infringement and future litigation.

Footnotes:
[1] This differs from the protection offered by a trademark. To be clear, a trademark and a copyright are completely different. While a copyright protects artistic expression, a trademark protects a brand. Specifically, a trademark is “a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” United States Patent and Trademark Office, Protecting Your Trademark: Enhancing Your Rights Through Federal Registration, 1 (2015), http://www.uspto.gov/sites/default/files/BasicFacts.pdf. A trademark offers the same protection as a copyright when it is registered and published through the United States Patent and Trademark Office.
[2] Edgerton v. UPI Holdings, Inc., 2010 WL 2651304, at *5 (D.Md. July 1, 2010).
[3] Copyrights are federally protected through the Copyright Act, found in Title 17 of the United States Code. According to Section 102 of the Act, “copyright protection subsists [. . .] in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”
[4] 471 U.S. 539, 562 (1997).

By Assya Thode

It is easy and far too common to find yourself in a situation where an immediate family member, relative, or friend needs a place to stay and asks you for help.  You have probably known this person for a long time and are willing to help.  There is absolutely nothing wrong with helping, but what happens if this person over stays their welcome and then refuses to leave upon your request?*

The duration of their stay and any rent to be paid probably was not discussed in detail and you probably did not have the person sign a lease or written agreement, so how are you supposed to get this person out of your home?

Chances are you have already politely asked them to leave but after repeated failed attempts you are considering legal action because you are left with no other choice.

The first step is determining how the law characterizes your friend, relative, boyfriend, girlfriend, etc. in such circumstance.  Just because you do not have a written lease, does not mean you are powerless.

In Virginia, if no written agreement or lease is in place, then the courts consider the agreement to be verbal lease, which is treated like a month-to-month tenancy. See Virginia Code § 55-248.7 for leases governed by the Virginia Residential Landlord and Tenant Act.

The second step is to begin the eviction process.  To evict a month to month tenant, you must terminate the occupancy by sending a 30 day Notice of Termination. See Virginia Code §55-222. If the 30 day period expires and your houseguest has failed to vacate your property, you then simply follow the steps of the eviction process.  For more details and a step by step explanation of the eviction process, please see our blog The Eviction Process in Virginia: A Guide for Landlords and Tenants.

Don't give up. Eventually, you will be able to get your unwanted guest out. 

*If your guest is threatening you or you fear for your safety, please call your local law enforcement agency or 9-1-1 if it is truly an emergency.  If you fear for your safety, you may consider filing a protective order to prevent the guest from harming you. See Virginia Code § 19.2-152.10.

This blog post provides general information only and is not intended to provide the reader with legal advice. Laws often change before websites can be updated, so please contact Steven Krieger Law for a consultation to evaluate your specific case.