How Do I Obtain a Copyright? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding copyrights. COPYRIGHT What is copyright? In simple terms, a copyright gives one the right to copy. A person that holds a copyright has the sole right to produce or reproduce a work or a substantial part of the work in any form. Copyright includes the right to perform the work or any substantial part of it. If a person’s work is unpublished, copyright entitles that person to publish the work or any substantial part of it. What does copyright protect? Copyright protects a person’s original artistic, dramatic, musical, and literary creations, and therefore prevents the creation from being legally copied, performed, or broadcast without the creator’s permission. It also protects software that is original. Importantly, copyright protects the expression of an idea, rather than protecting the idea itself. It is therefore unsurprising that copyright affects artists, athletes, and entrepreneurs, all of whom might express ideas in vastly different ways, but are nevertheless equally deserving of protection. Copyright commonly protects the following kinds of creative works: literary works, such as books, pamphlets, and computer programs; dramatic works, such as films, plays, screenplays, and scripts; musical works, such as musical compositions; and artistic works, such as paintings, drawings, and photographs. Copyright also protects sound recordings, radio waves, and performers’ performances. Why is it important to register one’s copyright? Copyright exists automatically once a person creates an original work or other subject-matter, provided certain conditions in the Copyright Act are met. A person’s creation thus receives some copyright protection even without registering it at the Canadian Intellectual Property Office. However, when one registers its copyright and subsequently receives a certificate of registration, the certificate provides proof that the copyright exists and that the person registered is the owner of the copyright. Proof of copyright can help to prevent lengthy court disputes in the future. How long does copyright protection last? Copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. This includes sound and video recordings, books, songs, poetry, and more. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer to obtain a copyright or have general questions pertaining to intellectual property law, please contact intellectual property lawyer, Frank Shostack at 416-446-5818 or frank.shostack@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyJanuary 8, 2020September 30, 2020
How are “deals” made on “Shark Tank” and “Dragon’s Den” valued when it comes to family law? This blog is co-written by our former articling student, Janet Son. The public got a behind the scenes look at how the deals made on reality television shows “Shark Tank” and “Dragon’s Den” really take place though Robert Herjavec’s family law case with ex-wife Diane Plese. The lengthy decision Justice Mesbur looked at how the “investments” Mr. Herjavec made on the shows are valued in relation to his Net Family Property. In 2003 Mr. Herjavec established a company called the Herjavec Group (“THG”) and during his appearances on the Shark Tank and Dragon’s Den, Mr. Herjavec caused THG to invest in some of the companies that were “pitched” during the episodes. The independent business valuators were tasked with determining the value of the Shark Tank and Dragon’s Den investments in order to value THG. There were two approaches: Mr. Herjavec’s valuators Duff & Phelps simply looked at the investment’s book value and Ms. Plese’s expert, Mr. Beaton predicted that at least one of the investments would turn a profit and made an “implied investment” calculation. However, Justice Mesbur found that the deals made on the reality shows are for entertainment purposes primarily and there is no real value or potential value of these investments besides the upfront amount already invested. Though there is a bidding process, offers made and final handshakes on the episodes, there are no binding contracts made between the Sharks/Dragons and the entrepreneurs. The usual due diligence takes place after the cameras finish rolling and the Sharks/Dragons then decide whether or not they still want to finance these companies. Oftentimes, the terms of the deal made while filming change drastically after this process. Justice Mesbur found there is no expectation of profit from any of these investments, therefore no expectation that they will increase THG’s value. In the end, the approach taken by Duff & Phelps to use the book value was accepted instead of the inflated value of their “potential growth”. If you have questions about how you or your spouse’s business and investments could be valued contact family lawyer Katelyn Bell at 416-446-5837 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawOctober 22, 2019September 30, 2020
I’m Getting a Divorce, What Are My Rights to the Family Business? When divorce is contemplated by either one or both spouses, often it is time to start thinking about the division of assets. This could include the matrimonial home, financial accounts, earnings accumulated during the marriage and as one might expect, retirement accounts also. That said and unsurprisingly so, countless married couples who in addition, become business partners, do not anticipate separation and as a result, make no formal arrangements concerning their business should the unexpected happen. Unfortunately, the lack of forward-thinking from the onset can become incredibly problematic, and in some cases subjecting the business to stagnation, as the breakdown in communication and lack of mutual agreement occurs between the two parties. So, what happens when you finally make the decision to divorce? – People often assume that divorce typically means all assets are divided equally, 50/50. Obviously, there are exceptions to this notion – for instance, if a property is in joint names and owned by each party as joint tenants, then indisputably each is entitled to half of the property in question. However, a jointly owned business is somewhat more complex, as generally, the resolution is rarely as straightforward as the previous example. There are a number of scenarios to which can be presented to married business partners: – Complete dissolution of the business and splitting the proceeds – Continue to jointly manage the business – An elected spouse keeps the sole proprietorship of the business and purchases the remaining shares. As you can imagine, this can be a tough decision to not only decide upon but one that both parties should endeavour to ultimately agree on together. Less challenging if the separation is amicable, which is why at Devry Smith Frank LLP, we understand the need for a comforting experience and the importance of promoting a smooth transition. Furthermore, the complexities don’t often halt there. – Outside the obligations to yourself, there are obligations to your employees, clients, suppliers, creditors and anyone else who may be considered a business shareholder. It is essential to seek guidance from experienced family and corporate legal professionals, who have extensive skills in helping to decipher both the family and business aspect, thus attaining a fair settlement for both parties. Your family lawyer will also be of assistance in improving your knowledge on your responsibilities and entitlements throughout the process. If you are thinking about dissolving a marriage and a business partnership simultaneously and you are concerned about what will happen to your family business, talk to one of our family lawyers today in our Toronto office location. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 and schedule a consultation today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawDecember 20, 2018June 15, 2020
How is the Money from the Sale of a House Divided in a Divorce? Family lawyer John Schuman was recently asked this question: I bought my home in 1995 and it became the matrimonial home when i married my husband in 2009. I’m filing for divorce now and selling the house. Is the money from the sale of the house split 50/50 or will I receive a bit more being the original owner of the house? My husband is on the mortgage as well. Answer by John Schuman: When married couples separate in Ontario, the home (or homes – there can be more than one) that they live in on the day they separate gets special treatment in property “equalization” process. (Non-married or common-law couples may not divide property or may do it differently.) Those special rules may make it seem that matrimonial homes are divided “50/50”, but that is not actually how it works. The property division provisions of Ontario’s Family Law Act do not give married people any right of ownership over their spouses’ property or other assets. If title to the matrimonial home is in your name, it stays in your name, subject to some claims your spouse can make if he or she makes significant contributions to that property. Just being married does not mean spouses both own their home (or homes). Watch this video for more details on how Ontario Law divides the value of property, not the property itself, on separation. There are a number of special rights that attach to matrimonial homes (or homes). One is that neither spouse can kick the other out of matrimonial home, or secure debt against a matrimonial home, without the other spouse’s consent or a court order. The reason people think they share the equity in matrimonial homes 50/50 is that, absent a marriage contract, the entire equity in a matrimonial home is always included in the value of assets that married spouses share. With almost every other type of asset, spouses only share in the growth in the value during the marriage. However, section 5(2) of the Family Law Act does not allow a spouse to get any credit for bringing a property into the marriage if that property was a matrimonial home on the date of separation. So, without a marriage contract, spouses share whatever value is in their matrimonial homes. Spouses do not necessarily have to give their spouses “half the house” on separation. That spouse is entitled to stay in the house, and to have the equity included in property division, but, if a home is not jointly owned, there is not right to “half of it.” It is just included in the assets to be divided. So, if the spouse who does not own the matrimonial home has lots of savings or a pension to include in his or her assets to be divided, that may offset the value in the matrimonial home. If the spouse who owns the matrimonial home had a lot of assets (other than the matrimonial home) on the date of marriage, his or her increases in net worth may be less than the other spouse, which would mean the home would not be divided. The same may be also be try if the spouse who owns the matrimonial home has a lot of debt on separation may not have the increase in net worth that is necessary to owe the other spouse anything. But, in short term marriages, there is a real danger that a spouse can walk away being entitled to half the other spouse’s home. If the marriage was short, the couple may still live in the same house that one spouse brought into the marriage. In that case, the spouse with the house has to share half the value of the house because there were almost no changes in each spouse’s financial situation and so nothing to offset the value in the matrimonial home when the spouses “Net Family Properties” are “equalized.” Watch this video or listen to this podcast, for more on the dangers posed by the law of matrimonial homes. Note that that the special rights for matrimonial homes only apply between two spouses. Those rights regarding matrimonial homes do not apply to third parties, such as in-laws, landlords, business partners, or friends. A spouse has no right under Family Law to stay in a home owned by his or her in-laws or another landlord. You certainly do not become entitled to “half” of a matrimonial home that neither spouse owns. People who think they should have rights with respect to a property that is not owned by them or their spouse should speak to a lawyer to see if any other type of law might help. Before or after a marriage, spouses should never assume that the matrimonial home will just be divided 50/50 until they have each spoken to a lawyer to figure out how Ontario Family Law will work in their family’s situation. This is an area where making a mistake can cost hundreds of thousands of dollars. There may be things a lawyer can do to make things fairer – especially before a separation. But even after separation, there may be possibility of making the tricky legal arguments to adjust how property is divided either pursuant to section5(6) of the Family Law Act or the Principles of Equity. Obviously, there can be a lot of money involved in any marriage or relationship and that means there can be a lot at stake financially. Get the help of a lawyer immediately to avoid financial hardship. You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a top family law lawyer. By Fauzan SiddiquiBlog, Family LawAugust 30, 2017July 5, 2023
Am I Liable For My Ex-wife’s RRSP Losses? Toronto Family Lawyer John Schuman was recently asked the following question: Is there any case law that would show I am not liable for any of the following losses? When applying for a divorce, you must fill out a financial statement. Before we were married my wife had RRSP’s that were called labour sponsored funds. They subsequently lost 90% of their value after we were married. I contend that I should not be liable for any of these losses. Answer: On the breakdown of a marriage (but not a common law relationship), spouses “equalize” their assets and liabilities and share, with some exceptions, the growth in their net worth during the marriage. This video explains “Equalization of Net Family Property” in greater detail. Many separating spouses can feel that the equalization process can be unfair – particularly where one spouse has spent money on stupid things, gambled it away, is getting a windfall due to the division of the matrimonial home, or it has been a very short marriage. In these and other situations, dividing up all property “50/50” can seem unfair. Section 5(6) of Ontario’s Family Law Act does allow a Court (or Family Arbitrator) to deviate from the usual equalization of Net Family Property and divide the family’s wealth another way. It accommodates all of the scenarios above and a few others. However, the test that the Family Court (or arbitrator) has to use is not whether the normal “equalization” would be unfair. Section 5(6) says that to deviate from the normal equalization, the Court must be “of the opinion that equalizing the net family properties would be unconscionable.” “Unconscionable” is much more than just unfair. The case law says that it means that the usual result must be “shocking to the conscious of the court.” That is much more than just unfair. One spouse spending a lot of money on an affair is not enough. A spouse spending too much is not enough. Justice Jennings put it this way: The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. Specifically on the issue of investment losses, the Courts have held that improvident (stupid) investing is not enough to justify an unequal division of net family properties. The investment must have been made recklessly or in bad faith. That means the spouse must have known, or should have known, that the investment would become worthless. Risky investing is not enough. The spouse must have acted deliberately to lose money or known that he or she was likely to lose money. That can definitely seem unfair – especially when one spouse is a conservative investor and one spouse is a high risk investor, or where one spouse’s savings have done really well and the other spouse’s investments have done poorly. But, fairness is not the test. Different opinions on finances can cause stress in, or event the end of, a lot of marriages. Where spouses have significant differences of opinion about money, they should consider getting a marriage contract. Spouses can get a marriage contract at any point during the marriage. They can keep a marriage together if one spouse wants to do something risky and the other one wants financial protection. This video explains how to protect yourself and save your marriage with a marriage contract. But, if you are separated now, it is likely too late for a marriage contract, and you have made one of the common family law mistakes. You should speak to an excellent Family Law Lawyer as the only way to correct this may be through spousal support, as section 15.2(6)(a) of the Divorce Act allows a judge to address the economic consequences of the marriage and its breakdown through spousal support. That can be through either awarding spousal support or reducing an amount of spousal support to reflect how the marriage affected the spouses financially. You can get a lot more information about Ontario Family Law issues, including support and property division, and most other common family law issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac, or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJune 30, 2017June 22, 2020
