By Susann Narholm, Katarina Nguyen, and Steven Krieger
 
“Every attorney shall be liable to his client for any damage sustained by the client through the neglect of his duty as such attorney.”[1]  This statutory provision stands for the common sense principle that attorneys are responsible for the actions they take as counsellors and representatives of their clients—just like everyone else who acts on behalf of others or who interacts with others.  However, because of the place where this principle stands, at the intersection of many areas of the law, this statutory obligation is not as straightforward as it appears. 
 
In civil situations, which is the area where most people will come into contact with, or require the services of, attorneys, a standard of ordinary care applies.[2]  However, what happens when a client believes that his or her counsel has breached that ordinary duty of care?
 
To prevail on a claim of legal malpractice, a client must establish the following:

1. That the client employed the attorney;
2. That the attorney failed to perform his or her services with an ordinary standard of care; and,
3. The client was damaged as a proximate result of the attorney’s failure to perform.

 
Employment of Counsel

The relationship between an attorney and client has been considered to be the most sacred relationship in the law.[3]  Because of the nature of the legal profession, it is possible that an attorney could be “employed” simply based upon the meting out of legal advice, even if no money ever changes hands, and regardless of whether a formal contract is formed.  However, generally speaking, because of the vagaries of legal situations, the formation of an attorney-client relationship requires actual interaction between the parties as opposed to the mere review of generic information, such as reading an article on an attorney’s website.  The formation of an attorney-client relationship requires the assent of both parties, either directly or impliedly.[4]  In formal terms, this relationship is known as “contractual privity.”[5] 

Nevertheless, it is possible that a third party could be what is known in the legal world as a “third party beneficiary” of legal services, and therefore, can stand in the shoes of the client for purposes of a legal malpractice claim.  For example, if a person engages an attorney to make out a will, and in the process names a specific beneficiary, that beneficiary is essentially the intended beneficiary of the agreement between the lawyer and the client.  If the attorney fails to properly safeguard the estate while making a will so that the assets do not pass to the client’s intended beneficiary, that beneficiary may be able to state a claim for malpractice against the attorney if the attorney cannot correct the error after the death of the testator.  This is precisely what happened in the case of Thorsen v. Richmond Society for the Prevention of Cruelty to Animals.[6] 

In Thorsen, the Richmond SPCA was able to maintain an action for legal malpractice on the grounds that the SPCA, which was the testator’s sole surviving beneficiary, was unable to receive the testator’s bequest of real property due to the error of the attorney Thorsen when preparing the will.  As a result, the property passed intestate to other members of the testator’s family, thereby damaging the SPCA and depriving it of the full bequest.[7]

The Virginia Supreme Court held that the third-party beneficiary doctrine was a well-reasoned exception to the privity requirement, thereby permitting a party to proceed with a malpractice action.[8]  However, if a third party cannot claim beneficiary status, the rule of contractual privity will prevent that third party from asserting a malpractice claim,[9] and a malpractice claim cannot be assigned by a client to another party.[10]  

However, in 2017, the year after the Court ruled on Thorsen, the Virginia legislature enacted Va. Code § 64.2-520.1, which arguably has the impact of undoing the Court’s ruling in the estate planning context. The statute says that only the individual or their personal representative can maintain an action for legal malpractice in the estate planning context, the cause of action for which accrues upon the completion of the representation, unless there is a specific reference to subsection (B) “expressly grant[ing] standing to a person who is not a party to the representation.”
While a third-party could bring a legal malpractice claims in other contexts, a client cannot assign a legal malpractice claim to someone else.[11] This is due to the court’s concern that legal malpractice claims would be sold and traded like a commodity, which means that an attorney could be sued for malpractice by someone they never met before and for whom they never rendered legal advice or services.[12]

Falling Below the Standard of Care

The employment of counsel establishes a duty on the part of the attorney to the client, and failing to meet, or falling below the standard of care constitutes breach of the duty owed the client.  The standard of care is based on what the ordinary, prudent attorney would do under the same or similar circumstances.  In fact, the Virginia Supreme Court has stated:  “[The attorney] is not to be answerable for every error or mistake, but on the contrary, will be protected if he acts in good faith, to the best of his skill and knowledge, and with an ordinary degree of attention.”[13]  In addition, a negligent attorney can also apply the defense of contributory negligence in the context of legal malpractice cases, or that the client’s own negligence contributed to the client’s resulting damages.[14]
An illustration of this comes into play when an attorney is asked to make a determination about the path the courts will take in an unsettled area of the law.  The attorney cannot “look into a crystal ball” and foresee what will happen, but he or she can review the existing law and make a reasoned judgment about how a court might rule.  In Virginia, there is no blanket “judgmental immunity,” however, the Supreme Court has held that “if an attorney exercises a ‘reasonable degree of care, skill, and dispatch’ while acting in an unsettled area of the law, which is to be evaluated in the context of ‘the state of the law at the time’ of the alleged negligence, then the attorney does not breach the duty owed to the client.”[15]

Resulting Damages

“‘Damage is an essential element of a cause of action. Without some injury or damage, however slight, a cause of action cannot accrue.’” [16] An injury may be something intangible, such as the loss of the right to pursue a legal claim because of an attorney’s failure to take timely action to sue;[17] or an injury may be a tangible effect, such as having a judgment entered against the client, even if the client had not paid the judgment, due to an attorney’s manifest error.[18] 

However, it should be noted that in the event that the damage suffered by the client is so financially catastrophic that the client finds himself or herself filing for bankruptcy protection as a result, any claim for legal malpractice that arose prior to the bankruptcy filing would become part of the bankruptcy estate.[19] As such, the future of the malpractice claim is determined by the bankruptcy trustee, who may opt either to prosecute the claim as an adversarial proceeding in the bankruptcy court, or abandon the claim, in which event the claim reverts to the client.[20]

Collectibility is also an issue the courts consider when the damage is the loss of an otherwise viable claim due to the attorneys’ negligence. Collectibility of a claim can act as a limit on “the measure of the legal malpractice plaintiff’s damages to how much the legal malpractice plaintiff could have actually recovered from the defendant in the underlying litigation, absent the attorney’s negligence, not simply to the face value of the lost claim.”[21]  This collectibility issue goes to proving the attorney’s negligence was the proximate cause of the client’s damages.[22]

Finally, a potential claimant must understand that as a contract action, only pecuniary losses are considered recoverable damages in a legal malpractice claim, but this includes losses that are “reasonably foreseeable when the contract is made.”[23]  Non-pecuniary losses, such as pain and suffering or emotional distress are not recoverable.[24] Likewise, punitive damages cannot be recovered “in the absence of an independent, willful tort giving rise to such damages.”[25]

Making a Timely Legal Malpractice Claim

One of the most important aspects of any legal claim is making the claim in a timely manner.  This requires taking action before the “statute of limitations” runs out.  A statute of limitations is a time period created by the legislature in which a legal action must be filed in court or the right to file the claim is lost forever.  The purpose of statutes of limitations is to provide sufficient time for a potential plaintiff to take action, but not allow so much time to pass that the claim becomes stale, witnesses become difficult to locate, or memories of the events fragment.  The time periods involved may appear to be somewhat arbitrary, but the time periods themselves are meant to strike a balance between the rights of an injured party, the interests of justice in a fair and complete hearing, and the interest of a potential defendant in finality.

Although there are notes of tort law in legal malpractice claims, the courts have largely concluded that the duty of the attorney arises out of the agreement to perform services for the client.  Consequently, the claim is a contract claim and governed by the limitations period for contracts.[26]  This time frame is 3 years for an oral contract and 5 years for a written contract.[27]

It is nevertheless possible to allege an “independent willful tort,” such as fraud, if the conduct of the attorney is of a type that would ordinarily be considered tortious, and the duty that the lawyer owes to the client arises in a manner not solely attributable to contract.[28]  As this concept suggests, the legal doctrines applicable to such unique situations can be highly complex, and necessitate analysis by experienced counsel to determine whether a given case involves a tort claim in addition to a contract claim.

The Code of Virginia states that the limitations period for contract claims commences on the date that the breach occurred, not the date that the breach was discovered by the client.[29]  Therefore, it is important to act quickly once you realize that your attorney or former attorney may have committed malpractice.  Nevertheless, the Supreme Court has also held that the “continuing representation” rule applies in legal malpractice claims that tolls the statute of limitations.  “[W]here there is an undertaking which requires a continuation of services, the statute of limitations does not begin to run until the termination of the undertaking. . .This special rule is applicable to a continuing agreement between attorney and client.”[30]  This prevents the client from being placed in the awkward position of having to take action against an attorney who is still performing services under the original agreement.  However, the termination of the last services performed on the particular undertaking is what controls the start of the statute of limitations period, even if the attorney represents the client for other matters.[31]

Applying These Requirements to Civil Litigation and Criminal Defense Cases
​
As discussed above, there is a certain degree of latitude given to the lawyer who attempts to discern what a court will do, but chooses wrongly.  This reasonable judgment rule commonly arises in litigation matters.  These situations are often referred to as “cases within cases,” because in order to establish damages for a lost claim against a litigation opponent, it must first be established that but for the attorney’s malpractice, the client would have prevailed in the underlying action.  This often necessitates a “mini trial” of the underlying claim to establish that the malpractice claimant would have won that original case.[32]  Consequently, whether or not your claim for litigation malpractice is a truly winnable case can be open to interpretation. 

Likewise, the threshold for an attorney malpractice claim in a criminal case is somewhat more robust than in other situations.  This is because the client must establish that he or she obtained post-conviction relief, and was legally innocent, entitling the client to release from incarceration.[33]  Generally this rule supports the public policy of the Commonwealth that “a criminal defendant may not profit from a crime in a subsequent legal malpractice action.”[34] 

Like most situations involving complex legal issues, claims are evaluated on a case-by-case basis, taking into consideration all of the facts that are unique to you.  Therefore, be sure to consult with competent counsel if you feel that you have a potential claim against an attorney that has represented you by contacting us for a consultation. 
 
* * * * *

[1] Va. Code, § 54.1-3906.

[2] Virginia does not have certifications for legal specialists, therefore, the general standard applies for all attorneys authorized to practice in the Commonwealth.

[3] Shipman v. Kruck, 593 S.E.2d 319, 324 (Va. 2004) (noting the “special trust and confidence inherent in the attorney-client relationship,” and quoting Allied Productions, Inc. v. Duesterdick, 232 S.E.2d 774, 776-77 (Va. 1977)).

[4] Bankers Credit Service of Vermont, Inc. v. Dorsch, 343 S.E.2d 339, 341 (Va. 1986) (“In order for an agreement to be binding, the parties must have assented to its terms.  This assent, however, need not be communicated by express words, but may be inferred from the conduct of the parties.”).

[5] See Ayyildiz v. Kidd, 266 S.E.2d 108, 112-13 (1980) (noting that an adverse party cannot institute a legal malpractice claim, as adverse parties are not in contractual privity with the attorney, nor are they intended beneficiaries of the agreement between lawyer and client).

[6] 786 S.E.2d 453 (Va. 2016).

[7] Id. at 457.

[8] Id. at 463; cf Copenhaver v. Rogers, 384 S.E.2d 593, 596 (Va. 1989) (noting that “[t]here is a critical difference between being the intended beneficiary of an estate and being the intended beneficiary of a contract between a lawyer and his client.”)  As Copenhaver indicates, although alleging third-party beneficiary status may permit a case to proceed, it is still necessary to prove that the individual claimant was specifically intended to benefit under the contract for legal services.  Such a situation may occur where a parent engages an attorney for the representation of an adult child, for example.  Although the child may also be considered a client of the attorney from a professional ethics standpoint, the child is clearly the intended beneficiary of the agreement between parent and lawyer.

[9] Johnson v. Hart, 692 S.E.2d 239, 243-44 (Va. 2010).

[10] MNC Credit Corp. v. Sickels, 497 S.E.2d 331, 333 (Va. 1988).

[11] Id. at 334.

[12] Id. at 333-34.

[13] Glenn v. Haynes, 66 S.E.2d 509, 512-13 (Va. 1951).

[14] Lyle, Siegal, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 457 S.E.2d 28, 32, 249 Va. 426, 432 (Va. 1995).

[15] Smith v. McLaughlin, 769 S.E.2d 7, 14 (Va. 2015).

[16] Shipman v. Kruck 593 S.E.2d 319, 323 (Va. 2004) (quoting Keller v. Denny, 232 Va. 512, 520, 352 S.E.2d 327, 332 (Va. 1987)).

[17] Williams v. Joynes, 677 S.E.2d 261, 265 (Va. 2009).

[18] Shipman, 593 S.E.2d at 326 (“A client who suffers the entry of a judgment against him indeed suffers a legal injury or damage”)..

[19] See In re Sheikhzadeh, Case No.:  14-14219-BFK at **10-11 (E.D. Va. Bankr. Jun. 26, 2018); see also Shipman at 323 (the cause of action accrued during the bankruptcy petition, which vested in the Bankruptcy Trustee).

[20] Property held by the debtor prior to the filing of the petition, and scheduled under Section 521 of the Bankruptcy Code, reverts to the original holder after discharge and closure of the case if the property is not pursued by the trustee for the purpose of addressing the debtor’s debts through the bankruptcy estate.  However, bankruptcy is a complex field of law, and questions surrounding choses in action where a bankruptcy is involved should be addressed by competent bankruptcy counsel.

[21] Smith, 289 Va. at 261, 769 S.E.2d at 17 (Va. 2015).

[22] Id.

[23] Id. at 265 (What damages are recoverable in legal malpractice is governed by the law concerning damages in breach of contract cases, and thus “‘are limited to those losses which are reasonably foreseeable when the contract is made’” (quoting Kamlar Corp. v. Haley, 224 Va. 699, 706, 299 S.E.2d 514, 517 (Va. 1983)).

[24] Smith, 769 S.E.2d at 19.

[25] Id. (quoting O’Connell v. Bean, 556 S.E.2d 741, 743 (Va. 2002)).

[26] Oleyar v. Kerr, 225 S.E.2d 398, 400 (Va. 1976).

[27] Virginia Code, § 8.01-246.

[28] Goodstein v. Weinberg, 245 S.E.2d 140, 142 (Va. 1978). 

[29] Virginia Code, § 8.01-230.

[30] McCormick v. Romans, 198 S.E.2d 651, 654-55 (Va. 1973); see also Keller v. Denny, 352 S.E.2d 327, 330 (1987) (holding that “the breach of contract or duty occurs and the statute of limitations begins to run when the attorney’s services rendered in connection with that particular undertaking or transaction have terminated.”).

[31] Shipman, 593 S.E.2d at 324 (Va. 2004) (holding “[t]he proper inquiry is not whether a general attorney-client relationship has ended, but instead, when the attorney’s work on the particular undertaking at issue has ceased”); see also Moonlight Enters., LLC v. Mroz, 293 Va. 224, 232-33, 797 S.E.2d 536, 540 (Va. 2017).

[32] See e.g., Smith, 796 S.E.2d at 10-11.

[33] Id. at 13.

[34] Desetti v. Chester, 772 S.E.2d 907, 910 (Va. 2015) (citing Taylor v. Davis, 576 S.E.2d 445, 447 (Va. 2003); Adkins v. Dixon, 482 S.E.2d 797, 801-02 (Va. 1997)).

By Peter Anderson 

With alarming frequency, nursing homes are slipping arbitration clauses into the reams of paper elderly people musty sign when being admitted to a nursing home. There are 2.5 million Americans living in nursing homes or senior living centers. Some legal advocates believe that as many as 90% of large nursing homes in the U.S. now include arbitration agreements in their admissions contracts.

In many cases, these agreements allow nursing homes to avoid being sued in a normal civil court. This means there is no judge, no jury, and the proceedings in most cases will remain sealed from the public eye. If a person who is injured by a nursing home’s negligence as their case resolved through arbitration, the press will never hear about it, and a Google search will not reveal the case.

Arbitration was meant as a tool for business to resolve disputes quickly and efficiently to avoid courts. However, the use of arbitration has expanded over the past 30 years, and has been increasingly used to deprive consumers, who have little legal knowledge, of their rights. Today, asking the elderly to sign arbitration agreements has become standard industry practice.

​The nursing home industry argues that arbitration is good for business. Industry insiders say that claims subject to arbitration settle for 7% lower total cost to the business and three months sooner than claims with no arbitration. On the other hand, trial lawyers and consumer-rights advocates argue that arbitration agreements deprive consumers of a right to a fair trial and public proceeding.

Why Arbitration Agreements are Bad for Nursing Home Residents

There are several problems with arbitration agreements from my perspective. First, in many instances nursing home residents do not know what they are signing. Elderly consumers may have varying degrees of dementia and are presented with page after page of documents to sign before they can be admitted. Some provisions are benign – the nursing home first may ask the patient to sign a “resident’s rights” document. But, the nursing home may also bury an arbitration agreement in the middle. These agreements are very complex with legalese. The nursing home resident is anxious to be admitted and is not thinking about the wording of every sentence. If the resident has Alzheimer’s or dementia, it is unconscionable to ask such a person to sign a complex contract. But it happens all the time.

Second, arbitration agreements are known to result in lower awards. Instead of a jury hearing your case, who may be outraged by the allegations of neglect, an arbitrator will hear the case. An arbitrator is usually someone with knowledge of insurance disputes or an attorney. These people may have become numb to injury claims and may be less likely to award a large amount of money to a claimant. Further, arbitrators are often chosen from a short list of regional professionals. The same arbitrator can decide cases involving the same nursing home over and over again. This incentivizes arbitrators to keep repeat clients happy and give more favorable decisions to repeat offenders. Studies show that awards to plaintiffs can be as much as 35 percent lower.

Third, arbitration has different rules. What might be considered hearsay in civil court may be admissible under the lax rules of arbitration. Speculation about the cause of a resident’s injuries would be more likely to be heard in arbitration than in a regular court, which typically only allows expert witnesses to opine on causation.
 
Virginia Law on Nursing Home Arbitration Agreements

Under Virginia Code § 8.01-581.01, “a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract.” Unfortunately, courts have held that Virginia law favors arbitration provisions. Bishop v. Med. Facilities of Am. XLVII (47) Ltd. P'ship, 65 Va. Cir. 187 (2004).

However, if you have a claim against a nursing home and are trying to invalidate an arbitration provision, here are a few possibilities:

• Agency – The nursing home resident did not sign the contract herself, and the family member, or nursing home employee, who did not have a valid authority to do so.
• Competency – The nursing home resident did sign the contract herself, but was not competent to do so at the time. The contract can be invalidated by showing that the person had dementia or Alzheimer’s at the time the contract was signed.
• Waiver – A nursing home may waive the right to arbitrate by litigating an issue covered by arbitration. For example, if the nursing home has filed a lien for unpaid medical bills, that may act as a waiver of the entire arbitration agreement.
• Fraud – A nursing home may have fraudulently induced a nursing home resident to sign a contract by misrepresenting the contents of the agreement or making untrue promises with respect to the agreement, the nursing home, or nursing home arbitration clause.

Invalidating a nursing home arbitration clause is a tough task. If you are pursuing a nursing home negligence case (or another claim against the nursing home), it is important to hire an attorney who as experience in dealing with arbitration agreements. If you or loved one has a question about a nursing home arbitration clause or nursing home abuse, please contact us and we'll try to be helpful.

By Stephanie Minkoff
 
The short answer is, yes, thanks to recent changes by the Virginia legislature to the common law security deposit statute § 55-225.19.

There are two sets of laws that govern residential leases: common law (for private landlords unless they have multiple properties) or the Virginia Residential Landlord and Tenant Act (mainly for institutional landlords, buildings, or private landlords with several properties). The Virginia Residential Landlord and Tenant Act (“VRLTA”) always had a provision for attorneys' fees (see § 55-248.15:1), but tenants renting from private landlords who were exempt from the VRLTA could not get their attorneys’ fees recovered in a lawsuit to related to the return of a security deposit.
 
For reference, the VRLTA protects tenant’s apartments, rental homes, and federally subsidized housing in many different ways by imposing requirements on institutional and large residential landlords (defined as three or more properties subject to a residential lease). For more information on the rights of tenants in Virginia, please see our recent blog post on the subject.
 
Let’s say you have just moved out of your rental apartment and you now want to collect the security deposit you paid at the start of your lease. In Virginia, your landlord is obligated to return your security deposit with or without any deductions, which should be itemized with written notice, provided by the landlord, within 45 days after the termination of the lease (for both common law and VRTLA leases). 
 
There are several reasons that your landlord may decide to withhold payment, including outstanding rent payments (including late fees as specified in the rental agreement), money to cover unpaid utilities, excessive wear and tear on the unit, etc., The landlord must provide written notice of such payment obligations. Tenants should make sure landlords have updated address information where security deposits can be mailed and returned. In situations where there is more than one tenant subject to the rental agreement, the security deposit will be returned, less any deductions, with one check made payable to all tenants to a forwarding address provided (unless otherwise previously agreed to in writing). 
 
According to § 55-225.19, obligations in regards to security deposits by the landlord include:

• Itemized record of all deductions made by reason of the tenants noncompliance with § 55-225.4 during the preceding two years; and 
• Permit a tenant or his authorized agent or attorney to inspect such tenant's records of deductions at any time during normal business hours.
• Upon request by the landlord to a tenant to vacate, or within five days after receipt of notice by the landlord of the tenant's intent to vacate, the landlord shall provide written notice to the tenant of the tenant's right to be present at the landlord's inspection of the dwelling unit for the purpose of determining the amount of security deposit to be returned. If the tenant desires to be present when the landlord makes the inspection, he shall so advise the landlord in writing who, in turn, shall notify the tenant of the time and date of the inspection.
• Following the move-out inspection, the landlord shall provide the tenant with a written security deposit disposition statement including an itemized list of damages. If additional damages are discovered by the landlord after the security deposit disposition has been made, nothing herein shall be construed to preclude the landlord from recovery of such damages against the tenant, provided, however, that the tenant may present into evidence a copy of the move-out report to support the tenant's position that such additional damages did not exist at the time of the move-out inspection.
• If the tenant has any assignee or sublessee, the landlord shall be entitled to hold a security deposit from only one party in compliance with the provisions of this section.

 
If you feel that your landlord has not complied with his/her obligations and has not returned your deposit appropriately, and you are unable to resolve the dispute informally, you may decide to take legal action against your landlord. While you may consider handling the dispute yourself, inside or outside of court, hiring a professional with expertise related to the specific landlord and tenant laws in Virginia, doesn’t have to be a huge expense. Professional legal assistance can make the difference in obtaining a favorable outcome and with the recent legislative changes you are also able to request your attorneys’ fees associated with the litigation to recover your security deposit.
 
Feel free to contact Steven Krieger Law if we may be helpful in your security deposit dispute. 

By Steven Krieger

Hiring a contractor for a renovation or remodel project is a major decision – some renovation or remodeling projects cost more than a new car.  Certainly, you want to interview several contractors and check the referrals to find one you feel comfortable with, but perhaps the most important piece of information to verify is the contractor’s license. 
 
A consumer (or anyone) may verify a contractor’s license by confirming with the Virginia Department of Professional and Occupational Regulation (“DPOR”). Unfortunately, there are individuals and business entities that claim to be licensed contractors, but do not actually hold a valid contractor’s license.  Just because the contractor has set-up an LLC or a Corporation (or simply put the LLC, Inc. or Corp. at the end of their name without properly setting up the business entity) to shield the individual owner from liability does not necessarily mean that the contractor has a valid license to perform contracting tasks.  A business license is not a contractor’s license.
 
Possessing a valid contractor’s license is critical because the Virginia Contractor Transaction Recovery Act provides relief to eligible consumers who have “incurred some type of loss through the improper or dishonest conduct of a licensed residential contractor” through the Contractor Transaction Recovery Fund.
 
Unfortunately, if the contractor is not licensed, the consumer homeowner is not able to seek relief through the Contractor Transaction Recovery Fund.  A consumer could certainly file a complaint with DPOR about an unlicensed contractor and “[i]f an investigation indicates the individual or business is not properly licensed, DPOR may take criminal action.”  But, criminal action does not necessary put any money back in the consumer homeowner’s pocket. 
 
Previously, I’ve written about the Virginia Consumer Protection Act (“VCPA”), which is a powerful tool for consumers because it allows consumers to recover reasonable attorney’s fees.  This is significant because a consumer may not want to engage an attorney to sue the contractor if the attorney’s fees are not recoverable from the contractor.
 
The VCPA identifies 54 different violations to help protect consumers in Virginia. Number 46 says that the following is unlawful: “[v]iolating the provisions of clause (i) of subsection B of § 54.1-1115.”  Virginia Code § 54.1-1115(B) states: “[a]ny person who undertakes work without (i) any valid Virginia contractor’s license or certificate when a license or certificate is required by this chapter.”
 
So, the question becomes: who is required to possess a license as “required by this chapter,” which is Chapter 11 Contractors from Title 54.1 Professions and Occupations.  Virginia Code § 54.1-1100 is the definition section of this chapter and defines a contractor and what license class (A, B, or C) the contractor is required to possess.
 
A contractor is defined as: “any person, that for a fixed price, commission, fee, or percentage undertakes to bid upon, or accepts, or offers to accept, orders or contracts for performing, managing, or superintending in whole or in part, the construction, removal, repair or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by him or another person or any other improvements to such real property. For purposes of this chapter, "improvement" shall include (i) remediation, cleanup, or containment of premises to remove contaminants or (ii) site work necessary to make certain real property usable for human occupancy according to the guidelines established pursuant to § 32.1-11.7.”
 
Based on this definition, the term “contractor” is pretty broad, so anyone who provides a consumer homeowner an estimate to perform any remodeling, renovation, or improvement work around your home likely falls into the definition of a contractor and is required to have some type of license – even if the “contractor” plans to sub out all of the work.
 
However, this is one exception: if the project is under $1,000, the contractor is not required to have a Class C license unless “the total value of all such construction, removal, repair, or improvements undertaken by such person within any 12-month period is less than $150,000.”  In other words, your handyman, who charges you $200 to repair a bit of drywall is not required to have a license – unless this handyman is really doing a lot of work during the year that exceeds $150,000.
 
If the contractor does not have a valid license, then the contractor may have violated § 59.1-200(A)(46) of the VCPA, which allows the consumer homeowner to file a complaint against the unlicensed contractor to recover whatever financial damages were caused by the contractor in addition to reasonable attorney’s fees (and potentially punitive damages if the violation was intentional).
 
Although, the consumer homeowner may not be able to recover financially through DPOR and the Contractors Recovery Fund from damages sustained by an unlicensed contractor, the VCPA does allow the consumer homeowner to recover from the unlicensed contractor.
 
If you’re a consumer homeowner struggling with an unlicensed contractor (or even a licensed contractor), please feel free to contact my office for a consultation. 

By Brian Silver
 
Arrest records can be a hindrance to an innocent person’s ability to obtain employment, receive an education, or establish credit. An expungement is used to seal all police and court records pertaining to a specific criminal case. While the records are not permanently destroyed, the public’s access to them is restricted. In Virginia, an individual’s right to expunge criminal records is governed by Virginia Code § 19.2-392.2[1] The statute details when an individual is eligible for an expungement, the legal components that a judge will use to determine the petitioner’s eligibility, and the steps an individual has to take in order to petition for an expungement.
 
After the record is expunged, you may legally deny the existence of the record. Additionally, you cannot be denied any permit, license, or employment based on the expunged record.[2] After expungement, the only time when another individual may be granted access to the record is when a law-enforcement agency needs the record for purposes of an employment application to work for the agency, or for a pending criminal investigation where life or property would be jeopardized without immediate access to the record.[3] If your record is expunged, you may also have the ability to expunge your DNA profile that was authorized due to the arrest.[4]
 
I. Am I Eligible for an Expungement?
 
You hold the right to petition for an expungement if any of the following circumstances apply; (1) you were acquitted of a crime;[5] (2) criminal charges against you were dismissed;[6] (3) the prosecution entered a declaration of nolle prosequi;[7] (4) someone else committed a crime using your identification information;[8] or (5) you received an absolute pardon.[9]
 
In order to be eligible for an expungement, you must maintain a claim of innocence for the crime you were charged with. However, an exception to the rule exists if you receive an absolute pardon.[10] After being found guilty of a crime, the state may later grant you a pardon in one of three manners; (1) a simple pardon, whereby the state officially forgives your crime; (2) a conditional pardon, whereby an individual who is still imprisoned may be eligible for early release; and (3) an absolute pardon, whereby the state officially recognizes your innocence. Only under the third scenario will you have the ability to petition for an expungement. If you plead nolo contendre, or “no contest,” you would not be eligible, as you would be pleading guilty for sentencing purposes.
 
II. How Does a Court Weigh the Merits of my Petition?
 
When considering whether to grant your expungement petition, a court will determine whether allowing your criminal record to remain public presents a “manifest injustice.”[11] While courts use several factors to draw its conclusion, demonstrating that the record’s publicity could harm your employment, educational, or credit prospects can assist in displaying that a “manifest injustice” is present. Additionally, in cases involving an acquittal, the decisions from each court involved in your case may be utilized. For example, a court may be more likely to expunge your record if you were acquitted by a trial court, rather than if you were found guilty by a trial court and later acquitted by an appellate court. If the court finds that disclosure of your record presents satisfies the criteria, your record will be expunged.
 
An exception to the “manifest injustice” standard exists if the record you are looking to expunge was for a misdemeanor charge and you otherwise have a clean criminal record. In this case, unless good cause for keeping the record disclosed is shown by the Commonwealth, you are entitled to have the record expunged.[12]
 
III. How Do I File a Petition?
 
1. First, you will need to file a petition with the appropriate Circuit Court in the city of county where your case was handled.[13] Three additional copies of your petition will be needed throughout the process, including one that you should keep as proof of filing with the court. Along with the petition, you will need to provide a copy of either the warrant or indictment with the court where the case took place.[14] The following must be included in the petition; (1) the date of arrest; (2) the name of the arresting agency; (3) the specific charge you wish to be expunged; (4) the date of the final disposition of the charge to be expunged; (5) your date of birth; and (6) your full name at the time of the arrest.[15]
 
2. The petition is then served on the Commonwealth Attorney (CA), who is the named Defendant.[16] Once the petition has been filed, a hearing is set approximately eight to ten weeks later on the Circuit Court’s civil motions docket.
 
3. The CA then has 21 days to respond to the petition upon being served.[17] The CA will state in its response that it either does or does not object to the expungement. If it does not object, then the scheduled hearing will simply consist of an order directing the judge to expunge the records. If the CA objects, a hearing will be held to determine whether the records’ disclosure presents manifest injustice to you.
 
4. During the time period between filing the petition and the hearing, you would need to obtain two copies of your fingerprints.[18] Unfortunately, the set obtained when the arrest occurred are not available for this process. New fingerprint cards can be obtained at the corresponding Sheriff’s Department, which are then sent along with a copy of your petition to the State Police.[19] The final copy of your petition is retained by the Police Department. The State Police run a criminal history report and mail the report back to the court. The fingerprints need to be obtained as soon as possible after you file the petition to prevent any delay in getting the report back to the court, as it usually takes four to six weeks for the court to receive the report from the State Police.
 
5. If the expungement is granted, the court's order is sent to the State Police, the entity responsible for expunging the records.[20] If the petition for expungement is denied, then the records continue to exist and be disseminated.
 
IV. Cost
 
The following are the costs for each expense incurred during the process:[21]

• Filing fee: $86
• Sheriff’s service fee for filing: $12
• Fingerprints: $15

If you are looking to expunge a record because someone else committed a crime using your identity, you are not required to pay the fee for filing the petition, though other fees still apply.[22]
 
You are not required to hire an attorney to file a petition for expungement, but it almost certainly
will be easier and more convenient.  Feel free to contact us.


[1] Virginia Code § 19.2-392.2.
[2] Virginia Code § 19.2-392.4(B).
[3] Virginia Code § 19.2-392.3(B).
[4] Virginia Code § 19.2-310.7.
[5] Virginia Code § 19.2-392.2(A).
[6] Id.
[7] Id.
[8] Virginia Code § 19.2-392.2(B).
[9] Virginia Code § 19.2-392.2(I).
[10] Virginia Code § 19.2-392.2(I).
[11] Virginia Code § 19.2-392.2(F).
[12] Virginia Code § 19.2-392.2(F).
[13] Virginia Code § 19.2-392.2(C).
[14] Id.
[15] Id.
[16] Virginia Code § 19.2-392.2(D).
[17] Virginia Code § 19.2-392.2(D).
[18] Virginia Code § 19.2-392.2(E).
[19] Id.
[20] Virginia Code § 19.2-392.2(K).
[21] Virginia Code § 17.1-275.
[22] Virginia Code § 19.2-392.2(B).

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).