Negotiation Skills for Creatives: A Guide to Leveraging Your Value
Throughout your career you will have varying ability to negotiate terms.
This is a result of your position at that moment in comparison to the party you are attempting to negotiate with. For example, in the beginning of your career you likely won’t have as much leverage to negotiate a gallery representation agreement compared to an established artist simply because you aren’t as well known. You are more than likely gaining more from the exposure that may come out of the agreement than the other party would allowing you full artistic control over your exhibition. The gallery’s benefit with an emerging artist is harder to quantify, as you are an untested asset. Any agreement you enter into is about striking a balance between the parties based upon what each brings to the relationship.
Despite the potential for the other party having most or all the leverage while you are still an emerging artist, you have more leverage than you may think.
When negotiating consider the following:
Are you expanding their demographic reach
What hole(s) are you filling on their roster
What are the unique qualities you bring to the deal that someone else may not
How are they benefiting from entering into this contract with you
Going in with a plan and understanding of the other party’s needs is essential to negotiating terms that are more favorable to you. Having a clear understanding and manner of articulating what you expect or need to get out of the relationship to make it worth it for you is just as important as understanding what you bring to the table.
For example:
How knowledgeable is the other party in your field, what do they bring to the table?
Who is paying for materials?
What level of creative autonomy is required for you to deliver the quality of work expected by the other party?
Will you need anything from the other party to fulfill your obligations? Can they provide it?
What sort of marketing do you expect to occur? Who will pay for it? Who will approve it?
What rights do you want to retain in the work?
All of this is important to consider prior to beginning negotiations.
Finally, negotiations are a balancing act to ensure that each party receives what they expect from the deal and can continue working together in the future. To help maintain positive relationships in the industry, it is imperative that these expectations are memorialized in a writing.
Some people may try to “keep things informal,” because they believe the relationship should be only built on trust and reputation or because “friends don’t need things in writing.” From experience, no matter how small a disagreement that may arise is, when friends, or people in a small industry, go into business together it requires more formalities and the writing of specific expectations to ensure relationships are maintained irregardless of the deal.
From negotiation to memorializing an agreement, we are here to help you. Click here to book a free consultation.
Announcing a New Practice Group at Long Law: Fine Art and Entertainment
Long Law is proud to announce our new practice area: Fine Art and Entertainment, led by Alexandrea (Andrea) Tracy. Our mission is to empower creative professionals by protecting their rights, strengthening their business, and helping them grow with confidence.
Let’s build the foundation that lets your creativity thrive.
At Long Law, we don’t just represent Artists – we partner with them. From business formation and protecting intellectual property to negotiating licensing, consignment, and representation agreements we are here to ensure your art and career are legally protected every step of the way.
Long Law’s Fine Art and Entertainment team provides comprehensive support throughout the creative process; examples of our offerings include:
Drafting of gallery representation deals, commission agreements, partnership agreements, collaboration agreements, loan agreements, and media releases.
Review and negotiation of sale agreements, consignment terms, exhibition agreements, sponsorship agreements, and licensing agreements.
Business Formation
Intellectual Property Protection by securing copyrights, trademarks, and licensing rights.
Compliance and Risk Management of regulatory standards including Anti-Money Laundering, business regulations
About Andrea:
Andrea brings a unique blend of legal expertise and art-world experience. Prior to law school, Andrea received her master’s degree in museums studies, curated shows, and worked for an international art and tech company. She has long been passionate about supporting creatives at every stage of their career and is an avid collector.
During law school she continued to work with artist through the Center for Art Law, co-founded an anti-money laundering consulting company for art market participants and was a member of the New York City Bar Association’s Art Law and Fashion Law Committees. Since graduating, Andrea has litigated complex commercial and real estate disputes as well as worked for a boutique entertainment firm supporting Artists creative needs. Andrea is also a member of the New York Volunteer Lawyers for the Arts.
At Long Law she leads with a personal commitment to ensure artists have the same level of sophisticated legal counsel as any other entrepreneur or industry leader.
Long Law – taking care of the details, so Artists can focus on inspiring the world. Contact us today.
AI Governance for Founders: What It Is and Why It Matters
Most founders are already using AI. It shows up in hiring tools, marketing software, analytics platforms, and customer support systems. Often it arrives quietly, bundled into products that promise speed and efficiency. That’s fine. Until it isn’t.
When AI makes a mistake, the question is not whether you meant harm. The question is whether you were paying attention. That’s where AI governance comes in.
What AI Governance Means
Good AI governance (just like any form of governance) is about knowing where AI is used in your business and who is responsible for the outcome. It is about understanding limits and keeping a human in the loop. Good governance does not stop innovation. It prevents surprises.
Why Founders Should Care Now
Key policymakers are watching how automated systems affect people. Investors and Boards are asking how companies manage operational risk. Customers expect transparency and care. When something goes wrong, the standard is reasonableness. Did you understand the tool? Did you use it carefully? Did you set boundaries? Frameworks like the NIST AI Risk Management Framework shape how those questions are answered.
When we start to think about how cybersecurity and data privacy compliance was shaped, similarly, we saw incorporation of third-party standards into what became required of companies managing personal data. Here, with AI, these rules are not law. Not yet. But they still matter because they are beginning to form the outlines of what is “reasonable.”
Questions Every Founder Should Ask
Where is AI used in the business today?
Does it influence hiring, pricing, marketing, or customer decisions?
Is anyone reviewing its output before action is taken?
Do we know what the system does well and where it fails?
If the AI is wrong, who is accountable?
If you cannot answer these questions, you do not have governance. You have risk.
What Reasonable AI Governance Looks Like
For early-stage companies, governance should be simple.
Clear rules about how AI tools are used. Human review where it matters. Basic diligence on vendors. Care around data and confidentiality.
And documentation. Not for show. For proof that you were thoughtful.
That is usually enough.
How a Law Firm Fits In
Good legal advice should not slow you down.
We help founders see where AI already touches their business. We translate technical issues into legal and business risk. We draft policies that people will actually read. We review vendor contracts and disclosures. We align your practices with emerging standards.
The goal is confidence, not caution.
The Point
AI governance is not about the future. It is about today.
The companies that handle it early move faster and with fewer mistakes. The ones that ignore it tend to learn under pressure. They often learn big, painful lessons.
If you are starting to think about AI governance, now is the right time to do it calmly and on your terms. We would love to discuss it with you.
Equine Disclosure Requirements in Sales Contract
Selling a horse is not just a handshake deal. In the United States, horse sales are governed by a complex mix of state statutes, contract law, and fraud principles—and sellers who misunderstand their disclosure obligations can face costly legal disputes.
A common misconception is that horse sales are always governed by “buyer beware.” While that doctrine still applies in many jurisdictions, it is far from absolute. In some states, sellers are subject to explicit statutory disclosure requirements, and in all states, misrepresentation or concealment of material facts can create liability.
This article explains horse sale disclosure requirements state by state, highlights where sellers face heightened obligations, and outlines best practices to reduce legal risk.
In most states, there is no horse-specific disclosure statute. Instead, horse sales are governed by:
State contract law
Common-law fraud and misrepresentation principles
The Uniform Commercial Code (UCC), which generally treats horses as “goods”
However, a small number of states impose specific statutory requirements, and all states prohibit fraudulent or misleading conduct in horse sales.
The Universal Rule in All 50 States: No Fraud or Concealment
Regardless of location, every horse seller in the U.S. is subject to the same baseline rule: A seller may not knowingly misrepresent or conceal a material fact. This applies even when a horse is sold “as-is.”
A seller may be liable if they:
Make false statements about soundness, age, training, or use
Provide half-truths that mislead the buyer
Conceal known defects the buyer could not reasonably discover
Remain silent when prior statements create a misleading impression
Courts consistently hold that fraud overrides contract disclaimers, including “as-is” clauses.
When Does a Horse Seller Have a Duty to Disclose?
A duty to disclose commonly arises when:
The seller has actual knowledge of a defect
The defect is material to value, safety, or intended use
The buyer cannot reasonably discover the issue through inspection
The seller’s silence would make prior statements misleading
Examples that frequently lead to litigation include undisclosed lameness histories, prior surgeries, known dangerous behaviors, and performance-limiting injuries.
States With Specific Horse Sale Disclosure Laws
Florida has the most comprehensive horse sale disclosure law in the United States.
Florida law requires a written bill of sale for every horse sale, and mandates disclosure of specific information, including:
Confirmation of lawful ownership and authority to sell
Any warranties or representations relied upon by the buyer
Disclosure of recent veterinary treatments that could mask soundness issues
Disclosure of agent commissions and compensation
Written consent for dual agency (one agent representing buyer and seller)
Failure to comply can constitute a violation of Florida’s consumer protection laws—even without proof of traditional fraud. Bottom line: Verbal disclosures are insufficient in Florida.
California and Kentucky impose statutory disclosure requirements focused on agency relationships, particularly in higher-value horse sales. In both states:
Sales above a statutory threshold require a written bill of sale
An agent may not represent both buyer and seller without written consent
Undisclosed dual agency can result in treble damages and loss of commissions
These statutes are designed to prevent conflicts of interest rather than mandate medical disclosures—but violations are taken seriously.
In the remaining states, there are no horse-specific disclosure statutes. Instead, disputes are governed by:
Fraud and negligent misrepresentation law
Contract interpretation
Fiduciary duty principles (when trainers or agents are involved)
In these jurisdictions, sellers are not generally required to volunteer information—but once they speak, they must be truthful and complete. The greatest legal risk often comes not from silence, but from informal assurances, marketing statements, or casual representations that later prove inaccurate.
“As-Is” Clauses Don’t Always Protect the Seller
An “as-is” clause can limit implied warranties, but it does not protect a seller who:
Knowingly lies
Conceals a material defect
Violates a statutory disclosure requirement
Engages in deceptive conduct
Courts routinely hold that fraud defeats contractual disclaimers.
Best Practices for Horse Sellers in Any State
To reduce the risk of legal disputes, sellers should:
Use a written bill of sale for every transaction
Put all representations and warranties in writing
Disclose known material defects affecting safety or use
Avoid vague statements about future performance
Allow independent veterinary inspections
Clearly define agency relationships and compensation
Transparency, when documented properly, is usually the safest course.
Why Horse Sale Disclosure Issues Lead to Litigation
Horse sale disputes often arise because:
Expectations were not documented
Representations were made informally
Agency roles were unclear
Medical or behavioral issues were discussed verbally but not disclosed in writing
Clear contracts and deliberate disclosures dramatically reduce litigation risk.
Horse sale disclosure laws vary by state and fact pattern. Whether you are a seller, buyer, trainer, or agent, early legal guidance can prevent costly disputes. If you have questions about disclosure obligations, bill of sale drafting, or agency compliance reach out to us through our intake form at https://long.law/intake to book a free consultation.
Long Law Announces Opening of New York City Office and Launch of Fine Arts & Entertainment Practice Group
FOR IMMEDIATE RELEASE
Client-driven expansion strengthens firm’s presence in New York City and broadens service to creative professionals
New York, NY — January 1, 2026 — The Long Law Firm, PLLC, a boutique law firm known for its high-level legal representation of businesses, municipalities, and nonprofit organizations, is pleased to announce the opening of its New York City office, located at 11 Broadway, Suite 468, New York, New York, effective January 1, 2026.
The New York City office reflects the firm’s continued growth and its commitment to better serving its expanding New York City–based clientele. The opening also coincides with the launch of the firm’s Fine Arts & Entertainment Practice Group, which will be headquartered in the new office and led by Alexandrea Tracy, Esq.
The Long Law Fine Arts & Entertainment Group advises fine artists, content creators, and creative entrepreneurs who are establishing themselves professionally or emerging as influential leaders in their respective fields. The group’s mission is to empower creative professionals by protecting their rights, strengthening their businesses, and helping them grow with confidence in an increasingly complex legal and commercial landscape.
“Opening a New York City office is a natural next step for the firm,” said James A. Long, Esq., founder of The Long Law Firm. “Our NYC client base has grown steadily, and this expansion allows us to better serve those clients while launching a practice group that reflects both market demand and our values as a boutique firm focused on sophisticated, relationship-driven legal counsel.”
Alexandrea (Andrea) Tracy, Esq., who will head the New York City office and the Fine Arts & Entertainment Practice Group, brings a rare combination of legal training and deep art-world experience. Prior to law school, Andrea earned a master’s degree in museum studies, curated exhibitions, worked for an international art and technology company, and is an active art collector. Her career has been consistently shaped by a passion for supporting creatives at every stage of their professional development.
“At Long Law, my goal is to ensure that artists and creative professionals receive the same level of sophisticated legal counsel as any other entrepreneur or industry leader,” said Tracy. “Creative work is business, and artists deserve legal representation that understands both.”
In addition to its Fine Arts & Entertainment work, The Long Law Firm will continue to offer world-class legal representation in New York City for businesses of all sizes, municipalities, and nonprofit organizations, consistent with the firm’s existing practice areas.
The New York City office will operate by appointment only. Appointments may be scheduled by calling the firm’s main office at 315-991-8000.
For more information, visit https://long.law.
How Long Does It Take To Get A U.S. Patent?
There is no universal answer for how long it takes to go from submitting a patent application to owning a patent. The USPTO (United States Patent and Trademark Office) has been receiving around 600,000 utility, plant, and reissue patent applications per year for the last decade, and currently has over 1.2 million of these applications pending before it. This means inventors should expect to have some waiting period before they receive a response to their applications. To set a baseline, a majority of utility patents are granted within 3 years of the non-provisional application filing date. According to the USPTO's published data as of October, 2025, the average total pendency of a utility patent application – including granted patents and abandoned applications, but excluding applications that have filed Requests for Continued Examination (RCEs) – is 26.3 months.
Provisional Applications
Provisional patent applications allow inventors to establish a filing date and use a “Patent Pending” designation for their invention. However, provisional applications are not examined and therefore do not result in the grant of a patent without further action. A provisional patent application is active for 12 months from its filing date and then expires. Inventors may file a corresponding non-provisional patent application or request a conversion of the provisional application to a non-provisional application in this 12-month window. The non-provisional application will then be examined in accordance with its filing date. Filing a provisional application does not speed up the examination process of the non-provisional application.
Non-Provisional Applications
Excluding special circumstances, non-provisional patent applications are examined in the order they are submitted in, according to art unit. This means utility patent applications for different technologies (e.g. a biotechnical invention versus an semiconductor invention) may have different wait times for examination. Additionally, the number of communications between the USPTO and inventor required for a patent to be granted varies greatly between applications. Although rare, some applications receive a First Action Allowance, meaning they can become patents without any rejections from the USPTO. This can mean a patent is granted within 18–23 months after filing, and sometimes even sooner. A majority of patent applications receive at least one Office Action requiring response. Many receive a second, or Final Office Action, before allowance, and still others may proceed to RCEs or appeal.
The USPTO does its best to maintain various Patent Dashboard sites to give inventors a better idea of current processing times. As of 2025, only 22% of utility patent applications receive their First Office Action within 14 months of the filing date, with an average wait time of 22.5 months. After this first official communication, the USPTO and inventors engage in a correspondence pattern of Office Actions, or other official messages, and inventor responses.
Inventors typically have 3 months to respond to an Office Action, with the ability to extend the deadline up to 6 months for increasing fees. The USPTO aims to respond to all Office Action Responses from inventors within a 4 month window – if replies from the USPTO are delayed beyond this, the inventor may receive an adjustment lengthening the lifespan of their patent by a corresponding amount of time. This means that for an average non-provisional application which is allowed following a Final Office Action (three communications from the USPTO – the First Office Action, the Final Office Action, and the allowance), with responses sent to each Office Action in 3 months, and following USPTO communications sent in 4 months, a patent would be granted in 36.5 months. As First Office Actions may be sent sooner than 22.5 months, both the inventor and USPTO generally try send responses before their respective deadlines, and not all applications receive a second Office Action, many patents are granted in 24–30 months. For applications with a more complicated prosecution including at least one RCE, the average total pendency increases to 44.2 months.
Design Applications
Design patent applications are typically less technically intensive than utility patent applications, and fewer design patents are filed with the USPTO each year. According to the latest USTPO statistics, just over 65,000 design patent applications were filed in the 2025 fiscal year, with a total unexamined inventory of just over 71,000 entering 2026. This means that design patent applications on average have a faster and simpler path to becoming granted patents than utility applications. As of the end of the 2025 fiscal year, design patent applications had an average total pendency of 21.5 months from filing to final disposition (issuance or abandonment), and an average wait time of 16.9 months to receive a First Office Action.
Can You Get A Faster Examination?
For many inventors, the length of time required for patent prosecution is seen as a significant roadblock in pursuing intellectual property rights. The USPTO does provide some programs for applicants seeking a faster review of their application, though many were updated in 2025.
Track One prioritized examination: Track One examination is available for utility and plant patent applications, as well as some RCEs. Track One examination aims to give inventors a Final (second) Office Action or Notice of Allowance within 12 months of the application being accepted into the Track One program. As of July, 2025, the USPTO announced it would increase the number of patents that could be accepted into Track One prioritized examination from 15,000 to 20,000 each year. Inventors may request Track One examination by filing a request form with their application, paying an additional fee, and ensuring their application meets all requirements. According to the USPTO's latest data, petitions for Track One examination are usually granted within two months of filing, and a First Office Action for the application is usually sent within two months of that grant.
Patent Prosecution Highway: the Patent Prosecution Highway (PPH) offers applicants with international patents the opportunity to speed up their United States patent application examination. Pursuant to USPTO updates at the end of October, 2025, PPH applications are now docketed as Special – advanced to the front of the line for examination – once they reach approximately half the age of other recently docketed applications for the same technology. To access the PPH, inventors who have received a favorable ruling on a patent application from a participating foreign patent office may file a corresponding patent application with the USPTO and request accelerated examination under the PPH. To be eligible, the inventor must be able to submit a claim correspondence table showing that the claims pending before the USPTO correspond to allowed foreign claims.
Petition to Make Special: inventors may file a Petition to Make Special with their patent application, which advances the application to the front of the examination line when submitted. A Petition to Make Special may only be made under certain circumstances, such as if the inventor's age is 65 years or greater, or if the inventor's health may impair their ability to assist in prosecution.
Accelerated Examination: Accelerated Examination is available for design patent applications, but as of July, 2025 is no longer offered for utility patent applications. Accelerated Examination is similar to Track One in that the USPTO aims to return a final disposition on an application within 12 months of admission to the Accelerated Examination program, but has some additional filing requirements for inventors to be aware of.
If you have more specific questions about your patent application or need assistance with navigating the patent prosecution process, feel free to reach out to our legal team for guidance tailored to your situation. Go to https://long.law/intake to book a free consultation.
Here are the top 5 things every artist should have in writing prior to starting a commission.
First, congratulations on getting a commission. Second, congratulations for understanding how important it is to enter into a written contract with your Patron. Having a clear understanding between both parties will help the relationship grow and hopefully ensure there will be more commissions to follow.
The commission likely began with a simple conversation, a Patron liked your work and wanted you to make them something new to fit a specific location or to add vibrancy to the décor of their business. This is the perfect moment to write down, or memorialize, the Patron’s expectations as well as yours, without delaying the project. The legal tool used for this is called a Memorandum of Understanding, think of it as a contract before the contract. A Memorandum of Understanding (“MoU”) is often structured like a letter and includes the most important terms of a contract. It is used by many companies and individuals to allow the parties to begin working towards their mutual goal with some protection and legally binding terms while the attorneys negotiate the finer details of the full contract.
Here are the top five (5) things all artists should discuss and memorialize prior to beginning a commission:
(1) How, When, and for What will you get paid?
How much will you be paid for your time? Will materials and subcontractors fees be paid for by the Patron? Will you work out of your studio, on-site, or will the Patron need to provide space for you?
Will payment be made in installments? At what intervals (i.e.: upon signing, upon first draft or “spec” being provided to Patron, at each specified deliverable or draft approval, upon final delivery)?
Who will pay for delivery, shipping, insurance, and/or installation costs?
Will you be paid via Cash, Venmo, Zelle, Cashier’s Check or otherwise?
(2) The Artwork
What is the type, description, size, and purpose of the Artwork being commissioned?
Does the commission fit into your specific genre or style? If not, have you discussed the Patron’s reasons for choosing you for this commission and can you meet their expectations (e.g.: if you generally create abstract art and the Patron is commissioning a portrait it is advisable to memorialize any conversation regarding expectations).
You retain final creative control, but, how much input may the Patron provide during the process of creating the Artwork?
Will you need subcontractors to complete the Artwork?
Note that you will retain all copyright and moral rights in the Artwork.
Will you retain the right to use the Artwork in future exhibitions/retrospectives?
Will you retain the right to be the one to fix Artwork should it need any conservation work?
Will you seek the right of first refusal to buy the Artwork back should the Patron wish to sell it in the future?
(3) How will you and the Patron communicate with each other?
Will you be expected to text, e-mail, call, zoom, or host in-person check-ins?
Which method will be utilized for general communications vs. viewing a spec?
Who is responsible for scheduling draft viewings in-person or initiating virtual drafts being sent?
Who is in charge of coordinating delivery and installation?
What are your expectations regarding a reply?
How long does the Patron have to review and approve a draft?
How long does do you have to implement their feedback?
If a reply is delayed, how does that affect the draft or deliverable timeline?
(4) Deliverables and Timeline:
How long before the final commission contract needs to be signed?
How long will the Artwork take to complete?
How many drafts of the Artwork will be provided to Patron and at what intervals?
When and how will the artwork be delivered in its final form?
(5) Satisfaction Upon Delivery and/or termination:
Upon final delivery will the Patron accept the Artwork as complete or is there a time period for which they can requests changes?
What is the scope of what they can request?
Will the you be paid hourly for any subsequent work?
What happens if the Patron changes their mind or is unable to continue under the terms of the commission while the Artwork is still being created?
What happens if you are unable to complete the Artwork within the timeframe or at all?
The list above is meant to inspire your thinking and is not all encompassing nor is everything applicable to every commission. Similarly, the answers to some of these points may still be vague and need to be worked out prior to the signing of the final commission contract, but that is the beauty of the MoU. It is flexible while simultaneously providing you with some protection and framework of understanding between you and your Patron.
From the MoU to the final commission agreement, we are here to help you. Click here to book a free consultation.
Patent Pending: What It Means, And When To Use It
Protecting a new invention can be a daunting prospect in terms of time, money, and navigation of the legal landscape. This is especially true when the USPTO (United States Patent and Trademark Office) is estimating it will take the better part of two years for the average patent application to reach a final determination. This post answers some common questions about the “patent pending” labels used while a patent application is being processed, and what they mean from a legal standpoint.
What Does “Patent Pending” Mean?
The “patent pending” label itself is not overly complex. It signifies that all or some portion of a product or service is the subject of an active patent application.
In broad terms, a patent may be granted for a new and useful innovation, a new plant varietal, or a new ornamental design. This is often desirable both for the patent protection (the legal ability to prevent competitors from bringing infringing products to market) and the value of the patent itself (which the owner can license, sell, or cite to enhance their business value). However, to be eligible for a patent the invention must be new – or, to use the technical term, novel – when the patent application is filed. By the legal definition of novelty, selling or disclosing the invention to any third party may destroy the novelty of an invention and render it ineligible for a patent. Therefore, many inventors begin the process of patenting their inventions before placing them on the market, but do not wait for a final disposition before selling the product. Because the USPTO calculates the length of patent protections from the filing date of the application and not the issuance date of the patent, waiting until after a patent is granted – and exclusionary rights become enforceable – to bring an invention to market could be seen to reduce the number of years a patent grants protection on the market. In this interim period, a “patent pending” label can be used to indicate the invention has not been awarded a patent yet, but the inventor or owner of the intellectual property rights is aware of the value of their invention and actively pursuing a patent.
When Can You Label Your Product “Patent Pending”?
All countries have their own intellectual property laws, and may have different standards for when something can be labeled “patent pending.” In the United States, a “patent pending” label can be used between the date a first patent application is filed and the date a patent is granted. This includes provisional patent applications. If an application is abandoned or a provisional application expires without a non-provisional application being filed, the inventor must stop using the “patent pending” label. It is against the law to label goods or services as “patent pending” without having first filed an application for a patent, or after a patent application has been abandoned. Doing so may be considered false marking, and may result in a fine of up to $500 for each offense.
If a patent is granted, the labeling should be updated to match legal patent labeling requirements. While there is no penalty for failing to mark an invention as patented, not including this labeling may allow infringing competitors to claim they were not aware of the patent and avoid liability for their infringement. Proper labeling of patented materials is important because courts consider notice to alleged infringing parties – whether the other party marketing or using the patented material had knowledge of the patent – in determining liability. If a court finds that infringement occurred without knowledge, a patent owner may not receive compensation for the infringement.
What Legal Protections Does A “Patent Pending” Label Give You?
Unfortunately, very few – at least while the application is being reviewed. Because an inventor cannot assert exclusive rights to the use or sale of an invention until after a patent is granted, there are no patent rights available to stop others from advertising or selling infringing products during the application process. However, once a patent is granted, the patent owner gains the right to seek pre-issuance damages. Generally, this means the ability to sue for infringing acts that occurred after the patent application was published, but before it was granted. The success of a claim seeking pre-issuance damages hinges on the infringing party's knowledge of the patent application at the time that infringement occurred. A “patent pending” label on its own may not be sufficient to create liability, so inventors are best advised to perform regular searches to identify potentially infringing products or services as they arise. While a lawsuit cannot be filed before a patent is granted, inventors can send cease and desist letters to identified infringers. Because a well-drafted letter can be used to show knowledge of the patent application, this may be sufficient to dissuade continuing infringement.
A “patent pending” label can have additional benefits as well. The presence of the label indicates that the invention is of sufficient value to be worth protecting. For consumers, this can increase apparent value in terms of utility and quality. For investors, this can indicate both confidence in the value of the invention and increased business value from the potential intellectual property. And for competitors, although immediate legal action is not available, the presence of the label can be sufficient to dissuade potential infringers from attempting to copy the invention by signifying the inventor's knowledge of its worth and intent to seek legal protections.
If you have more specific questions about your patent application or need assistance with legal drafting or navigating public disclosures, feel free to reach out to our legal team for guidance tailored to your situation. Go to https://long.law/intake to book a free consultation.
The Magnuson-Moss Warranty Act Compliance Essentials
If you offer a written warranty on your products, the Magnuson-Moss Warranty Act (MMWA) governs what you say, how you say it, and what you must do when something goes wrong. The Act requires plain, conspicuous closures, and bans “tie-in” provisions that condition coverage on branded parts. Noncompliance can be costly, so let’s break it down and make sure there’s no opportunity for your customers to sue.
Your compliance must look like this:
Clarity and conspicuousness of relevant information
Use simple language that’s easy for consumers to understand. State who the warrantor is (yourself); who is covered; what’s covered and what’s excluded; what you’ll do to remedy product failures and for how long; what the consumer must do and how they should obtain performance of obligations under the warranty; dispute program information; legal remedies available; and the timing at which consumers can expect you to act.
Pre-sale disclosure
Make the terms of the warranty available before the purchase. If items are sold in-store, ensure that there is in-location access to the terms pre-sale. If you’re using e-warranties, label the packaging or user manuals with the website and a non-Internet contact method.
No tie-ins
Coverage cannot be conditioned on a consumer’s use of your brand’s parts or authorized service. This is only allowed if you provide those parts or services free of charge.
Calling it a “full” warranty
There are federal minimum standards to be able to do this. These standards are: providing free repair within a reasonable time; not having any limits on the duration of the implied warranty; and providing a refund or replacement after reasonable repair attempts. If you don’t meet all of these, you must call it “limited”.
Implied warranties and Lemon laws
Even if you issue your own warranty, you can’t disclaim implied warranties. Additionally, it’s important to note that the MMWA is independent of state lemon laws, and even if that doesn’t apply to your product, the MMWA still will.
Remedy timing and cost
Remedying defects must be done within a reasonable timeframe, because if consumers incur expenses due to delays in your performance, they may recover them.
Informal Dispute Settlement Mechanisms
Warrantors are encouraged to have procedures for consumer disputes to be settled through informal dispute mechanisms. If you do, the mechanism must follow the rules put forth by the FTC, the comprehensive list of which can be found here.
Here’s a quick checklist for you to make sure you’re avoiding common mistakes:
Are our terms easily accessible, clear, and available pre-sale in every place we sell?
Does any part of our terms imply that the warranty is void if customers use other brands or independent repair services?
Do we call it a “full” warranty? And if so, do we meet federal standards?
If we offer e-warranties, are our terms posted conspicuously online with packaging directions and offline contact information?
Do our dispute resolution mechanisms comply with FTC rules?
Got questions? Need your terms looked over?
Book a free consultation at https://long.law/intake
No Treble Damages for Municipalities: The Court of Appeals Cuts RPAPL §861 Down to Size
For claimants and their legal counsel, money no longer grows on trees in claims asserted against municipalities under New York’s Real Property Actions and Proceedings Law (RPAPL) §861. In March of this year, the New York Court of Appeals addressed the question of whether a municipality could be held liable for treble damages under the statute. In Rosbaugh v. Town of Lodi, the Court held that even though the statute provided for an award of treble damages, a court could not assess those damages against a municipality.
The Town of Lodi had determined that certain trees posed a hazard to drivers traveling on a town highway adjacent to the Rosbaugh’s property and, believing incorrectly that the trees were within the highway right of way, they hired a tree service to remove or trim 55 of them. The Rosbaugh’s sued the Town for damages under RPAPL §861 which provides for treble damages for anyone who “cuts, removes, injurers or destroys” trees without the consent and permission of their owner. Following arbitration, an arbitrator awarded the Rosbaugh’s damages, including treble the “stumpage value” of the trees based upon the treble damages provision in the statute. The town appealed the arbitrator’s award to Supreme Court challenging the treble damages. The Supreme Court affirmed the award, holding that the treble damages were not punitive damages because RPAPL §861 did not require a finding of “actual malice or a wanton, willful or reckless disregard for plaintiffs’ right” to support the award. A split Appellate Division then affirmed the Supreme Court’s decision.
When the Court of Appeals considered the case, they focused on the legislative history behind RPAPL §861, particularly materials submitted to the Legislature by the New York State Department of Environmental Conservation which advocated for passage of the statute and its treble damages provisions to deter the illegal taking of timber by illegitimate timber harvesters. The Court relied upon this legislative history to hold that the treble damages contemplated by the statute were punitive damages. They reversed the lower courts and held that treble damages under RPAPL §861 could not be awarded against the Town of Lodi based upon a long line of well-established Court of Appeals precedent holding that the neither the State of New York nor any of its political subdivisions is subject to punitive damages.
The practical take away for adjusters handling claims against New York municipalities is this: municipalities are not subject to punitive damages and when presented with claims seeking enhanced damages, such as the treble damages provided for in RPAPL §861, adjusters should consider whether the intent of the statute providing for those damages is to punish or deter conduct and, if so, argue that such damages are punitive in nature and that recovery of them is therefore barred.
SAFE Note Trends Update
Investors and founders are rethinking how they use SAFE notes, and the changes aren’t subtle. Deal terms that were once afterthoughts now carry real weight, negotiations are more detailed, and the market as a whole is leaning toward tighter, more investor-friendly structures. If you’re raising capital with SAFEs this year, you’re operating in a different environment than the one startups enjoyed just a few years ago.
Valuation caps aren’t just “nice to have” anymore
A few years back, uncapped SAFEs floated around pretty casually. Founders liked them because they pushed the valuation question to a later day; investors tolerated them because competition for deals was intense.
That dynamic has cooled. Investors now want clearer ceilings on conversion pricing, and many accelerators are nudging founders toward setting realistic caps. Even pre-revenue companies are expected to anchor their cap to something concrete, whether that’s traction, IP assets, or even signed LOIs.
A fair cap helps prevent unpleasant surprises later. It also signals to investors that you understand how your business fits into the broader market rather than clinging to guesswork.
“Most favored nation” clauses are quietly becoming standard
MFN provisions used to pop up mostly in friends-and-family rounds. Today, you’ll see them in seed rounds, bridge rounds, and everything in between. Investors want reassurance that if you later issue a better SAFE, they won’t lose out.
It sounds simple, but here’s the thing: MFN terms can create administrative chaos if you end up issuing several SAFEs with different conversion mechanics. The more variation you introduce, the more careful you need to be when you finally convert everything into preferred stock.
If your company is growing fast, an MFN clause can be reasonable. Just make sure you understand how many other terms it pulls in alongside it.
Post-money SAFEs are the norm, and they’re changing expectations
The shift from pre-money to post-money SAFEs gave investors what they always wanted: a predictable percentage ownership after conversion. It also means founders need to track dilution more carefully.
With post-money structures, each new SAFE directly dilutes the founder and existing holders. There’s no hiding the ball. Some founders find this stressful; others find it refreshing because it forces cleaner cap-table planning from day one.
If you’re juggling multiple SAFEs, consider using a cap-table tool like Carta or Pulley. Trying to track conversion math on a spreadsheet can get messy fast.
Discounts are getting steeper
With startup valuations correcting, investors are negotiating more aggressive discount rates—20 percent used to be typical; now 25 to 35 percent isn’t unusual. It’s not a sign that your business is weak. It’s simply the current climate.
A stronger discount may also help close a round quickly. And speed, especially during periods of market uncertainty, is worth quite a bit.
Side letters are on the rise
Founders sometimes worry that side letters make a round feel “too formal,” but the opposite is true. Investors increasingly expect clean side letters covering things like:
• limited information rights
• pro rata participation
• quick confidentiality assurances
One word of caution: each extra letter adds friction when you’re converting SAFEs later. Keeping these documents uniform helps future-you avoid headaches.
Where this leaves founders
Raising capital with SAFEs still makes sense for many early-stage companies. They’re fast, flexible, and much lighter on legal fees than priced rounds. But the market is maturing, and the way investors use SAFEs is maturing with it.
If you’re preparing a SAFE round this year, think through:
• whether your valuation cap is grounded in reality
• how your discount compares to current norms
• whether adding an MFN clause will complicate future rounds
• how each SAFE affects your eventual dilution
Fundraising always involves a mix of optimism and risk, and a well-structured SAFE helps keep that balance under control.
If you want help reviewing or drafting your SAFE documents, our team at The Long Law Firm PLLC is here for you. You can book a free consultation anytime at long.law/intake.
Understanding California’s Garment Liability Laws: Why Legal Guidance Matters
California’s garment industry has undergone major legal changes in recent years. With the passage of the Garment Worker Protection Act (SB 62) in 2022 and its follow-up legislation, AB 336 in 2024, liability for unpaid wages has expanded to include “brand guarantors” — companies that contract for the manufacture of garments. These laws were designed to hold fashion brands accountable for working conditions within their supply chains and to ensure fair wages for garment workers.
However, the scope of these laws is often misunderstood. Downstream retailers and boutiques that simply purchase ready-made goods are generally not considered “brand guarantors.” Liability attaches only when a company directly contracts for, directs, or financially controls garment production. For businesses that operate through complex supply chains, determining where legal responsibility begins and ends can be difficult — especially when suppliers, wholesalers, and manufacturers operate in different states or countries.
That’s where hiring an attorney can make all the difference. An attorney can:
Review your supply contracts and vendor relationships to identify any potential “brand guarantor” exposure;
Help ensure that your company is properly registered and compliant with the Labor Commissioner’s record-keeping rules under AB 336;
Represent you if a Labor Commissioner (DLSE) wage claim names your business as a respondent, and raise appropriate defenses if liability doesn’t apply;
Provide proactive strategies — from vendor agreements to due-diligence checklists — that keep your business compliant and protected.
In short, even if your boutique or brand only purchases finished goods, it pays to know where you stand and how to defend yourself should you be pulled into a wage violation dispute. California’s garment laws are complex, and their interpretation continues to evolve. Consulting an attorney early can prevent costly misunderstandings and ensure that your company remains compliant — and confident — in a rapidly changing regulatory landscape.
Go to https://long.law/intake to book a free consultation.
Horse Breeding Season Is Around the Corner: What Stallion Owners and Mare Owners Should Be Doing Now
As winter settles in, the equine industry quietly begins its countdown to breeding season. Within the next couple of months, stallion stations, mare owners, and breeding managers will shift from preparation to action. The most successful breeding seasons are never accidental—they’re built on clarity, planning, and ironclad contracts.
Whether you stand a stallion or own a mare, now is the time to tighten your paperwork, refine your logistics, and ensure you fully understand the terms governing each breeding. Clear expectations today lead to healthier foals and healthier business relationships tomorrow. By approaching the season with strong documentation, transparent communication, and proper legal guidance, both stallion owners and mare owners can look forward to a productive, stress-free year.
For Stallion Owners: Update and Fortify Your Breeding Contracts
A stallion owner’s primary responsibility before the season opens is to ensure that every contract presented to mare owners is current, legally enforceable, and tailored to the realities of modern reproduction. A breeding contract is not just a formality—it is the backbone of risk management for your entire operation.
Your contract should clearly differentiate booking fees, stud fees, collection fees, and any non-refundable components. Discounts or package deals should be outlined plainly and without ambiguity. Define “live foal,” set veterinarian-certification requirements for losses, and specify how and when rebreeds are handled. Detail collection days, blackout periods, semen-quality disclaimers, and limits on shipments or doses per cycle. Spell out how semen is shipped, who pays, who is liable for delays, and what happens when weather or carrier issues arise.
The contract should also specify mare requirements to maximize the likelihood of conception on the first attempt. Include reproductive records, culture/cytology requirements, vaccination status, and minimum standards for accepting or rejecting mares.
Finally, clarify ownership of frozen doses, whether mare owners may retain unused semen, and any limits on embryo transfer or multiple embryos under a single contract.
For Mare Owners: Understand Exactly What Your Breeding Fee Covers
Mare owners invest heavily when selecting a stallion. Before signing anything, it’s crucial to know what is included in the fee—and what is not. Determine whether there is a separate chute fee, whether collection or shipping costs are additional, and whether the contract covers one season, multiple attempts, or a single cycle. Understand the documentation required for rebreeds, the timing of rebreeds, and whether they are available in-season or only the following year.
Ask how many doses and shipments are permitted, whether weekend or holiday shipments are available, and what the stallion’s blackout dates are. If the stallion competes, travels, or has limited collection days, that information is essential before your mare cycles. Many stallions require recent ultrasounds, cultures, or specific veterinary records—know these requirements early, as they can affect timing.
If you plan to use embryo transfer or ICSI, confirm that the contract allows it. Some contracts limit use to a single foal per season without an additional fee.
Why Having an Attorney Draft and Review Your Breeding Contracts Is Essential
Equine breeding agreements often appear simple, but they involve unique legal issues that standard templates cannot adequately address. A well-crafted contract is not merely a business form—it is a critical risk-management tool that protects your livelihood, your animals, and your reputation.
Breeding contracts must address liability for injury, death, or disease; transportation risks; reproductive veterinary decisions; embryo transfer and ICSI rights; definitions of “live foal”; and allocation of shipping risks. Generic templates rarely account for all these nuances. An attorney experienced in equine law ensures the agreement reflects both industry standards and the specific realities of your operation.
Ambiguous terms—such as unclear LFG language, unspecified veterinary-care authority, or vague fee structures—are the most common source of conflict between stallion owners and mare owners. A single undefined term can lead to unpaid fees, refused rebreeds, liability disputes, embryo-ownership conflicts, or litigation costs that far exceed the stud fee.
An attorney eliminates ambiguity, strengthens your legal protections, and ensures your agreement is enforceable where you operate—not just in theory, but in practice.
A fair, comprehensive, and legally sound contract builds trust. It protects stallion owners from unreasonable claims and protects mare owners from hidden fees or unclear obligations. Most breeding-season disputes arise not from bad intentions, but from unclear documents—exactly the problems that proper legal drafting prevents.
At our firm, we understand the unique challenges that come with equine breeding and the importance of having contracts that are both legally sound and tailored to your operation. With attorneys licensed in several states and experienced in equine, agricultural, and commercial law, we are equipped to help stallion owners and mare owners navigate every aspect of the breeding season. Whether you need a contract drafted, reviewed, or updated, our team is here to ensure your breeding program is protected, compliant, and positioned for success.
Go to https://long.law/intake to book a free consultation.
Why Patent Protection Matters
“Intellectual property is the oil of the 21st century.”
— Mark Getty, co-founder of Getty Images
Every innovation begins with an idea—but only a protected idea becomes an asset. Patent protection is the mechanism that transforms creative thought into tangible value. It grants inventors exclusive rights to make, use, and sell their inventions for a limited time, ensuring that the rewards of innovation flow to the people who make it possible. In the absence of such protection, ideas can be copied instantly, and the incentive to invest in research, design, and engineering disappears.
At its core, a patent is a bargain between the inventor and society. The inventor discloses the details of the invention publicly, contributing to the collective pool of knowledge. In exchange, the government provides a temporary monopoly—typically twenty years from filing—during which the inventor can capitalize on that innovation. This exchange fuels progress: public disclosure spurs further development, while exclusive rights encourage risk-taking and investment.
For startups, patent protection often becomes the foundation of valuation. Investors look to patent filings as evidence of proprietary advantage and future market control. For established companies, patents function as both shield and sword: shielding against infringement by competitors and serving as leverage in cross-licensing, mergers, and negotiations. Even in crowded industries, a well-drafted patent can define a niche that competitors cannot lawfully occupy.
Beyond the economics lies reputation. A granted patent signals originality, technical mastery, and foresight. It tells the market—and potential partners—that innovation is not incidental but institutional. For inventors, it represents recognition by peers and protection against exploitation; for society, it secures the steady forward march of invention.
Patent protection matters because it preserves the delicate balance between openness and ownership, curiosity and commerce. It rewards ingenuity without silencing competition, ensuring that innovation remains both possible and profitable.
If you have any questions about obtaining patent protection, do not hesitate to reach out to us. Go to https://long.law/intake to book a free consultation.
The Benefits of Obtaining Patent Protection
“The patent system added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” – Abraham Lincoln
Innovation drives progress. Whether it is a breakthrough medical device, a software algorithm, or a new consumer product, turning ideas into reality requires investment of time, talent, and capital. Yet, without proper protection, your innovations are vulnerable to imitation and misappropriation. Patents serve as a critical tool for safeguarding inventions and enabling innovators to capture the value of their work.
The Patent Bargain
A patent grants its holder the exclusive right to make, use, sell, and license the invention for a defined period in exchange for disclosing to the public how the invention works. This exclusivity allows you to prevent others from copying or profiting from your invention without permission, allowing you, the patent holder, to establish a strong market position and benefit from your idea. For startups, this can mean carving out a competitive niche; for established firms, it can mean reinforcing brand dominance.
Business Valuation and Investment Appeal
Patents are assets and investors view them as such. A robust intellectual property portfolio demonstrates innovation capacity and reduces the risk of a competitor harming your business. Patents can be pivotal in securing venture capital, negotiating partnerships, or driving mergers and acquisitions. For many companies, the intangible value of patents often exceeds their tangible assets.
Opportunities for Licensing and Revenue Generation
Patents are not only shields—they can also be powerful swords. While their primary function is to prevent others from copying your invention, they can equally serve as tools for generating income. By licensing the rights to use your patented innovation, you can create new revenue streams without ever bringing the product to market yourself. In fact, many inventors never manufacture or sell their patented creations directly; instead, they build steady income by granting others the right to produce, market, and profit from their protected ideas.
Incentive for Continued Innovation
The patent system itself incentivizes innovation. By granting inventors exclusive rights it encourages the disclosure of new technologies to the public in exchange for temporary monopoly power. This dynamic fosters cumulative innovation where future inventors can build upon disclosed knowledge while original creators reap deserved rewards.
In a global economy defined by knowledge and innovation, patent protection is more than a legal safeguard—it is a strategic asset. From ensuring exclusivity to driving valuation, patents empower innovators to maximize the return on their ideas while contributing to broader technological progress. Patent protection is not merely a defensive measure—it is a proactive investment in long-term growth and competitive strength.
If you have any questions about obtaining patent protection, do not hesitate to reach out to us. Go to https://long.law/intake to book a free consultation.
How to Stay Compliant with Online Subscription Regulations
Online subscriptions are one of the most convenient ways for businesses to transact goods and services, but if you want to enjoy that convenience, you have to make sure that you're returning the favor to your customers. The FTC has cracked down on the laws surrounding subscription services in attempts to protect consumers from deceptive sales tactics, so keep your cancellation process straight-forward, and prioritize consumer consent. Here’s what you need to know:
What are the rules?
The Negative Option Rule (NOR) states that the following material terms must be clearly disclosed before one’s subscription begins and any transactions are completed:
The subscriber’s right to cancel
How subscribers are to notify the seller if they don’t want to purchase a selection
Any minimum purchase requirements
That subscribers have at least 10 days to reject a selection
That if any subscriber is not given at least 10 days’ notice to reject, then the seller will credit the return of the selection (as well as shipping and handling if applicable)
Whether billing charges include shipping and handling
The frequency with which announcements and forms will be sent to the subscriber
Keep these details in your initial terms of service that consumers must agree to. You also must provide periods where you send introductory merchandise, give consumers time to respond to any announcements you’ve sent out, and always promptly honor any cancellation requests.
All of these regulations apply to any third-party sellers as well. Third parties are responsible for having all the same terms in place as the initial seller, and are prohibited from accessing consumers’ billing information from the initial seller.
Who is issuing these rules?
The Federal Trade Commission (FTC) issued the Negative Option Rule. They’re a U.S. Government agency in charge of addressing unfair business practices and protecting consumers’ rights.
The U.S. Congress enacted the Restore Online Shoppers’ Confidence Act (ROSCA) which has similar provisions to the Negative Option Rule, but with an extension. It includes limitations on the information that third parties can have access to in addition to prohibiting recurring charges without explicit consumer consent.
The Biden Administration’s “Time is Money” Initiative also included efforts to eliminate “junk fees” which targeted online subscriptions and negative option marketing. These efforts were meant to be executed by the FTC’s Final Rule which was a substantial addition to their original Negative Option Rule, but it was overturned.
Wait, so what’s the Final Rule?
The FTC’s Final Rule, otherwise known as the Click-to-Cancel Rule, was scheduled to take effect in July 2025, but was blocked by a federal appeals court only days before due to a procedural error on the part of the FTC. It aimed to significantly tighten the leash on online sellers and put forth an even stricter set of regulations on top of those already in place, but sparked controversy among some politicians and lobbying groups. It is currently struck down, but could potentially resurface in the next year or so.
What happens when regulations aren’t complied with?
Failure to comply can end up being very costly for your business.
In New York, there is a penalty of as much as $500 for a single violation and $1,000 for multiple violations resulting from a single act
Federal violations (ROSCA and NOR) violations can be as much as $53,088
You also have to look out for settlements → in New York over the last decade, there have been 23 negative-option-related settlements which have stockpiled over $10 million in consumer recompense and $14 million in penalties and fees
Your Next Steps
Review your terms of service and ensure that they clearly state all the material terms listed above.
Confirm that consumers must explicitly agree to these terms and give consent to negative option transactions.
Keep on top of all cancellation requests. The sooner they’re addressed, the better.
Stay in the loop regarding these regulations and keep in mind that the FTC hopes to enact stricter rules in the future.
Got Questions? Need your terms of service checked out?
We offer free consultations. Book a time with us here: https://long.law/intake
New Texas TCPA Rules for Text Message Marketing
Beginning September 1, 2025, businesses that place marketing calls or send marketing text messages to Texas residents will be subject to stricter rules under the Texas Telephone Consumer Protection Act (Texas TCPA). This state-level law is designed to protect Texas consumers from unwanted telemarketing calls and SMS marketing. Whether you are a small business owner, marketer, or operate a customer service platform, it is critical to understand how these changes affect your communications strategy.
Under the new law, businesses must obtain a consumer’s Prior Express Written Consent before sending marketing or promotional text messages to Texas residents. Consent must be secured through a separate, unbundled, and affirmative action, such as a dedicated checkbox. It cannot be hidden within a website’s Terms of Use and cannot be made a condition of purchase.
In addition to obtaining proper consent, most businesses are required to register with the Texas Secretary of State, pay the applicable registration fees, and, in some cases, post a bond in the amount of $10,000 depending on the nature of their activity. Almost all businesses sending automated or bulk promotional messages to Texas residents must comply with these obligations, even if they already maintain an established business relationship with the customer.
Certain types of messages and organizations are exempt from these stricter requirements. Transactional or informational text messages, such as order confirmations, shipping updates, appointment reminders, or account notices, generally do not fall within the scope of the Texas TCPA because they are not considered marketing communications. In addition, some non-commercial organizations—including schools, churches, registered charities, and political campaigns—may be exempt from the registration and strict consent rules, depending on the content of their messages. Because exemptions are highly fact-specific, businesses should carefully review their individual circumstances with legal counsel.
To ensure compliance, along with obtaining consent and potentially registering, businesses should adopt best practices that include using a separate checkbox for SMS marketing consent at the time of checkout or signup, clearly informing consumers that marketing texts are optional and not tied to a purchase, providing an easy opt-out mechanism for recipients, and maintaining detailed records of when and how consent was obtained. Businesses should avoid burying SMS consent within lengthy Terms of Use or privacy policies, as this approach will not satisfy the statutory requirements.
Texas is stepping up enforcement of consumer protection in text message marketing. Beginning September 1, 2025, any business adding new contacts to its SMS list must obtain valid, documented Prior Express Written Consent or face significant fines and potential legal action.
If you have any questions about whether your business is in compliance, do not hesitate to reach out to us. Go to https://www.long.law/intake to book a free consultation.
Defending Your Business Against TCPA Claims – A Lawyer’s Perspective
If your business sends texts, makes marketing calls, or leaves voicemails to prospective customers, the Telephone Consumer Protection Act (TCPA) is something you need to know about.
In plain terms, the TCPA sets the rules for how—and when—you can contact people by phone or text. It’s meant to protect consumers from getting spammed by telemarketers. But here’s the thing: even well-meaning small businesses can accidentally run afoul of it and end up facing serious fines or lawsuits.
Even where you may technically be acting within the requirements of the TCPA, there are predatory law firms looking to make a quick buck by threatening a lawsuit on behalf of someone you may have contacted.
So how do we avoid running into these issues and what do we do if we’re targeted by one of these firms?
Let’s walk through what you need to know.
The Basics: What the TCPA Requires
Whether you’re sending appointment reminders, promotional texts, or follow-up calls, here are the key TCPA rules to keep in mind:
Get consent first: You must get permission before you call or text someone. For marketing messages, that consent has to be in writing (electronic signatures are fine).
Stick to the right hours: Only contact people between 8:00 AM and 9:00 PM in their time zone—not yours.
Be upfront about what you’ll send: If someone opts in, make sure they know what kinds of messages to expect, how often they’ll get them, and how to stop them.
Make opting out easy: Always offer a simple way for someone to unsubscribe. For texts, that usually looks like: “Reply STOP to unsubscribe.”
Even if your message is purely informational (like a reminder or confirmation), you still need at least verbal or written consent.
What Are the Legal Risks?
An easy mistake to make is failing to recognize a consumer’s time zone and contacting them outside of the approved timeframe due to their local time differing from your own. For example, if a small business in New York sends a promotional text message (that they already have written consent for) at 9:00AM eastern time, and it’s received by a consumer in California at 6:00AM, that business could become the target of a TCPA claim.
Another thing to watch out for is ensuring that you have a clear and simple opt-out mechanism for consumers to use whenever they please. The safest way to avoid complications is to include the option at the end of each phone call (ask verbally) or text message that you send (e.g., “Reply ‘STOP’ to opt out.”). Make sure you are complying with Opt-Out requests.
What Happens if Someone Brings a Claim Against You?
Under the TCPA, consumers can sue businesses directly—and they often do. Some lawsuits are legitimate. Others are brought by so-called “TCPA trolls”—lawyers or consumers who go looking for slip-ups just to cash in on settlements.
Each violation can cost $500 to $1,500, depending on whether it was a mistake or something more deliberate. That means even a minor misstep in a mass text campaign can lead to a major legal headache.
The good news? If it’s a first-time mistake and you can show you were trying to follow the rules (like having a TCPA policy, training staff, and keeping good records), courts may reduce the penalties.
In these cases, you should be prepared to present evidence of preexisting compliance procedures, such as an internal TCPA Compliance policy or regular observation of the Do Not Call Registry.
What You Should Do Next
Here are a few smart steps to get your business on the right track:
✅ Review your contact lists – Make sure you have proof of consent for every person you message.
✅ Check the Do Not Call Registry – You should be scrubbing your lists against it at least once a month.
✅ Keep your own internal “do not contact” list – If someone opts out, make sure they stay opted out.
✅ Document your policies – Keep records of any staff training, compliance steps, and procedures you follow. If a problem comes up, this helps show you were acting in good faith.
✅ Be Mindful of when you are sending message – Avoid early or late texts and be mindful of time zone changes. Work with your marketing vendors to ensure they have safeguards in place.
Got Questions? Need a compliance checkup?
We offer free consultations. Book a time with us here: https://long.law/intake
Intellectual Property Rights and Unpaid Interns: Do Interns Own What They Create?
Unpaid internships are a staple in many industries, offering students and recent graduates a path into professional environments. But what happens when an unpaid intern generates valuable intellectual property? What if the intern creates, or contributes to, a software tool, product design, or marketing strategy — who owns that work? And does the company compensate the intern in order to use the intellectual property?
Can a Company Own an Intern’s IP Without Paying for It?
Yes, under the right conditions, a company can legally obtain ownership of IP created by an unpaid intern without providing additional compensation—but only if proper legal safeguards are in place.
First, the internship must be legally unpaid. Federally, unpaid internships must satisfy the criteria set out by the Department of Labor’s Primary Beneficiary Test. If the intern is the primary beneficiary, the intern has been clearly informed that the position is unpaid, and the intern is not displacing a paid employee, the arrangement can be unpaid, without triggering wage or compensation claims. Keep in mind that certain states may have additional requirements for an unpaid internship to be legal.
Second, there should be a valid IP Assignment Agreement in existence. It is very important that a written agreement assigning IP rights is executed at or before the start of the internship. This agreement should contain a clear IP assignment clause that transfers to the company all rights, title, and interest in any intellectual property created by the intern during the internship.
Third, the IP in question must qualify as “work for hire.” The IP in question should be directly related to the intern’s role or created using company time, resources, or confidential information. This helps ensure the work product qualifies as "work for hire" under applicable statutes or common law principles.
Companies offering unpaid, or even paid, internships should have a comprehensive internship agreement in place with explicit IP terms, including provisions to ensure ongoing cooperation (e.g., patent assignment), ensure that the internship structure complies with federal and state labor laws, and the intern’s contributions are well documented.
Internships benefit both the intern and the company. However, without the proper safeguards in place, both parties are opening themselves to potential legal concerns.
If you have any questions about internships and intellectual property rights, do not hesitate to reach out to us. Go to https://www.long.law/intake to book a free consultation.
What Are Common Law Trademark Rights?
When most people think of trademarks, they think of official registration with the U.S. Patent and Trademark Office (USPTO). However, common law trademark rights are an important and often overlooked aspect of trademark protection. These rights are automatically granted to anyone who uses a trademark in commerce, even without registering it. However, there are limitations to common law rights, so just because you used your brand in commerce does not mean you have complete and exclusive rights to it. Here is what you should understand about common law trademark rights:
1. What Are Common Law Trademark Rights?
Common law trademark rights are unregistered trademark rights that are automatically granted when a business uses a mark in commerce. These rights are based on actual use of the trademark and the association of the mark with the goods or services it represents, even if it hasn't been formally registered with the USPTO.
2. How Do Common Law Rights Work?
If you are the first to use a mark in commerce within a particular geographic area, you gain exclusive rights to that mark in that region, so long as another business does not have a pending or registered mark with the USPTO. These rights allow you to prevent others from using a confusingly similar mark in connection with the same or related goods or services even if you have not filed for official protection of the trademark.
3. Limitations of Common Law Rights
While common law rights provide some level of protection, they are more limited than those obtained through federal registration. They only apply to the geographic area where the trademark is actually used, which means your rights could be restricted to a local or regional market. Additionally, proving your common law rights can be more difficult in case of a dispute, as there is no formal record of your trademark's use. The geographical restriction of common law rights can prevent you from expanding your brand’s protection as your business grows. For example, if you start using your trademark in California and someone else starts using the same mark in New York, then you would both be prevented from expanding your business into the other state as the other already has common law rights in that geographic area.
4. How to Strengthen Common Law Rights
Although common law rights don’t require registration, it’s still a good idea to keep detailed records of your first use, such as advertising materials, sales data, and customer interactions. These can help establish your rights if another party tries to challenge your use of the mark.
5. When Should You Register Your Trademark?
While common law rights can be valuable, registering your trademark with the USPTO provides broader protection and legal benefits, such as the ability to sue in federal court and nationwide protection. Federal registration also helps prevent others from registering a similar mark. Keep in mind that you don’t have to be using a mark in commerce to obtain protection. If you file an intent-to-use application with the USPTO, your claim to the mark will take priority over anyone else's common law rights if they began using the mark after you filed your application.
Common law trademark rights offer protection based on the actual use of a mark in commerce, even without official registration. While these rights can help you protect your brand in a specific geographic area, registering your trademark with the USPTO provides more comprehensive legal safeguards. Whether you’re operating locally or planning to expand nationally, understanding common law rights is essential to maintaining control over your brand.
If you have any questions about trademark registration, do not hesitate to reach out to us. Go to https://long.law/intake to book a free consultation.