Nonprofit Legal Check Up Helping Nonprofit Organizations Understanding

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Nonprofit Legal Check Up Helping Nonprofit Organizations: Understanding Their Legal Issues Presented by: So.

Nonprofit Legal Check Up Helping Nonprofit Organizations: Understanding Their Legal Issues Presented by: So. Relle Brown - Employment Special Counsel, Sutherland David Zimmerman – Corporate Partner, Sutherland Matthew Gries - Tax Partner, Sutherland Jim Johnson - Intellectual Property Counsel, Sutherland December 9, 2014 © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta.

Nonprofit Legal Check Up www. pbpatl. org Agenda Employment Corporate Tax Intellectual Property ©

Nonprofit Legal Check Up www. pbpatl. org Agenda Employment Corporate Tax Intellectual Property © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 2

Nonprofit Legal Check Up www. pbpatl. org Employment – Topics Applicable Laws Worker Classification

Nonprofit Legal Check Up www. pbpatl. org Employment – Topics Applicable Laws Worker Classification Employee v. Independent Contractor Employees v. Volunteers Exempt v. Non-exempt Pre-Employment Compliance Employee Handbooks/Policies Volunteer Policies and Procedures Record Retention & Employment Taxes © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 3

Nonprofit Legal Check Up www. pbpatl. org Employment Applicable Laws* 1 -2 Employees: Fair

Nonprofit Legal Check Up www. pbpatl. org Employment Applicable Laws* 1 -2 Employees: Fair Labor Standards Act (FLSA); independent contractor laws; Occupational Health and Safety Act (OSHA); unemployment; new hire reporting 10 Employees: Georgia E-Verify requirements 15 Employees: Title VII (Civil Rights Act), Pregnancy Discrimination Act (PDA), & Americans with Disabilities Act (ADA); Genetic Information Nondiscrimination Act (GINA) 20 Employees: Age Discrimination in Employment Act (ADEA) & COBRA for benefits 50 Employees: Affordable Care Act (ACA); Family and Medical Leave Act (FMLA) and FLSA lactation accommodation * There additional rules for federal contractors © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 4

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification What is an “Employee”?

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification What is an “Employee”? Job-by-job inquiry Alternative workers such as Independent Contractors, Volunteers, and Interns √ Benefits: flexibility, not covered by FLSA, unemployment compensation laws, workers’ comp, certain taxes √ Risks: back taxes, back wages, contributions for unemployment insurance, lost benefits, fines and penalties © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 5

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Employees vs. Independent Contractors

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Employees vs. Independent Contractors Some factors: √ √ Actual or “right to” control Skill/independent judgment required Source of instrumentalities/tools Services rendered integral part of principal’s business © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 6

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Employees vs. Independent Contractors

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Employees vs. Independent Contractors (cont. ) Compliance and maintaining independent relationship √ √ √ Written agreement Payment by project, rather than per hour (if possible) Allow IC to control details and schedule/provide equipment Avoid IC doing similar jobs as regular employees Periodic review for compliance © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 7

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Employees vs. Volunteers Integral

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Employees vs. Volunteers Integral to many nonprofits Critical: performance of task with no promise or expectation of compensation Interns and minors Employees as volunteers: √ Truly voluntary √ Activities different from employee’s (or another employee’s) regular duties √ Not volunteering during regular work or overtime hours © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 8

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Exempt vs. Non-exempt -

Nonprofit Legal Check Up www. pbpatl. org Employment Worker Classification Exempt vs. Non-exempt - wage and hour issues FLSA: √ Sets a national minimum wage and √ Governs overtime payments for employees in certain job classifications Non-exempt employees: covered by minimum wage and OT regulations “White-Collar Exemptions”: employment in a “bona fide” executive, administrative, professional, computer, or outside sales capacity © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 9

Nonprofit Legal Check Up www. pbpatl. org Employment Pre-Employment Compliance Application and interview process

Nonprofit Legal Check Up www. pbpatl. org Employment Pre-Employment Compliance Application and interview process Background checks, E-Verify, & Fair Credit Reporting Act Employment agreements/offer letters Terms of compensation © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 10

Nonprofit Legal Check Up www. pbpatl. org Employment Discipline and Separation Documentation of performance

Nonprofit Legal Check Up www. pbpatl. org Employment Discipline and Separation Documentation of performance and discipline Review of adverse decisions before demotion or separation Separation procedures and Georgia DOL-800 notice of separation Releases and unemployment benefits © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 11

Nonprofit Legal Check Up www. pbpatl. org Employment Employee Handbooks What is the goal

Nonprofit Legal Check Up www. pbpatl. org Employment Employee Handbooks What is the goal or purpose? Important policies: Employment-at-will/handbook acknowledgement EEO/non-harassment Avenues for employee complaints Standards & rules of conduct Attendance, benefits/leaves/pay Other policy areas: discipline, computer usage, confidential information © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 12

Nonprofit Legal Check Up www. pbpatl. org Employment Volunteer Policies and Procedures Reasons for

Nonprofit Legal Check Up www. pbpatl. org Employment Volunteer Policies and Procedures Reasons for volunteer rules & policies Conduct, duties, rights & responsibilities Background checks Liability releases © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 13

Nonprofit Legal Check Up Employment www. pbpatl. org Record Retention and Documentation Personnel Files

Nonprofit Legal Check Up Employment www. pbpatl. org Record Retention and Documentation Personnel Files Medical records I-9 forms Time records Posters Employment Taxes Federal & State Employment Taxes, FICA, SUTA, not FUTA http: //www. irs. gov/Charities-&-Non-Profits/Charitable-Organizations/Section-501(c)(3)Organizations-FUTA-Exemption. Personal liability for Responsible Parties including board members Personal Liability for Responsible Parties Including for board members © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 14

Nonprofit Legal Check Up www. pbpatl. org Corporate & Tax Interaction Three overall requirements

Nonprofit Legal Check Up www. pbpatl. org Corporate & Tax Interaction Three overall requirements Organization must be “organized” under the Georgia Nonprofit Code (or similar state code) as a nonprofit corporation Organization must be qualified as a “Tax-Exempt” under Internal Revenue Code Organization must be operated in compliance with both Georgia nonprofit and federal tax-exempt law. © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 15

Nonprofit Legal Check Up www. pbpatl. org Legal Form GA Non-Profit Corporation Act No

Nonprofit Legal Check Up www. pbpatl. org Legal Form GA Non-Profit Corporation Act No owners or shareholders – organized for the benefit of society Articles of Incorporation and Bylaws Purpose/Mission Statement Nonprofit Corporations may have “Members” Subsidiaries/Affiliates Small nonprofits rarely © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 16

Nonprofit Legal Check Up Board Structure & Governance www. pbpatl. org Organization’s activities must

Nonprofit Legal Check Up Board Structure & Governance www. pbpatl. org Organization’s activities must be consistent with the stated tax-exempt purpose Importance – IRS Permanent Records Corporate Minute Book Accounting Records Board Duties of Care, Loyalty and Obedience Limitation of Liability and Indemnification D&O Insurance Board Committees, Officers, etc. Beware of “Founderitis” © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 17

Nonprofit Legal Check Up www. pbpatl. org Board Governance (cont. ) Board Policies and

Nonprofit Legal Check Up www. pbpatl. org Board Governance (cont. ) Board Policies and Procedures Conflicts of Interest Recusals & Written disclosures Ethics and Business Conduct Codes Whistleblower Record Retention Financial & Internal Control Policies Executive Compensation Documented process, comparability data, independence © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 18

Nonprofit Legal Check Up www. pbpatl. org State Corporate Filing & Transparency Requirements State

Nonprofit Legal Check Up www. pbpatl. org State Corporate Filing & Transparency Requirements State Annual Registration For each state in which the organization does business Updates to Officers and Registered Agent Charitable Solicitations Act – GA File Form C-100 http: //sos. ga. gov/acrobat/Securities/forms_2006/C 100. pdf Other states / website donations Level of minimum contacts Multistate filing option GA Ethics in Government – registering lobbyists Raffles – State Law; County Application © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 19

Nonprofit Legal Check Up Tax-Exempt Background www. pbpatl. org “Nonprofit” v. “Tax-Exempt” Nonprofit status

Nonprofit Legal Check Up Tax-Exempt Background www. pbpatl. org “Nonprofit” v. “Tax-Exempt” Nonprofit status – state law concept Separate Internal Revenue code requirements to be tax-exempt Many Categories – common types include: (c)(3) “charitable” organizations (c)(4) social welfare organizations (c)(6) business leagues (trade associations) (c)(7) social clubs Today’s presentation will cover the “ 501(c)(3)”. Benefits include exemption from federal income tax, eligibility to receive charitable contributions, state and local tax benefits, postal rate reductions. All clients participating today are recognized by the IRS under § 501(c)(3) of the Internal Revenue Code © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 20

Nonprofit Legal Check Up www. pbpatl. org The “ 501(c)(3)” Organization Exempt Activities –

Nonprofit Legal Check Up www. pbpatl. org The “ 501(c)(3)” Organization Exempt Activities – charitable, educational, religious, scientific, literary, fostering national or international sports competition, preventing cruelty to children or animals, and testing for public safety Charitable: includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 21

Nonprofit Legal Check Up www. pbpatl. org Interplay of § 170 of Internal Revenue

Nonprofit Legal Check Up www. pbpatl. org Interplay of § 170 of Internal Revenue Code With limited exceptions (e. g. , gifts to states), only donations given to organizations recognized as § 501(c)(3) organizations are deductible as a charitable donation under § 170 of the Internal Revenue Code © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 22

Nonprofit Legal Check Up Donation Substantiation www. pbpatl. org Charity Acknowledgement Written Acknowledgement –

Nonprofit Legal Check Up Donation Substantiation www. pbpatl. org Charity Acknowledgement Written Acknowledgement – required for any single contribution of $250 or more before donor may claim charitable deduction. Must contain statement that no goods or services were provided in exchange for the contribution, if that is the case. Best practice: Charities give donation receipts for all cash donations Written Disclosure – required for payment in excess of $75 partly as contribution and partly for goods or services provided by the organization, explaining portion that is deductible. E. g. , dinners, donation above ticket price For in-kind donations, simply acknowledge the item donated without providing a value unless a substantial item – then appraisal needed and additional IRS forms © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 23

Nonprofit Legal Check Up www. pbpatl. org Donation Substantiation & Deductibility Donor Recordkeeping No

Nonprofit Legal Check Up www. pbpatl. org Donation Substantiation & Deductibility Donor Recordkeeping No tax deduction for contribution of cash, check, or other monetary gift unless donor retains record of the contribution or a written communication from the charity Contribution of Services – NOT DEDUCTIBLE Most donated space is not deductible © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 24

Nonprofit Legal Check Up www. pbpatl. org Internal Revenue Code - Exempt Organizations §

Nonprofit Legal Check Up www. pbpatl. org Internal Revenue Code - Exempt Organizations § 501(c)(3) Test: Must be ORGANIZED & Must be OPERATED Exclusively For Exempt Purposes Limitations: Not An Action Organization No Inurement No Substantial Private Benefit § 509(a) Public Charity v. Private Foundation © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 25

Nonprofit Legal Check Up www. pbpatl. org Tax-Exempt-Related Issues All clients are established 501(c)(3)

Nonprofit Legal Check Up www. pbpatl. org Tax-Exempt-Related Issues All clients are established 501(c)(3) organizations Compliance Requirements – Ongoing “Operations” Classification The organization must continue to satisfy the criteria for continued classification as a § 501(c)(3) organization. If a publicly-supported charity, must satisfy the “public support” test by receiving broad-based support from members of the general public. √ All the clients participating in the Nonprofit Legal Check Up are public charities. © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 26

Nonprofit Legal Check Up www. pbpatl. org Limitations: Not an Action Organization Political Activities

Nonprofit Legal Check Up www. pbpatl. org Limitations: Not an Action Organization Political Activities May not support or oppose a political candidate running for public office. Any amount of political activity can result in loss of tax-exemption Face of Organization – involvement in political activities Excessive Lobbying “Legislation” is action by Congress, state legislature, local council or similar governing body, or the public in a referendum, initiative, constitutional amendment or similar procedure. © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 27

Nonprofit Legal Check Up www. pbpatl. org Limitations: Not an Action Organization (cont. )

Nonprofit Legal Check Up www. pbpatl. org Limitations: Not an Action Organization (cont. ) Excessive Lobbying (cont. ) An organization is lobbying when it engages in either: Direct Lobbying (“Dear Congressman, please vote no on HR 2000”): √ Communication refers to specific legislation (i. e. , legislation that has already been introduced or a specific legislative proposal); √ Communication reflects a view on such legislation (“oppose HR 2000”); and √ Direct communication with any member or employee of a legislative body or government official who may participate in the formulation of legislation. Grass Roots Lobbying (“Please contact your Congressman and tell him to oppose HR 2000”): √ √ √ Communication refers to specific legislation (i. e. , legislation that has already been introduced or a specific legislative proposal); Communication reflects a view on such legislation (“oppose HR 2000”); and Communication encourages the recipient to take action with respect to such Legislation (“Call to Action”) (“Please contact your Congressman”). Permitted for a public charity so long as it is not engaged in “substantial lobbying. ” 501(h) Election © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 28

Nonprofit Legal Check Up www. pbpatl. org Limitation: No Inurement Private Inurement Insiders prohibited

Nonprofit Legal Check Up www. pbpatl. org Limitation: No Inurement Private Inurement Insiders prohibited from receiving benefits greater than she or he provides in return (e. g. , excessive compensation, loans at below market rates, etc. ) Insiders = founders, officers, directors, anyone with control/influence over organization during the past 5 years, and certain family members and affiliated companies “Intermediate Sanctions” for violations Excess Benefit Transaction involving an insider Rebuttable presumption of reasonableness © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 29

Nonprofit Legal Check Up www. pbpatl. org Limitations: No Substantial Private Benefit A tax-exempt

Nonprofit Legal Check Up www. pbpatl. org Limitations: No Substantial Private Benefit A tax-exempt organization must serve a public not private interest Organization cannot benefit a charitable class that is too small Can apply to disinterested or interested parties Incidental private benefit Examples of Potential Substantial Private Benefit Co-Venturer agreements (§ 43 -17 -6 Charitable Solicitation Act) Other arrangements with individuals or taxable entities Contracts with Professional Fundraisers/Grantwriters © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 30

Nonprofit Legal Check Up www. pbpatl. org Income Taxable Activities - UBI Unrelated Business

Nonprofit Legal Check Up www. pbpatl. org Income Taxable Activities - UBI Unrelated Business Income Trade or business Regularly carried on; and Not substantially related to mission Exceptions and Exclusions to UBI Volunteers, Contributed Property, Benefit of members Royalties (affinity cards and mailing lists), Dividends Qualified Corporate Sponsorships Name, logo, tagline Insubstantial return benefit Issue for Nonprofits trying to be creative with fundraising Form 990 T/ Georgia 600 T © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 31

Nonprofit Legal Check Up Tax-Exempt Means Exemption from Income Tax Only www. pbpatl. org

Nonprofit Legal Check Up Tax-Exempt Means Exemption from Income Tax Only www. pbpatl. org Taxed Activities Sales & Use – State tax Definition of “goods and services” Just because are income tax-exempt, does not mean are exempt from sales and use tax Exemptions: √ GA Code § 48 -8 -3 (e. g. resale items) Employment Taxes Property Taxes – depends upon state/county authorities Purely charitable activities © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 32

Nonprofit Legal Check Up www. pbpatl. org Annual Tax Information Return – Form 990

Nonprofit Legal Check Up www. pbpatl. org Annual Tax Information Return – Form 990 Federal Filing Requirement Small: If gross receipts < $50, 000 file Form 990 -N (e-Postcard) Medium: If gross receipts < $200, 000, and total assets <$500, 000 file Form 990 -EZ Large: If gross receipts > $200, 000 OR total assets >$500, 000 file Form 990 Due Date – 15 th date of 5 th month after accounting period ends (if calendar year, then May 15 th) Form 990 must be made available to the public No social security numbers on Form 990 – cannot be redacted © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 33

Nonprofit Legal Check Up Annual Tax Information Return (cont. ) www. pbpatl. org Federal

Nonprofit Legal Check Up Annual Tax Information Return (cont. ) www. pbpatl. org Federal Tax Filing Requirements (cont. ) Penalties (for failure or incomplete or incorrect filings) Normal - $20 per day (capped at lesser of $10, 000 or 5% of gross receipts) >$1 Million gross receipts - $100 per day (capped at $50, 000) Failure to File Rule - If fail to meet annual filing requirements for 3 consecutive years, IRS will revoke tax-exempt status Exempt – Certain organizations (most notably churches) are exempt from filing requirement State – in Georgia, must (i) file IRS Form 990 with Georgia Dept. of Revenue, and (ii) file GA Form 600 -T (along with IRS Form 990 -T) if have unrelated business taxable income © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 34

Nonprofit Legal Check Up Intellectual Property What is Intellectual Property (IP)? Trademarks, Copyrights, Patents,

Nonprofit Legal Check Up Intellectual Property What is Intellectual Property (IP)? Trademarks, Copyrights, Patents, Trade Secrets Focus: copyrights & trademarks Why should a nonprofit care about IP? Reach constituents and fulfill mission (software, websites, promo/educational materials, etc. ) Protect investment in programs, products, and “brands” (e. g. , names of programs and orgs) Avoid infringement! © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 35

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Trademarks/Service Marks Examples: Words,

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Trademarks/Service Marks Examples: Words, symbols, slogans (including program or organization names) Trademarks should be searched prior to use Rights vest in those that use the trademark Rights can be registered at the federal and/or state level (but not always necessary) Notice = TM or SM or ® once registered at PTO © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 36

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Without a Search, the

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Without a Search, the Client can get Into an Expensive and Burdensome Infringement Dispute and may be Forced to Re-brand Federal Registration Most Useful if the Client Operates in Multiple States (otherwise Common Law Rights from Usage or State Registration may be Enough) © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 37

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Copyrights Examples: text, photo,

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Copyrights Examples: text, photo, recordings, educational materials, manuals, songs or software code Rights vest in the author, not the entity Except for works created by employees within the scope of their employment Rights can be registered at the federal level only Notice consists of “Copyright © 2014 John Doe” Rights of Publicity – photos, videos, recordings © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 38

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Registration Does Not Create

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Registration Does Not Create Copyright – It Exists Automatically Registration is Most Useful Where Unauthorized Copying and Distribution Would Be a Real Problem for the Client Registration Does Not Determine Ownership Agreements Should Address Ownership Up Front (except employees in the scope of employment) © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 39

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Websites IP Issues Creator

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Websites IP Issues Creator of materials and website owns the copyright by default (need IP assignment provision in dev agreement) Owner of website / domain name (deal with in agreement) Inclusion of logos from other businesses w/o permission Text copied from other organizations without permission Use of songs, photos, etc. without permission (don’t assume fair use, public domain or ok with attribution) Use of another’s name or likeness (Right of publicity/privacy) Best Practice is to buy, license or create own content on websites and all other materials © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 40

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Licensing Components: Exclusivity, Territory,

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits Licensing Components: Exclusivity, Territory, Scope of Rights, Assignment, Payment, Audit Rights, Post-Termination Rights (Inbound and Outbound Licenses) Quality Control - for TM’s (e. g. among affiliates) √ “Naked Licensing” w/o QC Can Result in Loss of TM Rights √ Not Just A Legal Requirement, But Can be a PR Problem for Nonprofits (Need to Avoid Scandals and Damage to Reputation) © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 41

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits COPPA Include provisions in

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits COPPA Include provisions in User Agreements and/or Privacy Policy to address COPPA Social Media – Facebook, Twitter, etc. Reputation Management (defamation) and TM Infringement Most Common Issues To Monitor Need Policies for Employees to Follow © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 42

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits User Agreements and Privacy

Nonprofit Legal Check Up Intellectual Property Common Areas for Nonprofits User Agreements and Privacy Policies to Reduce Various Liability Risks (e. g. donor info) Must Follow These Policies Fully Disclose How PII is Used Limit liability for Content and Other Activities Make Users Responsible for Their Own Content and Activities © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 43

Nonprofit Legal Check Up www. pbpatl. org Questions? © Copyright 2014. All rights reserved.

Nonprofit Legal Check Up www. pbpatl. org Questions? © Copyright 2014. All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta. 44