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The Difference Between Empathy and Sympathy in Negotiation (And Why It Matters)

Posted: November 25th, 2019

The Chinese general and military strategist Sun Tzu famously wrote that the “supreme art of war is to subdue the enemy without fighting.” Using empathy at the negotiation table is the modern-day embodiment of this strategy.

A fundamental human need is to feel accepted, validated, and understood by others. This reality means that negotiation strategy is really about psychology. To get from Point A to Point B, the skilled negotiator must exploit psychological principles – and this means empathy must play a role.

Many negotiators view empathy and sympathy interchangeably, and dismiss both as weak. Don’t confuse empathy with sympathy! The difference is subtle but critical. Listen for the difference:

Sympathy: “I understand how you feel. I feel terrible for you.”
Empathy: “I understand how you feel, and I understand why you feel that way.”

What’s the difference? Merriam-Webster defines sympathy as the “inclination to think or feel alike,” a “feeling of loyalty,” and the “tendency to favor or support” – in essence, agreement. Sympathy almost never has a place at the negotiation table. In the negotiation of a business deal or at settlement discussions, few clients would want to hear their lawyer say to their adversary, “I get it – I agree it’s terrible what you went through. So here’s the check you asked for.” The sympathetic negotiator may not be much of a negotiator.

But the empathetic negotiator approaches things differently. Consider the Merriam-Webster definition of empathy: “the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings thoughts, and experience of another.” The use of “vicariously” is critical here: unlike the sympathetic negotiator, the empathetic negotiator understands her adversary’s position, but doesn’t actually experience it or necessarily agree with it. Instead, she uses empathy to let the adversary know that she hears and understands him. By tuning into her adversary’s emotions instead of just the words, the empathetic negotiator shows that she “gets it,” which helps the adversary open up and share additional information that the empathetic negotiator can use to her advantage. Think, “I get it – I understand why you feel that way. So what if we…”

Think how much more effective a negotiator you can be if you understand what’s important to your opponent and the factors that got him there. Rather than taking a shot in the dark about what might work or keeping the focus solely on you (or your client), when you understand your adversary and use his own views to shape the conversation, you can strategize around that and go a lot further, a lot faster.

Too many negotiators are hell-bent on appearing authoritative, unflinching – like the “tough guy,” willfully ignorant of the forces shaping the other side. But that’s an incredibly weak negotiation strategy. Using empathy as a tool to make your adversary keep talking and feel comfortable is key to letting the other side get what you want.

Leadership and Law: Historic Examples of Leading American Lawyers

Posted: September 26th, 2019

By: Patrick McCormick, Esq. email

Published In: The Suffolk Lawyer

Tags: management

In honor of this year’s 50^th anniversary of the historic Apollo 11 Moon Landing, it seems appropriate that Americans look to the past, not only to see how far we’ve come, but to realize how extraordinary some of the achievements of our forebearers were and to inspire us to similar feats of excellence and innovation in the future. Those who exhibit excellence and innovation, who exhibit a leadership which shows humanity what they could and should be, can be found in every walk of life and every field of study. Perhaps some of the clearest examples of leadership can be found in the diverse history of America’s lawyers.

From the colonial era through the present day, American lawyers have been leading the way in utilizing the law to create a more just and equitable society. They took unpopular, even dangerous positions at times, knowing that to lead is to follow your conscience. Whether that is by using the law as training for the political arena and presidential leadership as Abraham Lincoln did, or asserting their own rights under the law at a time when this was controversial as Margaret Brent did, or through arguing landmark cases as Thurgood Marshall did, there are many ways American lawyers have historically shown leadership.

Many American lawyers have shown leadership through the practice of the law itself. Margaret Brent (1601-1671) became the first colonial woman to appear before a common law court in her duties as the Governor’s attorney and executrix of his will in 1648. She also requested a voice in the assembly and two votes, one as a landowner in her own right and one as the Governor’s attorney. John Adams (1735-1826) represented the British soldiers accused of murder at the Boston Massacre in March 1770, despite both his objections to British actions towards the colonies and his own fear of tarnishing his reputation, believing that everyone should get a fair trial. Thurgood Marshall (1908-1993) had a long and distinguished career arguing civil rights cases, starting with Murray v. Pearson (1934) and culminating in Brown v. Board of Education of Topeka (1954). His success provided a legal basis for arguments that separate but equal was unconstitutional and helped pave the way for the Civil Rights Act of 1964. The actions of these lawyers were strictly within the law, their stage was the courtroom and yet their words set lasting precedent for women’s rights, civil rights and the belief that the law should be impartial and just to all.

American lawyers have also shown leadership by applying the law outside the courtroom. Henry Clay (1777-1852) had his own legal practice for over 50 years but was also a U.S. Senator, Representative and Secretary of State. He was influential in developing the early U.S. legal system as distinct from but built upon the English tradition, and his debate, oratory and compromise abilities helped prevent the Civil War for several decades. Richard Henry Dana, Jr. (1815-1882) joined the Merchant Marines in his youth and eventually specialized in maritime law but was also a distinguished writer. In his Two Years Before the Mast (1840), a memoir from his years at sea and an American classic, he brought the plight of sailors to the public’s attention. Belva Lockwood (1830-1917) became the first female attorney to be allowed to practice before the U.S. Supreme Court. She also ran for president in 1884 and 1888 – the first woman to appear on official ballots – and drafted an anti-discrimination bill passed by Congress in 1879. From applying law to the political sphere to the field of writing and to women’s rights, these American lawyers were also leaders outside the courtroom.

Finally, some American lawyers have led by acting outside the law, only to be vindicated by history and time. Perhaps we could point to Abraham Lincoln (1809-1865), who suspended habeas corpus in 1861 and 1862 to preserve the Union and was retroactively granted the power to do so by Congress in 1863. Or we could speak of Lyda Burton Conley (1869-1946) who challenged the government in Court over the sale of the Huron Cemetery in Kansas City. The first attorney to argue that burial grounds for Native Americans should be entitled to federal protection, when she lost the case, she and her sisters took to guarding the cemetery themselves against all trespassers. In 1916, with the support of the Kansas Governor, the Huron Cemetery was established as a federal park.

There are as many ways to exhibit leadership as there are ways in which to practice and apply the study of law. What is clear is that law and progress are inextricably bound together, and that American lawyers hold a unique place in their ability to utilize the law to lead America into the future.

Thank you to Michelle Toscano for her research and writing assistance with this article.

When to Call it Quits in Negotiation

Posted: August 29th, 2019

By: Joe Campolo, Esq. email

Tags: negotiation

When it comes to negotiation, sometimes you have to just walk away.

When a negotiation is going well, and you and your adversary have reached a win-win (or at least a win-not lose) deal, it’s obvious when to stop negotiating. But when a negotiation turns tense or difficult, how do you know when to push through and keep going, or stop and move on? Here are some signs it’s time to call it quits.

1. “It’s just not fair!”

It’s human nature for negotiators to determine their preferred outcome, then justify it based on fairness. A recent blog post from the Harvard Law School Program on Negotiation gives a great example: the Winklevoss twins’ case of “settler’s remorse” after receiving a $65 million settlement from Facebook. Arguing that Facebook had cheated them out of hundreds of millions of dollars, the twins waged an expensive and time-consuming battle based on dubious legal grounds to undo the settlement, claiming to be motivated not by money but by fairness.

The alleged pursuit of fairness can be a slippery slope. As the Harvard blog points out, say you’re splitting up with your business partner. Of course, you feel that you deserve a bigger slice of the pie, because you invested more money. But your partner feels that she deserves a bigger slice – because she invested more time. Our natural egocentrism can destroy a negotiation. If the negotiation has hit a wall because you or your adversary are claiming unfairness, take a step back. Ask a colleague or mentor for an objective reality check. It may be time to consider your opponent’s perspective more carefully – or move on.

2. You’re negotiating with the devil (or so you think).

Disputes can drag out over long periods of time – lasting months or even years. With each passing day, frustrations rise, impatience grows, and it becomes easier for the parties to stop seeing the humanity in each other and instead start to demonize each other. Ask yourself honestly: are you continuing to fight it out because you think you can get a better outcome, or because you want to stick it to your opponent? There’s tenacity, and then there’s obsession. In this situation, it may be helpful to ask a trusted advisor or colleague for an honest assessment about whether this fight it still worth pursuing.

3. No one’s budging.

Sometimes in a tense negotiation, no matter how much you prepared beforehand or how carefully you’ve determined your BATNA, a deadlock occurs and the parties simply cannot reach an agreement. When this happens, take some time to reconsider your own position and make sure you are actively listening to the other side’s concerns. (See some other tips here.) The deadlock may be a temporary setback that can be overcome. Still no movement? It may be time to walk away.

These difficult scenarios demonstrate why success in negotiation depends so strongly on your understanding of the psychological principles at play across the table. You owe it to yourself to prepare thoroughly and to keep in mind that a final resolution might not occur in the first round of negotiations. Calling it quits is a last resort, not a first.

The Second Circuit Declines to Extend the U.S. Supreme Court’s McDonnell “Official Act” Reasoning to the Foreign Corrupt Practices Act

Posted: August 23rd, 2019

Published In: The Suffolk Lawyer

Tags: international

In 2016, in McDonnell v. United States, the U.S. Supreme vacated the former Virginia Governor’s bribery conviction by limiting the definition of what constitutes an “official act.” Critics argue the McDonnell decision legalizes, or at least substantially shields, public corruption and has already served to overturn (at least temporarily, in the case of former New York Assembly Speaker Sheldon Silver) convictions of other public officials. However, in a decision likely welcomed by good governance advocates, on August 9, 2019, the U.S. Court of Appeals for the Second Circuit declined to extend the McDonnell “official act” requirement to Foreign Corrupt Practices Act (FCPA) prosecutions, affirming the conviction of Chinese real estate developer Ng Lap Seng.

On June 7, 2018, the U.S. District Court for the Southern District of New York (Broderick, J.) ordered Ng to serve concurrent 48-month prison terms after a jury convicted him of paying and conspiring to pay bribes in violation of 18 U.S.C. Sections 371, 666, and the FCPA, 15 U.S.C. Sections 78dd-2 and 78dd-3. Ng, a billionaire real estate tycoon, paid more than $1 million to two United Nations diplomats to secure a U.N. commitment to use Ng’s latest Macau-based hotel and convention center as the site for an annual U.N. conference.

The prosecution’s evidence at trial was detailed and overwhelming. For instance, in exchange for monthly payments of $20,000 for alleged services rendered to one of Ng’s media companies, one U.N. diplomat and cooperating witness testified his “salary” was in fact bribes to secure for Ng not only general U.N. support for using the convention center, but also a formal documented commitment to do so. In another instance, the then-President of the U.N. General Assembly travelled to Macau with U.N. staff to visit the convention site in exchange for a payment of $200,000 to the Office of the President of General Assembly. The diplomats secured official letters and other records of ambassadorial support for Ng’s project and an early commitment to hold the annual conference at Ng’s facility. Diplomatic efforts to finalize the U.N.’s commitment to the convention center were abandoned in September 2015 following Ng’s arrest.

The bulk of Judge Raggi’s opinion addressed Ng’s argument that his conviction under 18 U.S.C. Section 666, which criminalizes theft or bribery concerning programs receiving federal funds, cannot stand because the U.N. is not an “organization” within the meaning of the statute. Judge Raggi used precedential, textual, and historical analysis to hold that public international organizations, such as the U.N., are covered by Section 666 before moving on to Ng’s McDonnel challenge. That the court, however, may have buried the lead as its holding regarding McDonnell’s application to the FCPA is arguably more significant than its holding regarding the U.N. falling within Section 666’s definition of an organization.

Ng argued the FCPA requires proof of an official act satisfying the McDonnell standard and the district court’s jury instruction failed to satisfy that standard. At issue in McDonnell was whether “arranging a meeting, contacting another public official, or hosting an event—without more—concerning any subject, including a broad policy issue such as Virginia economic development,” qualified as an “official act” as defined by 18 U.S.C. Section 201(a)(3). In holding these actions did not qualify, the Supreme Court reversed McDonnell’s conviction and identified two requirements in the statutory text to prove an official act under Section 201: first, the government must identify a “pending” question, matter, proceeding, or controversy that involves the “formal exercise of governmental power.” Second, the government must prove the public official took an action on that pending matter. Ng argued not only did the district court not properly instruct the jury, but the facts at trial did not prove an “official act” by the U.N. diplomats.

Judge Raggi begins with the premise that there is no universal statutory definition for what constitutes a “bribe,” but at the very least all involve a quid pro quo. However, not all federal statutes define the “quo” in the same manner, much less an “official act” of Section 201. The court reasons the very existence of different quos across related statutes demonstrates Congress did not intend all bribery or corruption-related laws to be treated identically to Section 201. Judge Raggi easily dispensed with Ng’s arguments vis-à-vis Section 666, as the Second Circuit in United States v. Boyland previously held McDonnell’s “official act” standard for the quo component of bribery does not apply to the “more expansive language of Section 666, which nowhere mentions “official acts.”

With respect to the FCPA, the court acknowledges the first quo references an “act or decision” of a “foreign official in his official capacity,” the FCPA does not cabin “official capacity” acts or decisions to a definitional list akin to Section 201’s understanding of official acts. According to the court, the FCPA is broader and includes, for instance, acts or omissions that violate an official’s “duty” or affect or influence the act or decision of a foreign government. Judge Raggi also observes the FCPA prohibits bribing a foreign official to “secure an improper advantage” in obtaining, retaining, or directing business without requiring the advantage be secured by an “official act.”

By declining to extend the McDonnell requirements to the FCPA, the Second Circuit is reinforcing the reasoning of its sister courts holding the “official acts” requirement of Section 201 does not bleed into other statutory anti-bribery regimes, including the FCPA. While prosecutors may find it more difficult to convict conventional domestic political bribery in a post-McDonnell world, corporate executives subject to the FCPA’s broad, extraterritorial reach cannot become complacent, particularly as the DOJ seeks ever more to hold individuals criminally liable for acts of international business corruption.

Getting the Home (or Away) Team Advantage in Negotiation

Posted: July 24th, 2019

By: Joe Campolo, Esq. email

Tags: negotiation

You’ve heard all about the importance of preparation, knowing your BATNA, active listening, and other critical tools to maximize your chances of success in any negotiation. But negotiators often overlook a vital aspect of deal-making that could make or break their success: the location.

If you think a conference room is just a conference room, think again. Location means far more than the pictures on the wall and the wood color of the table. Whether your exchange takes place in your own office, on your adversary’s property, or at a neutral site – and even if the location isn’t ultimately up to you – you can still take steps to gain an important advantage.

THE HOME TEAM ADVANTAGE

Just as most sports teams prefer to compete on their own turf, most negotiators probably prefer to compete in their own location. As the host, a negotiator can gain control over the negotiation before it even begins.

First, the host gets to select the room in which the conversation will take place. To many, this seems like a mindless task, but to a successful negotiator, room selection and setup requires consideration. The right location depends on what you’re trying to accomplish. Will the negotiation be relaxed and friendly, or perhaps more serious and competitive? From there, you must consider the features of your room, what mood they may elicit in your opponent, and alter them if needed.

The Décor: It’s unrealistic that you’d change the décor of a room each time you have a meeting, but depending on the mood you want to set, you can choose intelligently between your conference room, your own private office, or elsewhere. To set the stage for a friendly negotiation, choose a more homey space with cupboards or bookshelves; this setup can help relax your adversary and give the impression that you’re looking for a win-win outcome. Or are you looking to show your opponent that he or she is in for a tough debate? Choose a site with an “ego wall,” complete with your awards and framed newspaper clippings. This setup not only creates a competitive, almost intimidating atmosphere, but also showcases your confidence – and appearing confident might even help you gain you a greater level of respect and give you an easier time getting what you want.

The Seating Arrangements: Just like the room’s décor, the seating arrangements should differ based on your strategy. Trying to strike a friendly tone? Consider putting the seats closer together and more offset than directly head on. Setting up for a more formal meeting with multiple parties? Create distance between the chairs and set them more head on. The distance will lessen the chance of emotional reactions while the head-on direction helps establish a more competitive atmosphere.

The Lighting: Insufficient lighting has been found to contribute to moodiness and depression, while bright lights can heighten emotions. A 2014 study found that people with access to natural light will have a greater sense of overall wellbeing than those without windows. Is your dark conference room stifling the discussion? Try switching to a different room with abundant natural light.

Drinks: Just as with lighting, research has shown that even the temperature of certain food and drinks can affect a person’s overall mood. Some researchers believe that the temperature of an object we hold in our hands impacts how we perceive the world around us at that moment. So if you have a tense negotiation on your hands, you may want to offer hot coffee instead of a cold soda.

SUCCEEDING AS THE AWAY TEAM

Being the “away team” at a negotiation can be intimidating – you are unsure what the negotiation environment will be, you will have fewer (if any) of your colleagues nearby, and the only resources at your disposal are those you brought with you. Nevertheless, many aspects of being the away team can give you a level-up on the competition.

Gather As Much Information As You Can: On site at your adversary’s business? Take advantage of the opportunity to look around for any clues that might help you negotiate. Perhaps the condition of equipment, number of employees, or other observations can be used to help you later.

Radiate Confidence: Remember, your competitor is in their comfort zone. You were willing to travel to their home. With that, you are showing confidence in your negotiation skills and position. Remind yourself that if you didn’t think you would triumph, you wouldn’t have wasted your time traveling.

Limited Resources May Be a Good Thing: You should never show up to a negotiation ill-prepared, but as the visiting team, you can always buy time with the excuse that you don’t have certain information on hand. Take the position that your host has no just reasoning as to why he or she can’t explain a claim or back up a position with evidence – all the files are right there. Don’t be shy about pointing that out.

Just Move It: Maybe your competitor set up the room with his or her own comfort in mind, but who says you can’t change it? If you are uncomfortable with the seating arrangements in the negotiation room – the chairs are too far apart or there is a light shining in your eyes – just move your chair. You’ll get more comfortable and project confidence.

A NEUTRAL SETTING

Meeting at a neutral location? There are still steps you can take to steer things your way:

Background Noise: Are you expecting a challenging and lengthy negotiation? Consider a quiet setting such as a hotel conference room; a pause in conversation will be met with silence, which both conveys seriousness and could even prompt your adversary to keep talking to avoid awkwardness. Want to set a calmer tone and put your opponent at ease? Suggest a restaurant with a bit of background noise, which will allow for natural breaks in the negotiation.

The Impression: How important is this deal to you and your competitor? If this negotiation is key to your success, show that by suggesting an upscale environment.

The takeaway: if you haven’t adequately prepared for the negotiation or mastered the emotional principles at play at every negotiation table, the diplomas on the wall and the location of your chair won’t save you. But smart negotiators play up every advantage they can. As the saying in the real estate industry goes, “Location, location, location.” Don’t underestimate its importance in your next negotiation!

Perils of Joint Bank Accounts in Estate Planning

Posted: July 17th, 2019

By: Martin Glass, Esq. email

Tags: elder law, estate planning

Many of my senior clients want to be able to transfer their assets to their children in the simplest and quickest way possible when the time comes. Often, people think a joint account is an easy and inexpensive way to avoid probate by automatically passing property to the joint owner at death. Unfortunately, estate planning usually isn’t as simple as opening a joint account. While there are benefits, there are also many risks.

With a joint bank account, multiple people can be granted access to the money in the account. Primarily this type of bank account is used by married couples, civil partners, and housemates as the account holders can pay into the account, withdraw cash, pay bills, or write checks.

I often tell my clients that there are two scenarios in which a joint account typically works well (but not even these are risk-free). First, if you have one child and wish for everything to go to him or her, a joint account could provide a convenient succession path. Second, a joint checking account could make sense if you wish for your children to pay only your customary bills and to have access to a small portion of your funds in the event of death – since these working accounts don’t usually consist of the bulk of your estate.

Sounds pretty simple so far. So what are the risks?

Consider you create a joint account by adding your eldest child to the account. Don’t assume that he or she would consult with your other children every time before taking money from your account. There isn’t even a guarantee that your child will handle your money exactly in the way you would prefer. Too often, I have seen children (from even the closest of families) who are caring for their parents take money in payment without first making sure that their siblings are all on board. Even worse, they may use the money for their own purposes.

Another risk, particularly if you have multiple children, is that there may end up an inequitable distribution of your money upon your death. You might expect all your children to share equally, but there is no guarantee. Adding multiple children to a joint account might seem like a way to avoid this risk, but having several different children on different accounts is nearly impossible to manage and usually just multiplies the risk.

In addition, once a child is added on a joint bank account, the money becomes an asset for both parties. I know that sounds obvious, but I have to remind my clients that if the child comes across creditor or legal problems, the creditor could garnish the entire bank account. In other words, your account may be frozen or lose funds. You may be thinking that your child doesn’t have creditor problems, but what if he or she gets into a car accident or is on the receiving end of a lawsuit? These unpredictable instances only further the cons of joint bank accounts.

Moreover, I advise my clients to consider the extremes. What would happen if the child passed away before the parent? A grandchild could be left with only a fraction of what they were supposed to get and what was a non-probate asset would become a probate asset – divided up as per the Will.

Fortunately, there are simple ways to avoid these undesirable outcomes and still allow someone else to have access to your funds. Wills, revocable trusts and durable powers of attorney are great planning tools that minimize the risk. They specify that your estate will be distributed according to your wishes and provide for a simple asset management in the event of your incapacity.

If you or anyone you know is considering a joint account or is in the process of estate planning, please feel free to contact us for assistance.

Estate Planning and Digital Assets

Posted: July 1st, 2019

By: Martin Glass, Esq. email

Tags: elder law, estate planning, technology

When you consider your estate planning, you might think the existence of a simple Will is all you need to transfer of all your assets. If this is the case, you are overlooking a vital piece of your property: digital assets.

In today’s digital world, estate planning is becoming increasingly complicated. Say you take a picture using your phone and store the image on the memory card. If you give all of your tangible personal property to your heirs, which would include your phone (and therefore the memory card), does that include all the files on that card? What if you posted the picture on Facebook or some other media; would you own the rights to the picture itself, or would Facebook? This complexity is not only present when it comes to the ownership of images, but with all sorts of digital assets: Word documents, electronic mail, online access to bank accounts, social media accounts; the list goes on.

In the past, the service providers of these digital assets controlled who would have access to your assets after you pass. Consequently, personal representatives faced conflicts when trying to administer a decedent’s estate.

Currently, New York laws define which digital assets are considered digital content and restrict personal representatives from receiving automatic access to such information. For example, a personal representative can access your digital calendar more easily than your emails, because while your emails are considered content, your calendar is not. Although these regulations are in effort to protect your personal privacy, they could restrict anyone from accessing your digital assets, and your online files could become lost.

To protect your digital assets and ensure that a personal representative will not face challenges when accessing them, it is crucial that you discuss the assets in your Will while explicitly granting access of all online accounts to the designated person. Prepare a list of all your usernames and passwords, and keep it as current as possible, so that in the event of your death, the person in charge of your estate has access.

Too often do people fail to recognize the necessity of properly passing on the right to their digital assets. To make sure this doesn’t happen to you, plan your estate with the help of a qualified professional. To discuss how to best protect your assets, please contact us.

Intellectual Property Concerns for Businesses Using Social Media

Posted: June 24th, 2019

Tags: intellectual property, technology

The internet has become a powerful presence in our lives, especially in how we use it to communicate. Social media in the form of social networking is now included in millions of Americans’ daily activities, is integral to how most of us now search for and obtain jobs, and even influences how we conduct business. Consequently, it has become commonplace for businesses to use various social media platforms to conduct polls, contests or sweepstakes among employees, interact with customers and potential customers, and spread brand awareness. Users can and do copy and paste pictures, songs, videos, documents, or even links to webpages onto a business’s profile to share via social media.

Different social medial platforms are available to help companies manage these various online activities, making them both simple and quick to organize for any company’s marketing department. Furthermore, social media marketing is an easy, cost-effective and wide-ranging way for businesses to reach new customers.

However, intentionally or unintentionally associating your business with the intellectual property of another may bring about liability for trademark, copyright, and other types of intellectual property infringement. Below is a guide to intellectual property issues businesses should consider.

What constitutes intellectual property infringement on a social media platform?

Several types of infringement can result from associating your business with the intellectual property of another. There can be trademark infringement if a company requests user-generated content from their employees which includes photos or videos and those photos or videos contain third-party trademarks in the background, on signage, or on clothing (i.e., the Nike logo). This can arguably lead to a false association claim by suggesting that the trademark owner supports the company-sponsored event. If a trademark is used in a way that tarnishes the reputation of the trademark owner (i.e., being associated with drugs, pornography and other illegal actions), there could be potential liability for trademark dilution. (This explains why clothing logos are sometimes blurred out on TV shows.)

Copyright laws can also be infringed upon if user-generated content contains copyrighted material such as art, music, photos, or quotes without proper referencing. Unless the user creates their content, obtains permission from the copyright owner, or their content is in the public domain, direct copyright infringement may result. Although a company might successfully argue that any unauthorized content was either “de minimis” (small or brief enough so as to be insignificant) or “fair use” (the promotion of freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances), it is far easier for a company to simply prevent any claims of infringement altogether.

The right of publicity can also be violated when social media accounts tied to a particular business publish the name or likeness of a person for commercial purposes, without obtaining their permission. This can become relevant if a video or photo contest submission features individuals other than the employee who entered the contest. Depending on the nature of the social media site, an argument can be made that the submission was not being used for commercial purposes; however, a sponsor or business may have liability if the video or photo is used in an advertising campaign, on television, or in a print ad.

What can your business do to mitigate liability for intellectual property infringement?

Staying up to date on intellectual property laws is extremely important in this era of social media. Intellectual property law and social media is an intersection of emerging concern for lawmakers, lawyers, business owners, and consumers alike, because the existing laws were written prior to the mainstream use of social media. Therefore, staying abreast of all current developments is vital in making sure your business remains compliant with the law.

There are also some specific ways your business can avoid potential intellectual property liability. All online contests, sweepstakes, and polls must contain official entry rules detailing: the exact nature of the relationship between business, social media platform and entrants; eligibility for entry; the steps that need to be taken to enter; and the prizes available to be won. This creates a limited “contract” and specifies that any videos or pictures will not be used for commercial purposes. Furthermore, clear content submission guidelines should be provided which include general prohibition of using third-party materials, or depicting any activity which would violate the law, is obscene, lewd, vulgar or defamatory, involves violence, drugs or alcohol, is dangerous, is disparaging to competitors, or is in any other way inappropriate. (This list is not exhaustive; if your business is promoting a contest or sweepstakes, please contact us to discuss the official rules to avoid running afoul of gambling laws, which vary by state.)

If a business wishes to use social media submissions in an advertising campaign, the rules for entry submission should clearly state what would violate copyright and trademark laws or the company should obtain copyright ownership interest, prior permission or a perpetual license for use. The company should also examine the submitted social media content prior to any advertising, promotional or other commercial use for any images or videos that may contain third-party celebrities, famous logos, quotations not in the public domain, or anything else which might require consent and release to use.

Due to the present gray areas in intellectual property law, and with market competition requiring businesses to protect their brand image, companies should be vigilant toward any potential trademark, copyright, patent, right of publicity or privacy, or trade secrets infringements, and be careful not to infringe on the rights of others, especially on social media platforms. For your specific intellectual property concerns, please contact our office.

Long Island’s Aerospace Industry: 50 Years on from Apollo 11

Posted: June 21st, 2019

Tags: technology

By Michelle Toscano

This year marks the 50^th anniversary of NASA’s Apollo 11 moon landing, an event of particular significance for Long Islanders. Astronaut Neil Armstrong’s voice from the surface of the moon saying, “That’s one small step for man, one giant leap for mankind,” perfectly sums up the historic and extraordinary quest of the Apollo program “to boldly go where no man has gone before.” It was a quintessentially American challenge of discovery and exploration, an unparalleled feat of engineering and physics, the advent of practical computer technology and software programming…and Long Island was at the heart of it all.

In 1962, at the height of the space race and NASA’s desperate push to land Americans on the moon, Bethpage-based Grumman Aircraft Engineering Corp. won the NASA contract to design and construct the Lunar Excursion Module (LEM) for the Apollo program. The LEM was the strangely-shaped spacecraft which actually landed on the lunar surface, and from which Neil Armstrong took his first historic step. The lucrative 350 million-dollar NASA contract brought immediate and profound effects to Long Island, creating thousands of new jobs and a sense of purpose and pride to Grumman employees. Yet this wasn’t the first time Long Island was at the forefront of the aerospace industry.

Long Island has long been known for its importance in the history of aviation and flight. Called the Cradle of Aviation for its numerous air fields and aircraft production facilities, particularly during World War II, Long Island housed training centers for pilots, was the home of three major airfields – including Roosevelt Field where Charles Lindbergh departed from in his trans-Atlantic flight aboard the Spirit of St. Louis in 1927, and Curtiss Field where Amelia Earhart and other women founded the International Organization of Women Pilots in 1929 – and during the “Golden Age” of aviation (1918-1938), an astounding 20 aircraft manufacturers alone were established on Long Island. By 1945, over 100,000 people on Long Island worked in the aircraft industry and today over 240 companies on Long Island still work in the aerospace industry.

“The known limits of flight were expanded regularly in the skies over Long Island” (article here) and so it is no surprise that when Americans turned to spaceflight, the unknown frontier, it was Long Island’s aviators who led the way. The LEM, which was designed and created entirely on Long Island, was the first manned spacecraft to operate wholly in the airless vacuum of space and remains, to this day, the only crewed vehicle to land anywhere beyond Earth. It was used throughout the Apollo program and remains the jewel in Grumman’s resume.

It might not have “made the Kessel Run in less than twelve parsecs” like Han Solo’s Millennium Falcon, but it was the astronauts’ “only hope” during that fateful Apollo 13 mission, providing life support and propulsion for the crew in order to return them safely to Earth, and was the most reliable component of the entire, combined Apollo and Saturn-rocket space vehicle throughout the Apollo program. It was furthermore the only part of the spacecraft to never have a systems, engine or component problem which could not be resolved in time to prevent aborting a landing mission.

Fifty years on from Apollo 11, Long Islanders can take pride in the extraordinary achievements of their neighbors and forebearers and honor their commitment to pushing back the boundaries of the unknown as pioneers in the field of aerospace.

Quotes are attributed to Neil Armstrong, Star Trek, Cradle of Aviation Museum and Star Wars.

Michelle Toscano is a paralegal and legal researcher at CMM. She can be reached at mtoscano@cmmllp.com.