Legally Special

Unwonk - Episode 1: Legally Special

We learn about how dancing can make you legally special, why you have to be really really really careful when you buy a car, and why a loan to a friend is usually really a "loan" (those real quotes are effectively air quotes, which are meant to represent real quotes, anyway).

Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.

Please enjoy the links to additional information relating to the questions on this episode:

"But I really enjoy dancing." - Elaine Benes

"Finally, something beautiful you can truly own." - Don Draper

"I hope that when I die, people say about me, 'Boy, that guy sure owed me a lot of money.'" - Jack Handey

[Episode keywords: copyright & choreography, buying a car,  loans & bankruptcy]


Episode Transcript

UNWONK PODCAST - EPISODE 1: LEGALLY SPECIAL

Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos. As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation. 

On this episode of Unwonk, we learn:

  • How Genghis Khan dealt with deadbeats,
  • Whether how you dance makes you more special, and
  • How fruity laws might night help you when you’re on Craigslist.

This is Unwonk. We respond to your questions with relevant, useful and comforting information. If you would like to submit a question, please visit our site at unwonk.com

Even though the information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who self-diagnoses brain cancer after visiting WebMD to figure out why you have a headache.

And now, our first question.

I've come up with a unique dance move. Can I copyright it? 
 
Let’s start with the most important thing you need to know from the top: You are special.
 
Assuming your parents were doing the bare minimum, that’s what you were raised to think: The non-sensical catch-phrase you had when you were three, your misguided obsession with earthworms and magnifying glasses at six, and the adorable dance you did when you were seven to get extra TV time on a Saturday night. All of these contributed to a unique and special you.
 
Of course, as life eventually melts down your special snowflakes into a watery slush of disappointing jobs and empty relationships, you find that maybe – maybe -  you weren’t as special as you were led to believe.
 
There is hope, though.
 
As a legal expert, I can confirm that your parents were partially right. At least that childhood TV-time dance of yours – hands flailing and legs spazzing all around – stood a chance of being your own special, unique, and legally protected intellectual property under federal law.
 
And you can thank the Constitution of the United States of America: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
 
From 1787 to 1978, your special dance didn’t mean much in the eyes of the law, as dance was not legally considered a “useful art” subject to copyright protection.
 
It was the 94th congress that expressly extended copyright to choreographic works in 1978. Keep in mind that this was the late 1970s, when American culture was blistering with the rise and fall of disco, Jules Feiffery whimsy, astronaut ice cream, and lots of cramped and tangled hot tub sex. So, the usefulness of dance as an art was probably not called into question.
 
Note that pantomime was also let into the copyright club the same year as choreographic works, kind of like sliding past the bouncer at a nightclub right behind its much hotter friend. This was obviously the work of the Mummenschanz lobby at its apex.
 
According to the US copyright office, a choreographic work is “the composition and arrangement of dance movements and patterns usually intended to be accompanied by music.”
 
As music is required, this removes the following from your choreagraphy   portfolio: the spasmodic movements you initiate when a bee enters your personal space, that fake nonchalant jog you do after tripping over something invisible in public, and of course, your silent masturbation movements in the shower. These would be less choreography and more pantomime. Note, however, that if you do have music for your shower time self-abuse, the US copyright office does not require your shameful dirty moves to “be presented before an audience” to be eligible for protection. Unless that’s what you’re into.
 
 
The Copyright Office also notes that sports games and physical-fitness exercises are not considered choreographic works. Not only does this toss into question the hard work of synchronized swimmers everywhere, but also throws to the wind the feverish hand choreography of a drunken game of foosball.
 
Now, back to your question: Can you copyright a unique dance move?
 
We need to ask another question: Is your unique dance move a choreographic work? This is where your special upbringing comes into play: Is something special just because someone calls it special? What’s the use case? Are you us the move to impress whoever you can find at a bar before last call?  - Just a note – more booze usually works really well for that. - Are you using the move to accecuate the punch line of your go-to joke? Yes, these are special – and stupid - uses in the meaning that you are the only one who uses it that way, but for it to be copyrightable, it needs to be special special.
 
To be special special, you need to go beyond one unique move. You need to arrange multiple moves so that the totality of them is unique, manifesting an expression of something special. That’s what it means to be special in the eyes of copyrighting your moves – not one single move is special in itself, but the way you’ve arranged those moves to embody something bigger than themselves, imbuing a complex expression that is uniquely created by you.
 
Not to pick on your parents, though. They meant well, and, again, they were right: you are special. But to be special special from a choreographic work perspective, you need to expand your repertoire to something bigger. At least in the eyes of US copyright law and your move(s). Now, get to work on that.

I think I was swindled by a smooth operator who sold me what turned out to be a really defective used car. Don’t “Lemon Laws” protect me with a warranty? I’m also pretty sure the odometer was tampered with. What can I do? I found the car through an ad on Craigslist - can I go after them, too?

Let me tell you about smooth operators and take you back to the 1980s. I was young then, and thinking of when I was 12 years old. I was the only of my brothers living at home at that point, and my mom worked a lot. So a woman – I think it was the daughter of one of my mom’s friends – would spend a couple hours every few days helping me with homework and driving me to places like the library. She was physically just … soft looking – almost with no edges, had a short 80’s-looking haircut – kind of sleek and puffy all at the same time – and had this hopeful but slightly sad way of talking, as if she was used to people trying to steal her sunshine whenever she had something nice to say. She was in her early 20’s at the time. When you’re 12, though, anyone over 16 falls into the category where everyone from 18 to 40 looks kind of the same. Now, of course, anyone below 30 looks like an 12 year old to me. 

I think her name was Jennifer.

Jennifer drove a tiny FIAT, Triumph or some other kind of 1970s convertible. It was red and whined really loud when the gears changed. We were in that car when Jennifer was driving me home from my favorite library. I don’t remember why, but I liked a branch that was about 30 minutes from my home, even though there were a lot of libraries closer to me. And I know supposed nerd culture is cool now, but you know you were a maxed out nerd when you went out of your way to go to your favorite library branch.

On the drive, Jennifer told me that while I was at the library, she saw her psychotherapist. She talked a lot about her therapy. During the session, she told her therapist that she had met someone who fulfilled her ideals for a perfect mate: intelligent, kind, patient, thoughtful, funny, handsome. That person was me, she let me know. I don’t remember exactly what I said to. I think it was something along the lines of “Oh… interesting.” But I do clearly remember how that tiny car felt even tinier after that. And how this wasn’t some kind of sexual Mrs. Robinson moment. It was a weird relationship moment absent of any kind of sexuality. And even then I felt it was so much more inappropriate of her to say it to me than something sexual. And even then, I knew she needed a lot more therapy if the ideal man of this middle-aged person was a pudgy, socially awkward boy whose idols were Ian Fleming, Douglas Adams, and Dr. Who. 

The rest of the drive consisted of whining gears and the Sade album in the tape deck. And this is why whenever I hear Sade or the words “Smooth Operator,” I’m back in that cramped car with the woman who wasn’t doing therapy right, with brain cells on the fly reconfiguring themselves to damage how I would have relationship conversations for the rest of my life. 

Now, back to your question. I’m going to assume the following: (i) the person you bought the car from is a private citizen and not a car dealer (because car dealers sell cars through craigslist, too), (ii) you bought the car as-is – this would likely be noted on the bill of sale, and (iii) title has transferred.

I’m also going to assume that you’re a person with enough wits about you that you Googled the hell out of any personal information you may have gleaned from the seller as soon as you got it: including name, email address, phone number, home address. I’m sure that once you decided that this person wasn’t an axe murderer, or was going to ask you to help move his couch into a windowless van, or seller of cars with undisclosed defects, you at some point ran the car’s VIN (that’s vehicle identification number) through one of the online thingies that gives you the car’s history of accidents and other bad things. One other assumption is that you had a mechanic of your choice inspect the car. I’m sure all of this happened.

There’s also the creepiness and flakiness tests that apply to anything you buy or sell on craigslist. The personal settings on these are specific to each individual. I have a pretty low threshold for cutting off potential sellers or buyers on craigslist. I once refused a lamp to a guy who asked if he could test it first – it was a $10 IKEA lamp in the free section – he wanted a 4 hour window to come by to make sure it worked. My florflkeebl lamp went to someone else. Once you do enough transactions on craigslist, you begin to realize that your time is a lot more valuable than you thought.

You mentioned Lemon Laws. What is that? A Lemon Law is a state law that generally protects new cars from chronic problems when bought from a dealer. I actually can’t think of any other set of laws with their own nicknames. Except for the Comstock Law, which banned erotica and sex toys in the US post, the Volstead Act, which banned booze, and the Jocelyn Elders not-going-to-happen-in-this-house law that only applied in… my house. So, my knowledge here is limited to vices of… personal interest.  Here, it sounds like you’re buying a used car, and not from a dealer but from a private citizen. 

So, the question is: What recourse is there by a private buyer against a private seller for undisclosed known defects on a used car, and can the buyer proceed against Craigslist, as well?

On the defects: In this case, if the seller wasn’t lying to you about the defects, the manufacturer’s warranty doesn’t apply, and the Lemon Laws don’t apply (which is probably the case), you’re going to be the proud owner of a defective car. This is why checking out the seller’s background, car’s history and getting a mechanic’s inspection is so important. 

If, however, you have evidence that the seller concealed the defect, misrepresented the defect, or otherwise lied about it, you might have a case in small claims court for fraud. Small claims dollar caps vary among jurisdictions, so that’s something you’ll need to look into, as well. We have some helpful links on our website for this. Once you’re outside of the small claims court realm, you should probably consult a lawyer in your area to see what your litigation options are. There are attorneys who focus on this type of thing. Either look them up or check out the links on the website. 

On the odometer tampering. There’s a name for this: Odometer Fraud. While this sounds like a porn name from a fetish website, it’s a real thing, codified in federal law and most states. The gist of the laws is: Don’t fuck with odometers. There are so many other parts of a car you can fuck with: new floor mats, get baby puke cleaned off the backseat, switch out the cargo mat with the human blood on it. But. Don’t fuck with the odometer. It means something. Even if the federal and state governments don’t come running to your defense, the federal law – and many state laws – create a private right of action for you to pursue odometer tamperors directly. Again, you’ll need to look into whether small claims is the way to go here or your own attorney.

As for craigslist, no. Leave craigslist alone. They are the passive conduit between you and the seller. Unless you can show they had an actual hand in facilitating the transaction beyond posting an ad and relaying emails, not going to happen.

One thing I should note is that if you purchased the used car with funds from a bank loan, you might want to gently check with your bank. They may want to put some muscle behind you on this. I say gently, because you want to make sure you don’t breach any covenants you made to the bank on the fitness of the vehicle in order to get the loan. Of course, you got the loan through your local credit union instead of a faceless bank, right? Wait, that was too preachy. Was that too preachy? Yes, too preachy.

The main lesson here is to do as much diligence as possible, which I’m sure you did. If all of the safeguards failed, and you picked up a giant defective wobbly-bob, there is still the possibility of some recourse. But when you’re dealing with a private seller of a use car – and, forgive me please, because I hate sports analogies, similes and anything like that – the best defense really lies in a good offense. 

Last year, I loaned a friend $5,000 after he lost his job. He was supposed to pay me back this week and I know he’s going to file for personal bankruptcy next week. What are the odds I can get my money back if he doesn’t want to pay me?

In order to answer this, I have a few questions: Did you have a written loan agreement with your friend? Was there collateral? AND: Did you ever listen to your parents when they said to never ever loan money to a friend? 

If you’re the type of person to loan cash to a friend - and I’m not talking small amounts, like, hey, can you spot me some cash for a hot dog, beverage or assorted sundries - I’m assuming the answer to all three of these questions is no. Your parents - stern, immovable and as rebelled against as they were - should have been listened to in this case.

Let’s stick with the legal perspective for now. What is bankruptcy?

There are references to the concept as far back as the old testament and other ancient texts. Moses made reference to a jubilee, in which all debts would  be forgiven. This would be fantastic except for the fact that (i) the jubilee would happen every 50 years - keep in mind that people in the old testament lived for a really, really long time despite the complete lack of modern totally not bureaucratic insurance companies. To be fair, one of the most boring books of the old testament - Deuteronomy - bursting with scintillating rules on everything from muzzling oxen to stoning infidels to death - firmly fixed debt forgiveness to every 7 years. However, this only applies among Israelites, so check your credentials.

Moving on, Ghengis Khan allowed bankruptcy, but provided the death penalty for three-timers, which was very effective against fourth bankruptcies.

The word “bankruptcy” is popularly thought to derive from the latin words for bench and broken. At that time, bankers would do business from bench in a marketplace. If the banker became insolvent, his bench would be broken as a symbol of putting him out of business. Bankrupt. More importantly, this era would also mark the last time ever that a banker would be held liable for anything.

The heady days of the 1500s brought real laws regarding bankruptcy, and not in a good way. Essentially, these laws criminalized bankruptcy, providing jail time - debtor’s prison - for those who couldn’t pay up. Debtors’ prisons were effectively slavery - forcing labor and poor work conditions until the debt was paid off. 

US bankruptcy laws came into play largely in response to large scale economic downturns in the 1800s. As time went on, the bankruptcy laws became what they are, officially decriminalizing delinquent debtors and aiming to provide for a clean slate.

Of course, real prison can still be a debtor’s prison even if it doesn’t go by that name. Many state laws allow individuals to be jailed if they can’t afford certain court mandated fines and penalties. This, of course, has the effect of disproportionately impacting the poor, who don’t have the deep pockets to afford lobbyists like the privatized prison industry.

… orrrr the credit card industry , who…

... in 2005, helped to pay for a “reform” [you can’t see but I ironically quoted that with my fingers] to the US bankruptcy laws to make them - and this is not a huge surprise - less debtor friendly. 

There are two kinds of personal bankruptcy. Chapter 7 basically wipes the slate completely clear - this may come at the cost of some of your assets. Chapter 13 is what’s known as a reorg - the bankruptcy court will approve a plan for your repayment of some or all of the debt. Keep in mind that if a plan of any kind involves the sale of any assets, the bankruptcy laws do provide exemptions for amounts on certain things like your dwelling and household goods.

So, where does that leave you, the guy who loaned his friend $5,000? On a legal basis, screwed, most likely.

I doubt very much that you drew up a loan agreement with your friend. Even if you did, I would be more doubtful that you went to the trouble to to secure the loan. This would mean that the loan is tied to certain assets of your friend, so that if he defaulted, you would get dibs on those assets against those who were not secured. So there you are, in line behind a bunch of secured creditors and in a pool with other creditors, the priority of each is a byzantine nightmare to figure out (at least for me - I didn’t get a very good grade on my final exam on bankruptcy in law school).

Ah ha - says you - but if my friend hasn’t filed for bankruptcy yet, can I ask him to pay me some or all of the amount before he’s thrown to the bankruptcy court? You could, but the court would just be able to get that money back. Having you friend pay you so close to filing for bankruptcy would likely be determined to be what’s called a “voidable preference,” essentially a payment for a pre-existing debt within 90 days before the bankruptcy filing. Of course, it’s a lot more complicated than that on paper, but I think we’re safe with the fact that this is sneaky and reversible.

Where does that leave us? Well, from a legal basis, you’re screwed.

But let’s get back to the other issue: this is about a friend. 

What kind of friend? I’m thinking if it’s the kind of friend you’d loan $5,000 to, it’s the kind of friendship that’s going to survive a bankruptcy. So, if you pursued a legal means of getting your cash back here, you’d effectively make it a loud public declaration - your name would be on the list of creditors going after your friend - and you would have done so just to get anything from pennies on the dollar to zero. So not only would you be out most of your money, you’d also be out a friend.

Again, I don’t have a picture of the circumstances here, but, as in many situations, the legal path isn’t often the preferable one. Let your friend have his clean slate. He may not legally owe you the money after that, but you could likely work something out with him if you still wanted to get paid. Myself, I’d rather forgive the loan and hold that over him for the rest of his life. But I have control issues. All that said, next time, listen to your parents.

 

Thanks for listening to this episode of Unwonk.

Please visit our site at Unwonk.com to submit your questions, and to learn more about the topics discussed on today’s episode.

On the next episode, we learn about:

  • The appellate court opinion that narrowly prevented bowling pins from too closely resembling penguins
  • Why when the barista asked me what I wanted to drink this morning, I said “doing well, thanks,” and then tried to recover with “not my morning - haven’t had coffee yet, ha haha” when it was clearly mid-afternoon. I still got my coffee, though.
  • The German word – because there should be one – to describe the feeling I got while recording this episode when i suddenly remembered – from the secure, secret location of intentionally forgotten things in my mind – that I was in a mime troupe in sixth grade.