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A Crash Course in Copyright Law, Part 3 (Exceptions)Legal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

A Crash Course in Copyright Law, Part 3 (Exceptions)

Published by Janet Gershen-Siegel on December 15, 2022

And Finally: A Crash Course in Copyright Law, Part 3 (Exceptions)

What are some exceptions to copyright infringement cases?

So, when is it all right?

Purdue University offers a terrific and very readable summary of the main known exceptions to copyright infringement claims.

Note: the law changes in every area. This blog is no substitute for talking directly with an experienced copyright attorney!

Fair Use

For the fair use defense, Purdue outlines four basic factors:

Purpose and character

Some specifics favor fair use. These include nonprofit, educational, and personal usages. Plus there are those which represent a potential tipping point.

These include teaching, research, scholarship, criticism, commentary, and news reporting. And there are those which favor needing permission. These include commercial, entertainment, and for-profit uses.

Hence, a nonprofit’s research is more likely to be fair use than a for-profit enterprise’s commercial use. Hence the for-profit business should seek the copyright holder’s permission.

Nature of work

To favor fair use, it should be a fact and/or published. But to favor needing permission, it should be a fiction and/or unpublished. E. g. It’s more likely to be fair use if you repeat a published fact about dinosaurs. Whereas you more likely need permission for an unpublished novel about vampires.

Amount

Small and insignificant bits of copying are more likely to be fair use than large ones representing a work’s heart. As a result, those are more likely to require permission.

Hence, if I copy the character of Millicent Bulstrode, then the character is minor and small. But this does not necessarily mean JK Rowling won’t sue me. Still, copying Hermione Granger is another matter entirely.

Market Effect

You’re more likely to be in the fair use realm if:

  • Licensing/permissions are unavailable or there is no major impact,
  • There is limited/restricted access to the work, or
  • The user or institution owns a legal copy.

But it’s different if there is a major impact, or licensing/permissions are readily available. Or the work has worldwide availability, or there is repeated or long-term use. Then the scale slides to requiring permission.

Profit and sales are not an element to this cause of action. Although selling the copied article, particularly multiple instances of it, can place the act into the ‘requires permission’ camp.

Exceptions for Face to Face Instruction

According to Purdue,

The traditional classroom or face-to-face instruction is when the instructor and the students of a nonprofit educational institution are in a place devoted to instruction and the teaching and learning take place at the same time. In this setting all performances and displays of a work are allowed.

Requirements:

  1. All materials must be legally acquired.
  2. Teaching activities must take place in a classroom or a similar place devoted to instruction.

Exceptions: Virtual Instruction

Like face-to-face instruction allowance, virtual instruction generally gets a pass, per Purdue University. However, there are some specifics. For example, the class must be a regular offering in the curriculum.

What about Parody Exceptions?

The American Bar Association notes the United States Supreme Court treats parody and satire separately. But the ABA feels it’s a distinction without much of a difference. Both are mockery. But satire is often more like commentary than outright mimicry.

For the ABA, and particularly when a work has both elements, the difference matters less. Although copyright holders might be more inclined to license satire rather than parody. This is because parody is pretty much a knockoff by definition.

Commentary generally falls under fair use. That commentary can be amusing or not, satirical or not. Copying generally isn’t fair use. But amusement and exaggeration blurs that line.

The best advice I can give you is: don’t make your work into a copyright test case.

In other words: be original!

And be sure to check out Part 1 and Part 2!

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A Crash Course in Copyright Law, Part 2Legal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

A Crash Course in Copyright Law, Part 2

Published by Janet Gershen-Siegel on December 13, 2022

Check Out A Crash Course in Copyright Law, Part 2

Want to learn more about copyright law?

How about infringement?

We are artists and that means we are copyright holders, even if we never assert our rights and never file with the copyright office. According to American copyright law, you own it if you made it. You don’t have to mail it yourself.

But to defend a case, in the US, you’ll need to register your work.

Infringement

However, I will only talk about American law. If you assert copyright in another country, the law will most likely differ. Furthermore, if you have any questions, ask me in the comments section. I will try to research and answer you in a timely fashion.

Or ask a copyright attorney. This area, like many areas of the law, has nuances and there can be changes. This blog is no substitute for good advice from an experienced lawyer. If you think you need to protect your rights, then do so properly. And that means hiring an attorney.

The United States Code

According to Title 17 of the United States Code:

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).

As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

But what the heck does that all mean?

The American Bar Association explains it better. It publishes a Young Lawyers series intended to help newly minted lawyers understand the nuances of complicated sections of practice. So the ABA explains:

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”

Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).  If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

So what is the ABA is saying? Registration with the US Copyright office isn’t necessary to successfully bring an infringement claim. But it’s awfully helpful.

If you think your work might be infringed upon, if you feel it is a danger and you are concerned about it, then get some peace of mind and register it with the US Copyright Office.

Next up? Exceptions!

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A Crash Course in Copyright Law, Part 1Legal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

A Crash Course in Copyright Law, Part 1

Published by Janet Gershen-Siegel on December 8, 2022

A Crash Course in Copyright

It’s time for a crash course in copyright law. Don’t worry; no one is going to make you practice law.

Seriously, you’re good.

Me, on the other hand? I’m a retired lawyer, admitted to the New York state bar, 1986. I never worked in the copyright field. However, I have read plenty about it, and of course I have my own legal training and experiences to fall back on.

If you have questions, I will try to answer them. Or contact a copyright attorney if you know one, and ask! Your questions won’t offend me.

Disclaimer

Do not infer or imply representation. If you’ve got a copyright issue, and you’re defending, or you think you should bring a lawsuit, I urge you to get legal representation as soon as possible.

American Copyright Law

For the purposes of these blog posts, I will only look at American law. The law differs outside the United States, it will be different. Copyright law is Federal, so jurisdiction rests with the Federal courts. It is a civil matter; no one goes to jail for copyright infringement.

Copyright Search

The United States Copyright Office exists as a part of the Library of Congress, founded in 1870. Want to find out if something has a copyright? Click the search page for the copyright office and be sure to select Other Search Options. If you think your search will pull up a lot of records, select 100 records per page from the pull-down menu to the left.

Make sure to be as specific as possible, but you might need to go less specific in order to be truly diligent. For example, a search for Sally Field’s character, Sister Bertrille, might not bring up anything. A search for Bertrille might give you something, but a better search would be for the television program the character comes from, The Flying Nun.

Here’s the copyright for the theme song to that series.

But most people could guess that Field’s role or at least the series has or had some form of copyright. But what, exactly, is copyright?

The Elements of Copyright

According to the US Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Per Section 106 of the Copyright Act of 1967, a copyright holder can:

  • reproduce the work in copies or phonorecords
  • prepare derivative works based upon the work
  • distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
  • perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Hence copyright holders have any number of rights in their own works. Can they allow others to use them? Absolutely! We call that a license.

When do copyrights expire?

Not surprisingly, the US Copyright Office has something to say about that.

Works Created on or after January 1, 1978 The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years.

and …

Works in Existence but Not Published or Copyrighted on January 1, 1978 The law automatically gives federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally computed the same way as for works created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending on the nature of authorship. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case would copyright in a work in this category have expired before December 31, 2002. In addition, if a work in this category was published before that date, the term extends another 45 years, through the end of 2047.

What does this mean? Well, the short answer is that you generally do better to publish your work! After all, you can’t expect anyone to guard against copying it if they don’t know it exists.

The other important takeaway: you don’t need to assert copyright or mail it yourself or anything like that. Does it help to register your work? Absolutely! And you’ll need it to defend a lawsuit.

If you ever doubt have concerns, do the legwork (or have your lawyer do so), and register your work.

More of the crash course later …

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Why You Can’t Charge for FanfictionLegal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

Why You Can’t Charge for Fanfiction

Published by Janet Gershen-Siegel on August 11, 2022

Do You Know Why You Can’t Charge for Fanfiction?

I enjoy fanfiction as much as, perhaps, the next person. But you still can never, ever charge for it. I implore you: don’t even try.

Seriously, put it out of your mind. Someone owns that copyright. And that someone is not you.

But aren’t there exceptions?

Yes, there are some. But they have limitations. Do not hang your hat on them. So first, let’s talk about why fan fiction is problematic.

There are Issues With This Form of Expression

For writers like you and me—and Stephen King and JK Rowling as well, etc.—we prepare our own universes. Some universes are familiar and take any number of real-life elements.

For example, King’s The Stand mainly takes place in more or less present-day America. King does not run into any copyright issues with New York City being New York City. Other places in the book, though, are more the product of his imagination. In Rowling’s Harry Potter universe, though, a lot more of the scenes were dreamt up by her.

For both authors, and for countless others, originality consists of creating a universe, creating characters, devising a plot, and then executing the plot in some fashion. Even in familiar settings, there is still scene setting and universe creation. But it’s more a function of subtraction that addition. That is, you don’t make New York City. You just take the Chelsea section of it.

But that’s not the case with fan fic. In fan fiction, another person (or persons) created the universe and the characters. Even when the fanficcer adds characters, the fictional world remains the original author’s creation. Hence one of the main issues with fan fiction is that it keeps the fanficcer from learning how to do that.

Fair Use and Other Exceptions to Copyright

Time to look at the law.

Per 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use:  

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.

Can You Use a Fair Use Argument?

Eh, not really.

So the sad old truth is that there are only a few ways to get around copyright. In general, you’re a lot more likely to be able to claim fair use if what you write is educational. This includes citing passages in scholarly works and articles.

If you’re writing an article about Star Trek, no one’s going to have a winning copyright case against you if you write “Live Long and Prosper.” Hell, they wouldn’t even have a good case against me right now, either. Educational, yo’. And, you might be able to argue that the phrase is a part of the general public lexicon now, much like “Live and Let Live”.

The “nature” bit in the law mainly refers to whether the source material is published. Published source material is more likely to be the foundation for fair use. With fan fiction, at least, that is virtually always the case.

Amount and substantiality is a kind of sliding scale. My writing LLAP, above, is tiny when you compare it to the vast array of Trek products, writings, and broadcasts out there.

Finally, the effect part can cover everything from whether the public would be deceived by a too-close copy to using the characters for out and out porn. And while even porn can sometimes that can be seen as parody, recognize that parody is often even harder to prove.

What About Saying You Don’t Want to Make a Profit, or Not Selling it?

Neither matter. 

You can write up disclaimers until the cows come home. But they have nothing to do with the above statute. As a result, this means you can be on the receiving end of a lawsuit even if you give your stuff away. Yep, even if you pay people to take it.

But as a practical and public relations matter, big rights holders are less likely to sue when it’s freebie fanfiction.

Why?

Because the last thing many large corporations want is for the press to turn it into a David and Goliath situation. And these corporations really don’t want to potentially lose and see their copyright get chipped away at. Also, these corporations know that most fan fiction isn’t too popular. So, why draw attention to it?

I’m not suggesting you have free rein, by the way.

Seriously, if Disney (for example), tells you to knock off with fanfiction, do yourself an enormous favor and do so. You do not have the House of Mouse’s deep pockets and access to a stunning array of experienced, high-priced attorneys.

Benefits of Fanfiction

It’s not all bad, of course. The biggest and most measurable benefit is that it keeps you writing. You can often spark creativity by simply being creative, that is, you write five or seven days per week, and you can fill up that writing time fairly readily.

But if you only write three times per month, you may find you have writers’ block when you make the infrequent attempt. There is something about the pressure of deadlines or at least the pressure of your own internal expectations. It helps to not have a blank page to stare at all the time.

There is nothing whatsoever wrong with borrowing another’s universe in order to keep writing and exercising the creativity muscle.

Just don’t try to sell it.

Do YOU know why you can’t charge for #fanfiction? Does it really matter? If you don’t want to be sued, it sure does! #amwriting

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Transitioning from FanfictionLegal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

Transitioning from Fanfiction

Published by Janet Gershen-Siegel on June 28, 2022

A Look at Transitioning from Fanfiction

If you first wrote in someone else’s universe, and now you want to claim your own, you may be transitioning from fanfiction.

Transitioning from Fan Fiction Writing to Wholly Original Writing

It’s more than just ‘filing off a few serial numbers’. In particular, wholly obvious plot conventions and details may need to be nixed completely. Transporter room, anyone? Tatooine? Two brothers fighting demons? A bunch of sparkly vampires? Yeah, you get the idea. You’ll probably need to change any of those radically.

How Writing Fanfiction Can Help You

It teaches you how to follow continuity. And it can keep you writing when you’re stuck. Writing begets more writing (even fan fiction!). So it pays to keep going. You are better off, in terms of preventing writer’s block, to just keep on writing. Hence, if all else fails, go with fan fiction. Of course there are plenty of places to post it online. Here’s one.

How Writing Fanfiction Can Hurt You

The problem is, it does not teach you how to make your own world. Hence it can hamper your growth in this area. Furthermore, if you are not used to making your own characters, it can hurt you there, as well.

Flip Your Perception

So consider what the foundational IP (intellectual property) does, and why it matters to you as you start the process of transitioning.

  • Interesting stories – spend some time deconstructing your favorites. Where did the writers hand-wave a problem away? Also, where did they get confusing? In addition, where did they deliver on the promise of their teaser/preview?
  • Compelling characters – why do the canon characters matter to you? Again, engage in some deconstruction. Forget who plays a character. So consider how you would feel about a character if someone else played them. Furthermore, consider how you would feel if the character’s gender and/or sexuality were swapped. Would you feel different if the character was of a race different from the current actor’s? Be your own casting director. Who, living or dead, could play the role better?

More Ideas

  • Fascinating scenes – even within a familiar place, commercial intellectual property exists inside its own bucket. It might be a city block, a hospital, a car driving across the country, or somewhere else. But what would happen if the scene shifted? Does the work succeed if it moves from Milwaukee to San Diego to Angkor Wat?
  • Action-driving plots – what kicks things off? If it’s a television program, what happened during the pilot? Did someone new move in? Did someone lose their job? Attend their own wedding? Have a kid? Graduate? Get arrested? Would the storyline still work if the pilot was different?
  • Believable effects, makeup, costumes, lighting, scenery, etc. – technology is a part of onscreen fiction writing. New techniques are constantly being invented. This helps studios save money but also enhance believability. What happens if an older show or film gets new makeup and green screening? Does that help the story, or harm it?

Finish Transitioning Over and Blaze Your Own Trail

For every exciting intellectual property out there, whether it’s books, films, YouTube videos, TV programs, or something else, it all started somewhere.

So what is your story? Who are your characters?

Who knows? Maybe someday someone will want to write fan fiction about your work.

Transitioning from fanfiction is easier than other types of transitions. So try it!

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Creative CommonsLegal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

Creative Commons

Published by Janet Gershen-Siegel on January 11, 2022

A Look at Creative Commons and Whether You Can Use Certain Images

What is Creative Commons?

Their story is best told by them:

Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.

But this is not copyright! Instead, the concept exists to work with copyright, in order to help you refine the rights in your work. Also, it can work to help you understand the nuances of rights in others’ works. But which others? Cover artists and songwriters, to name two.

Can I Use All of the Images That I Find Online?

Absolutely not. Just because you can right-click an image or take a screenshot does not mean you have the right to just take it. And do not get me started on wiping off someone else’s photographic watermark.

Just don’t do it. Don’t be a jerk.

It doesn’t matter if everybody else is doing it.

Currently, CC specifies six separate types of licenses. So be sure to click and read the specifics!

  • Attribution CC BY – this is the most open of the licenses. It allows others to do nearly anything to a creative work. “This license lets others distribute, remix, adapt, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.”
  • Attribution-ShareAlike CC BY-SA – this one is similar to CC BY. Except, it requires you attribute to the original artist. Wikipedia uses this one!
  • Attribution-NoDerivs CC BY-ND – you can pass along the work. But you can’t alter it. And you must credit the creator.
  • Attribution-NonCommercial CC BY-NC – you can alter the original work, but you must credit the original artist. Furthermore, you can’t make any money from the work.
  • Attribution-NonCommercial-ShareAlike CC BY-NC-SA – this one is the same as CC BY-NC. Except, you must license any new creations under identical terms.
  • Attribution-NonCommercial-NoDerivs CC BY-NC-ND – this is the most restrictive license, allowing for sharing. But attribution is required. Also, you cannot make any changes. Further, the sharer can’t make any money off the creative work.

Takeaways: What Does Creative Commons Mean to Us Writers?

Probably the biggest and most important way it matters is when we look for images for covers, or we hire a cover artist. If you don’t know where an image comes from, or you aren’t sure, change it. If the cover designer balks, then your remedy is clear.

Find another cover designer.

I recognize that covers in particular are rather expensive. You may be tempted to cut corners.

So, don’t come crying if someone does the same to you.

Creative commons also matters when it comes to music. Are you creating an author teaser trailer for YouTube? Is it monetized? If you’re not providing attribution as needed, or if you don’t have permission to use music, then don’t.

Here, the remedy can actually be pretty cheap. There are a number of public domain music sites out there. You’ll have to do some digging in order to determine which one is best for your purposes.

And finally, respect other artists—writers, singers, songwriters, musicians, artists, etc.—as much as you want them to respect you.

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Employer Access to Employee Passwords

Published by Janet Gershen-Siegel on September 21, 2021

Are employee passwords sacrosanct?

Er, maybe not.

Employee Passwords and the Laws that Cover Them

This post is a response to A Look at Employer Access to Employee Passwords.

Employee passwords have become a new battleground. Because this issue has begun to crop up, and it will only continue to do so.
So does your employer have a right to your social media passwords?

So before you reflexively say no, hold the phone. Because the truth is, unless the law expressly forbids it, companies can. They can take advantage of a less than stellar economy and less than powerful employees.

As a result, they can demand access into social media accounts and employee passwords. Hence a variety of bills have been introduced around the United States in an effort to address this matter.

Massachusetts

Let’s start with a look at Massachusetts.

First of all, here in the Bay State, legislation is pending. This includes H.B 448, which relates to student data privacy. It also includes, which relates to social media consumer privacy protection. And it includes S.B 1055, which relates to social media privacy protection.

Arkansas and Employee Passwords

Arkansas Ark. Code Ann. § 11-2-124; Code Ark. R. 010.14.1-500 says:

“Employers may not ask or require employees or applicants to disclose their user names or passwords to a personal online account; change the privacy settlings on their accounts…”

California and Employee Passwords

Much like Arkansas, employers can’t get into employees’ social media accounts. But an exception exists for investigations into misconduct, per Cal. Lab. Code § 980.

Colorado

Colorado’s law is Colo. Rev. Stat. Ann. § 8-2-127, which says:

“Employers can be fined up to $1,000 for the first violation and up to $5,000 for each subsequent violation.”

Connecticut

In Connecticut, the law is Conn. Gen. Stat. Ann. § 31-40x, which says:

“Employers can be fined up to $500 for the first violation and between $500 and $1,000 for each subsequent violation. Employees can be awarded relief, including job reinstatement, payment of back wages, reestablishment of employee benefits, and reasonable attorneys’ fees and costs.”

Delaware

And in Delaware, the law is Del. Code Ann. tit. 19, § 709A. It’s pretty similar to the law in Arkansas.

Illinois

So in Illinois, the law is 820 Ill. Comp. Stat. Ann. § 55/10; Ill. Admin. Code tit. 56, §§ 360.110, 360.120.

“If an employer violates the law, an employees and applicants may file a complaint with the Illinois Department of Labor.”

Louisiana

In addition, La. Stat. Ann. §§ 51:1951 to 51:1953, 51:1955 says:

“Employers may not request or require employees or applicants to disclose user names and passwords or other login information for their personal accounts.”

But in Louisiana, it’s okay for employers to push for a look into employee personal online accounts in one instance. This is if there are allegations of misconduct. So stop downloading porn at work!

And this is according to Nolo.

Maine

So in Maine, the law is Me. Rev. Stat. tit. 26, §§ 615 to 619.

“An employer that violates the law is subject to a fine from the Department of Labor of at least $100 for the first violation, $250 for the second violation, and $500 for subsequent violations.”

Maryland

So in Maryland, the law is Md. Code Ann., Lab. & Empl. § 3-712. The provisions are pretty close to those in Arkansas.

Michigan

And then in Michigan, the law is Mich. Comp. Laws Ann. §§ 37.271 to 37.278.

“Employers that violate the law can be convicted of a misdemeanor and fined up to $1,000. Employees and applicants may also file a civil claim and recover up to $1,000 in damages plus attorney fees’ and court costs.”

Montana

And then in Montana, the law is Mont. Code Ann. § 39-2-307.

“An employee or applicant may bring an action against an employer in small claims court for violations. If successful, an employee or applicant can receive $500 or actual damages up to $7,000, as well as legal costs.”

Nebraska

Then in Nebraska, the law is Neb. Rev. Stat. Ann. §§ 48-3501 to 48-3511. This is another law like the one in Arkansas.

Nevada

But in Nevada, the law is Nev. Rev. Stat. Ann. § 613.135. This one is very short but it specifically includes blogs.

Employee Passwords in New Hampshire

Furthermore, N.H. Rev. Stat. Ann. §§ 275:73 to 275:75 says:

“Employers may not require employees or applicants to change the privacy settings on their email or social media accounts or add anyone to their email or social media contact lists.”

But just like in Louisiana, Granite Staters will have to provide a look-see if there are any misconduct accusations flying around.

New Jersey

Then in New Jersey, the law is N.J. Stat. Ann. §§ 34:6B-5 to 34:6B-10. So it says:

“Employers that violate the law are subject to a fine of up to $1,000 for the first violation and up to $2,500 for each subsequent violation from the New Jersey Labor Commissioner.”

New Mexico

So in New Mexico, the law is N.M. Stat. Ann. § 50-4-34. This one specifically extends to friend lists.

Oklahoma on Employee Passwords

In addition, when it comes to employee passwords, Oklahoma’s Okla. Stat. Ann. tit. 40, § 173.2 says,

“Employers may not require employees or applicants to disclose passwords or other information that provide access to personal online social media accounts or require employees to access personal social media in the presence of the employer. A social media account is an online account used exclusively for personal communications and to generate or store content, including videos, photographs, blogs, instant messages, audio recordings, or email.”

So this is according to the National Conference of State Legislatures.

Oregon

Then in Oregon, the law is Or. Rev. Stat. Ann. § 659A.330. This is another law like the one in Arkansas.

Rhode Island

Furthermore, per R.I. Gen. Laws §§ 28-56-1 to 28-56-6:

“Employees and applicants may file a civil lawsuit for violations. The court can award declaratory relief, damages, reasonable attorneys’ fees and costs, and injunctive relief against the employer.”

So this is beyond the standard where an employer can’t just take a peek whenever they feel like it.

Tennessee on Employee Passwords

And per Tenn. Code Ann. §§ 50-1-1001 to 50-1-1004:

“Employers may not ask or require employees or applicants to disclose passwords to personal online accounts.”

Utah

So in Utah, the law is Utah Code Ann. §§ 34-48-101 to 34-48-301. So it says:

“Employees and applicants may file a civil lawsuit against the employer for violations, with a maximum award of $500.”

Virginia and Employee Passwords

So in Virginia, the law is Va. Code Ann. § 40.1-28.7:5. It’s not too far off from Arkansas, but an employer can get employee passwords under the guise of an investigation.

Washington (State) on Employee Passwords

So in Washington State, the law is Wash. Rev. Code Ann. §§ 49.44.200 and 49.44.205. So it says:

“Employees and applicants may file a civil lawsuit against the employer for violations and obtain injunctive relief, actual damages, a penalty of $500, and reasonable attorneys’ fees and costs.”

West Virginia and Employee Passwords

So in West Virginia, the law is W. Va. Code Ann. § 21-5H-1, another Arkansas clone, more or less.

Wisconsin on Employee Passwords

And then in Wisconsin, per Wis. Stat. Ann. § 995.55:

“Employees and applicants may file a complaint with the Wisconsin Department of Workforce Development for violations and receive appropriate relief.”

Other States on Employee Passwords

In addition, Maryland became apparently the first state to consider the matter, per the Boston Globe, in 2012. Furthermore, according to the National Conference of State Legislatures, several bills have been proposed around the country.

However, aside from the ones listed above, only the following states seem to have these laws. Then according to the National Conference of State Legislatures, there are also such laws in Guam and the District of Columbia.

The bottom lines is that these bills come up repeatedly.

Finally, the country still has a long way to go in terms of guaranteeing employees privacy in social media accounts. Hence we all need to look out more. In addition, it might end up a good idea to just out and out refuse when asked for passwords.

Facebooker, beware.

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