I received a question about filing for a business outside of California. While I agree that paying $800 year for a small business is ridiculous, the solution is not becoming a foreign (out-of-California) entity. I'll explain below, but the best solution sometimes a simple proprietorship or partnership. Here's why.
Any limited liability entity headquartered in California needs to register in California.
1) Filing in California gives you the privilege of enforcing your contractual rights in California. A court will dismiss a non-registered plaintiff because the privilege to enforce your contractual rights is in the state of the headquarters, as documented by the Articles.
2) California requires entities doing business in California but registered outside of California to file as a foreign entity. The filing expenses are the same and this provides full rights (including name protection through registration), but at the same annual cost of income tax (Franchise Fee). A foreign entity can omit the foreign entity registration if its operations in California are insubstantial, as by being transient or without an instate office, officers, or employees. If a person with the entity lives and conducts business for the entity in California, it qualifies as a foreign entity. Another way of thinking about registration is whether the entity is active in California. If the assets and operations are in another state, foreign entity registration is less likely a requirement.
3) While its true that other states do not require disclosure of officer names, a good sleuth can get the names without a lot of effort.
4) In every state, you must name an agent for service of process. Outside of California, that means 'hiring' a company to have a doorway and a person inside the door during regular business hours. The job of the person is to receive lawsuits and notices. The job of the person is NOT to make sure you receive the lawsuit or notice. An entity is subject to a default judgment and registration suspension if the entity fails to timely and properly reply.
5) Some states require you to effectively include portions of the operating agreement (bylaws) in your articles. This can tell people far more about your company than the company name, and require significant effort making sure the articles comply with the requirement.
6) California is comparatively lax about how the owners run the entity. Don't commit fraud, or break financial or security laws, and you are OK. Other states tell you how to run your business and require these statements in your articles or operating agreement.
7) Lastly - failure to register in California may result in substantial fines based on income and the minimum franchise fees.
As to non-registration (a simple partnership):
The usual goal of small business registration is limited liability. Liability arises from contractual obligations or negligence. If the business hasn't signed contracts of obligation and is not yet providing a product or service, the risk of liability is basically the same as having a hobby. If an obligation would risk more than you have on-hand to fulfill the obligation, then limited liability is warranted. Otherwise- what is there to worry about? If at some time you must register and quickly, there are ways to get registration within a week or two for the expense of a few hundred dollars, which is much less than the annual minimum franchise fee.
Also - many insurance companies offer errors and omission insurance. O&E covers you for business losses based on circumstances outside your control, generally including simple negligence, and some contractual obligations based on the policy. You are not covered for gross or intention negligence, fraud or breaking financial or security laws - but then limited liability does not cover those either.
Lastly - if you want name or brand protection, the filing of a city business license, county fictitious statement, and state and federal trademarks decently provide that protection. Caveat - the California Secretary of State does not crosscheck the business entity and trademark registrations. You get that security ONLY by registration.
Thursday, November 17, 2011
Friday, October 14, 2011
What Is a Nursing Home?
I received a question about the definition of a Nursing Home. Over the years, I have visited many family members in such facilities. When I worked as a laboratory medical technician, I worked in the acute care areas of hospitals, in their care units and clinics, and in their adjacent nursing facilities. Thus, I have many, many memories of such places, and it turns out, the definition of a Nursing Home is a legal question suitable for this Blog.
In California, a 'nursing home' is not legally defined, but taking the term and words 'nursing home' generically, 'nursing' infers nursing care is provided while 'home' infers the facility provides long-term care. This seems reasonable in that California defines certain patient care services as within the practice of nursing. (Cal. Business & Professions Code Sec. 2725 et. seq.).
Under California law, there are many different types of facilities that could fit the generic term above. In reading these definitions, the rational for defining facilities seems to be based on (1) the different types of services provided, and (2) the facilities' staffing availabilities.
For example, a "general acute care hospital" provides medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services. (Cal. Health & Safety Code Sec. 1250(a). A Skilled Nursing Facility (SNF) "means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis." (Cal. Health & Safety Code Sec. 1250(c)). An "intermediate care facility", on the other hand, provides "skilled nursing supervision" but not "continuous skilled nursing care". (Cal. Health & Safety Code Sec. 1250(d)). So for most people, a nursing home is likely a Skilled Nursing Facility or at least an Intermediate Care Facility. These should also fit the definition of a "nursing facility" under the Medicare and Medicaid programs. (Cal. Health & Safety Code Sec. 1250(k)).
California also differentiates based on patient and resident needs, as by whether the patient or resident is ambulatory (able to walk) and whether the person's infirmity is physical or mental, temporary (rehabilitative) or degrading, chemically related, developmentally related or generally age related or some other type.
Another distinction is by the vocation of the person providing the services. A doctor is present at all times at an acute care center. (Cal. Health & Safety Code Sec. 1250(a)). The definition of Skilled Nursing Facility, however, omits "medical staff". The SNFs I've seen though, were adjacent to or close to a hospital so medical staff was at least close by.
The legal definitions may also have developed to provide for nursing supervision (an "intermediate care facility") rather than nursing care (SNF). When I worked as a laboratory medical technician, a doctor made periodic visits while a seasoned Registered Nurse (RN) was present at all times in the facility and supervised the care given by less experienced RNs and the Certified Nursing Assistants (CNA) (a.k.a. Licensed Vocational Nurse outside of California).
Later in my career, I observed that the person making the periodic visits wasn't the doctor, but rather the seasoned RN, with a less experienced RN supervising the care given by the CNAs.
Now, with the exception of an acute care facility (a.k.a. hospital), it seems RNs are gone from most nursing facilities, and the only CNA is the pill-passer. The other care providers may have vocational training but it seems they are not certified or equivalently licensed.
My other observation is that many facilities have silently dropped the term "Nursing" from the business name because (seemingly to me) no one in administration, on staff or visiting has any significant nursing care training. Instead, they have "care managers". I'm told "care managers" have at least 'minimal care training but in my ten years of dealing with them, it seems more 'minimal' than 'care'.
As such, this article has gone full-circle. Based on law and my observations, a place with the word 'nursing' in its name likely provides nursing care and has (I hope) an RN on hand at some time during the day with CNAs providing nursing care and pill passing. If 'nursing' is not in the name, there is likely no RN, no CNA or otherwise, in the building - except perhaps for a patient or resident.
In California, a 'nursing home' is not legally defined, but taking the term and words 'nursing home' generically, 'nursing' infers nursing care is provided while 'home' infers the facility provides long-term care. This seems reasonable in that California defines certain patient care services as within the practice of nursing. (Cal. Business & Professions Code Sec. 2725 et. seq.).
Under California law, there are many different types of facilities that could fit the generic term above. In reading these definitions, the rational for defining facilities seems to be based on (1) the different types of services provided, and (2) the facilities' staffing availabilities.
For example, a "general acute care hospital" provides medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services. (Cal. Health & Safety Code Sec. 1250(a). A Skilled Nursing Facility (SNF) "means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis." (Cal. Health & Safety Code Sec. 1250(c)). An "intermediate care facility", on the other hand, provides "skilled nursing supervision" but not "continuous skilled nursing care". (Cal. Health & Safety Code Sec. 1250(d)). So for most people, a nursing home is likely a Skilled Nursing Facility or at least an Intermediate Care Facility. These should also fit the definition of a "nursing facility" under the Medicare and Medicaid programs. (Cal. Health & Safety Code Sec. 1250(k)).
California also differentiates based on patient and resident needs, as by whether the patient or resident is ambulatory (able to walk) and whether the person's infirmity is physical or mental, temporary (rehabilitative) or degrading, chemically related, developmentally related or generally age related or some other type.
Another distinction is by the vocation of the person providing the services. A doctor is present at all times at an acute care center. (Cal. Health & Safety Code Sec. 1250(a)). The definition of Skilled Nursing Facility, however, omits "medical staff". The SNFs I've seen though, were adjacent to or close to a hospital so medical staff was at least close by.
The legal definitions may also have developed to provide for nursing supervision (an "intermediate care facility") rather than nursing care (SNF). When I worked as a laboratory medical technician, a doctor made periodic visits while a seasoned Registered Nurse (RN) was present at all times in the facility and supervised the care given by less experienced RNs and the Certified Nursing Assistants (CNA) (a.k.a. Licensed Vocational Nurse outside of California).
Later in my career, I observed that the person making the periodic visits wasn't the doctor, but rather the seasoned RN, with a less experienced RN supervising the care given by the CNAs.
Now, with the exception of an acute care facility (a.k.a. hospital), it seems RNs are gone from most nursing facilities, and the only CNA is the pill-passer. The other care providers may have vocational training but it seems they are not certified or equivalently licensed.
My other observation is that many facilities have silently dropped the term "Nursing" from the business name because (seemingly to me) no one in administration, on staff or visiting has any significant nursing care training. Instead, they have "care managers". I'm told "care managers" have at least 'minimal care training but in my ten years of dealing with them, it seems more 'minimal' than 'care'.
As such, this article has gone full-circle. Based on law and my observations, a place with the word 'nursing' in its name likely provides nursing care and has (I hope) an RN on hand at some time during the day with CNAs providing nursing care and pill passing. If 'nursing' is not in the name, there is likely no RN, no CNA or otherwise, in the building - except perhaps for a patient or resident.
Labels:
business,
CNA,
medicine,
Nursing Home,
patient,
professional,
RN
Thursday, May 26, 2011
Tattoos and Copyright
There's a sort of a boxing match going on now whether Mike Tyson's tattooist has a legal interest in the tattoo on the face of Ed Helms in the Warner Brothers movie, "The Hangover, Part II". The lawyers for S. Victor Whitmill, the tattooist, will disagree with me, but my answer is no.
Copyright protects "original works of authorship [that] can be perceived, reproduced, or otherwise communicated". (17 U.S.C. §102 (abridged)). Like most ideas, many works of art are not wholly original as there is some background in a previous work. Many people, including S. Victor Whitmill, call this inspiration. As a hard rule, requiring complete originality would disallow copyright because inspiration would negate originality to the whole of the work. Fortunately, the U.S. Supreme Court opened originality to "a two-fold requirement of independent creation and some minimal degree of creativity." (Feist.)
The benefit of this two-part independent creation and creativity rule is that a tattoo artist can get copyright protection in the portion not copied from the original. Thus, a tattoo artist does not get copyright protection by making a tattoo of a picture (because that is not independent creation), but the tattoo artist can get copyright protection in the inspired portion that has at least a minimal degree of creativity. In other words, the copyright protection may include an inspired portion, but not a copied portion.
Which brings us to whether S. Victor Whitmill has a copyright. He admitted his work was not independent creation. The crux of Whitmill's success will be in showing his work is creatively different, and not just different than the Maori tattoos that inspired him. That's because there is more to creativity than inspiration. The Warner Brothers lawyers will attempt to show that the Tyson tattoo is a combination of Maori tattoos, other tattoos, and even other art as well. This type of debate is common in copyright disputes to disallow the claimed creativity by showing that the parts that are independent from a major inspiration are common elements in the theme of the work, in essence, copied from elsewhere in the field of the art.
For example, movies often contain common elements, guns in westerns, jumps in car chases, etc. Even tattoos contain common elements. Many tattoos are a kind of 'warrior' brand of art by including knives, other weapons, pseudo-weapons, slogans, etc. The Warner Brothers lawyers will likely parade people and photos to the judge's discontent to show the Tyson tattoo is merely a combination of tattoos and weapons.
This anti-copyright argument has its basis in that we as a society do not want someone to use a variation on a theme to lock up copyright protection to the theme. In other words, Maori tattoos have been in existence for a long time, there are many books on Maori tattoos, and tattoo artists study tattoos just as any artist studies works of their peers and predecessors. As a society, we do not want art to lock up a marginally creative idea that prevents its enjoyment by everyone.
Looking at the Tyson tattoo, in fact, reveals the elements of knife-like tips, curves, and double and triple parallel lines that are thematic to Maori tattoos. The three-piece knuckle slasher, meanwhile, is akin to that of Wolverine, i.e., a weapon. As they say in law, in the totality of circumstances, the creativity of the Tyson tattoo is thin, so thin in fact, that Warner Brothers is free to copy it.
If you are or know a tattoo artist, do not be discouraged. Tattoos are art, and copyright will protect sufficiently creative art. Before you ponder on, though, consider copyright registration for your tattoo art, the filing fee is only $35. The Copyright Office rarely denies registration and registration is proof of both your creation of the art and the date of creation. Besides being inexpensive, registration is a requirement before you can sue for copyright infringement.
Copyright protects "original works of authorship [that] can be perceived, reproduced, or otherwise communicated". (17 U.S.C. §102 (abridged)). Like most ideas, many works of art are not wholly original as there is some background in a previous work. Many people, including S. Victor Whitmill, call this inspiration. As a hard rule, requiring complete originality would disallow copyright because inspiration would negate originality to the whole of the work. Fortunately, the U.S. Supreme Court opened originality to "a two-fold requirement of independent creation and some minimal degree of creativity." (Feist.)
The benefit of this two-part independent creation and creativity rule is that a tattoo artist can get copyright protection in the portion not copied from the original. Thus, a tattoo artist does not get copyright protection by making a tattoo of a picture (because that is not independent creation), but the tattoo artist can get copyright protection in the inspired portion that has at least a minimal degree of creativity. In other words, the copyright protection may include an inspired portion, but not a copied portion.
Which brings us to whether S. Victor Whitmill has a copyright. He admitted his work was not independent creation. The crux of Whitmill's success will be in showing his work is creatively different, and not just different than the Maori tattoos that inspired him. That's because there is more to creativity than inspiration. The Warner Brothers lawyers will attempt to show that the Tyson tattoo is a combination of Maori tattoos, other tattoos, and even other art as well. This type of debate is common in copyright disputes to disallow the claimed creativity by showing that the parts that are independent from a major inspiration are common elements in the theme of the work, in essence, copied from elsewhere in the field of the art.
For example, movies often contain common elements, guns in westerns, jumps in car chases, etc. Even tattoos contain common elements. Many tattoos are a kind of 'warrior' brand of art by including knives, other weapons, pseudo-weapons, slogans, etc. The Warner Brothers lawyers will likely parade people and photos to the judge's discontent to show the Tyson tattoo is merely a combination of tattoos and weapons.
This anti-copyright argument has its basis in that we as a society do not want someone to use a variation on a theme to lock up copyright protection to the theme. In other words, Maori tattoos have been in existence for a long time, there are many books on Maori tattoos, and tattoo artists study tattoos just as any artist studies works of their peers and predecessors. As a society, we do not want art to lock up a marginally creative idea that prevents its enjoyment by everyone.
Looking at the Tyson tattoo, in fact, reveals the elements of knife-like tips, curves, and double and triple parallel lines that are thematic to Maori tattoos. The three-piece knuckle slasher, meanwhile, is akin to that of Wolverine, i.e., a weapon. As they say in law, in the totality of circumstances, the creativity of the Tyson tattoo is thin, so thin in fact, that Warner Brothers is free to copy it.
If you are or know a tattoo artist, do not be discouraged. Tattoos are art, and copyright will protect sufficiently creative art. Before you ponder on, though, consider copyright registration for your tattoo art, the filing fee is only $35. The Copyright Office rarely denies registration and registration is proof of both your creation of the art and the date of creation. Besides being inexpensive, registration is a requirement before you can sue for copyright infringement.
Monday, November 29, 2010
Latest Car Rental Scam
Latest Car Rental Scam – Charges for Pre-existing Damage and Loss of Use
It's practically a law of economics that when corporate business falls in a recession, each consumer must pay more to make up the difference. Case in point: You rent a car, have an accident, and under the contract, you are responsible for the costs of repairing and lost use of the car, but minor scratches are no-cost normal wear. Right?
Not anymore. Several articles in the last two years note that car rental agencies are dinging renters for damages that don't even qualify as dings. One renter failed to receive his $763 deposit, which according to Thrifty was forfeit for damage. The damage in the photograph, however, was a "barely visible nick on the car door and a small scratch on one bumper."
One Enterprise renter received a bill for $600, with a photo of the damages – except that the car in the photo was not the car he had rented. An Enterprise renter failed to mark normal wear damages on the check out sheet, and was charged several hundreds of dollar for the cost of repair and the time off the lot to repair the "damages."
So, what's a car renter to do? The first step before leaving home is to check whether your insurance or credit card coverage includes rental cars. It is also always a good idea to travel with your proof of insurance and agent contact information.
The first step on the lot is to carefully inspect the car – outside and inside - before starting the car, and mark the checkout sheet with every scratch, spot, or smudge. Be sure also to completely check the headliner, seats and carpeting for food stains and tears. Document everything.
The second step is to photograph the car before leaving the lot, include the built-in date & time stamp – so you can use your evidence against theirs. As one former car rental agent said, "From my experience, many customers were blamed for damage they did not cause.”
Another option, as much as it pains me to say to say this, is to purchase the Collision Damage Waiver (CDW) or Loss Damage Waiver (LDW). CDW and LDW are not collision insurance. It just means that the rental car company will pay for accident damage or loss of use that occurs to the vehicle.
Lastly, when returning the vehicle, either demand a full drop-off inspection before you leave the lot, or again photograph or videotape the car – and let the agent know that you did. As the former car rental agent also said, "agency employees aren’t in the customer service business. They’re paid a commission [based on] the dollar amount we’ve brought in each month and quarter."
If after all that, you do get dinged, you have a few options. If your credit card is charged, call your card service number and dispute the charge with a demand that the car rental agency provide a body shop repair invoice.
Then call the rental office, get the name of the person you are talking to, demand a retraction of the charge until you are provided proof of damage and proof of repair and remind them that you have evidence that contradicts them.
Don't be surprised if you are told regional office approval is required. It's may be another stall tactic, but ask the agent for the name and telephone and fax number of the person at the regional office. If that fails, write a letter of dispute to the corporate level and copy the state insurance commissioner in the state in which you rented the car. Be sure to include copies of your evidence and that you are disputing the charge with a demand that the car rental agency provide proof of damage and a body shop repair invoice.
Your last option is small claims court, although don't be surprised to hear from the rental agency that the contract states that disputes must first be arbitrated somewhere outside your state, and likely not even the in the state where you rented the car. If so, contact the insurance commissioner in both states, and a consumer advocate agency in the company's 'home' state. Your local TV station also provide consumer advocate service – rip-offs make for good news.
References
Christopher Elliott, Washington Post, Paying upfront for rental car nicks and scratches, 11/14/2010, http://www.mercurynews.com/travel/ci_16596785.
Christopher Elliott, Tribune Media Services, Broadsided by a rental car bill, July 29, 2009, http://articles.cnn.com/2009-07-29/travel/rental.car.repair_1_rental-car-car-from-enterprise-rent-a-car-significant-scratches?_s=PM:TRAVEL
Christopher Elliott, Washington Post, 6 secrets car rental companies don’t want you to know, April 16, 2008, http://www.elliott.org/blog/6-secrets-car-rental-companies-dont-want-you-to-know/
Christopher Elliott, Tribune Media Services, Who should pay for scratch on rental car? 9/3/2010,
http://www.msnbc.msn.com/id/38937917/ns/travel-travel_tips
http://www.startribune.com/lifestyle/travel/102215919.html
Rent A Car – Preparation, 9/4/2010, http://www.smartmotorist.com/auto-financing-warranties-and-leasing/rent-a-car.html
http://www.failingenterprise.com/forums/enterprise-rent-car-customers-forum/11817-rental-scratch.html
It's practically a law of economics that when corporate business falls in a recession, each consumer must pay more to make up the difference. Case in point: You rent a car, have an accident, and under the contract, you are responsible for the costs of repairing and lost use of the car, but minor scratches are no-cost normal wear. Right?
Not anymore. Several articles in the last two years note that car rental agencies are dinging renters for damages that don't even qualify as dings. One renter failed to receive his $763 deposit, which according to Thrifty was forfeit for damage. The damage in the photograph, however, was a "barely visible nick on the car door and a small scratch on one bumper."
One Enterprise renter received a bill for $600, with a photo of the damages – except that the car in the photo was not the car he had rented. An Enterprise renter failed to mark normal wear damages on the check out sheet, and was charged several hundreds of dollar for the cost of repair and the time off the lot to repair the "damages."
So, what's a car renter to do? The first step before leaving home is to check whether your insurance or credit card coverage includes rental cars. It is also always a good idea to travel with your proof of insurance and agent contact information.
The first step on the lot is to carefully inspect the car – outside and inside - before starting the car, and mark the checkout sheet with every scratch, spot, or smudge. Be sure also to completely check the headliner, seats and carpeting for food stains and tears. Document everything.
The second step is to photograph the car before leaving the lot, include the built-in date & time stamp – so you can use your evidence against theirs. As one former car rental agent said, "From my experience, many customers were blamed for damage they did not cause.”
Another option, as much as it pains me to say to say this, is to purchase the Collision Damage Waiver (CDW) or Loss Damage Waiver (LDW). CDW and LDW are not collision insurance. It just means that the rental car company will pay for accident damage or loss of use that occurs to the vehicle.
Lastly, when returning the vehicle, either demand a full drop-off inspection before you leave the lot, or again photograph or videotape the car – and let the agent know that you did. As the former car rental agent also said, "agency employees aren’t in the customer service business. They’re paid a commission [based on] the dollar amount we’ve brought in each month and quarter."
If after all that, you do get dinged, you have a few options. If your credit card is charged, call your card service number and dispute the charge with a demand that the car rental agency provide a body shop repair invoice.
Then call the rental office, get the name of the person you are talking to, demand a retraction of the charge until you are provided proof of damage and proof of repair and remind them that you have evidence that contradicts them.
Don't be surprised if you are told regional office approval is required. It's may be another stall tactic, but ask the agent for the name and telephone and fax number of the person at the regional office. If that fails, write a letter of dispute to the corporate level and copy the state insurance commissioner in the state in which you rented the car. Be sure to include copies of your evidence and that you are disputing the charge with a demand that the car rental agency provide proof of damage and a body shop repair invoice.
Your last option is small claims court, although don't be surprised to hear from the rental agency that the contract states that disputes must first be arbitrated somewhere outside your state, and likely not even the in the state where you rented the car. If so, contact the insurance commissioner in both states, and a consumer advocate agency in the company's 'home' state. Your local TV station also provide consumer advocate service – rip-offs make for good news.
References
Christopher Elliott, Washington Post, Paying upfront for rental car nicks and scratches, 11/14/2010, http://www.mercurynews.com/travel/ci_16596785.
Christopher Elliott, Tribune Media Services, Broadsided by a rental car bill, July 29, 2009, http://articles.cnn.com/2009-07-29/travel/rental.car.repair_1_rental-car-car-from-enterprise-rent-a-car-significant-scratches?_s=PM:TRAVEL
Christopher Elliott, Washington Post, 6 secrets car rental companies don’t want you to know, April 16, 2008, http://www.elliott.org/blog/6-secrets-car-rental-companies-dont-want-you-to-know/
Christopher Elliott, Tribune Media Services, Who should pay for scratch on rental car? 9/3/2010,
http://www.msnbc.msn.com/id/38937917/ns/travel-travel_tips
http://www.startribune.com/lifestyle/travel/102215919.html
Rent A Car – Preparation, 9/4/2010, http://www.smartmotorist.com/auto-financing-warranties-and-leasing/rent-a-car.html
http://www.failingenterprise.com/forums/enterprise-rent-car-customers-forum/11817-rental-scratch.html
Labels:
Car Rental,
Fraud,
Loss of Use,
Pre-existing Damage,
Scam
Tuesday, November 23, 2010
Introduction to Copyright
(FN1) Copyright provides the creator of a qualified work the legal authority to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. The legal considerations regarding copyright include the qualified work, limitations on the copyright, registration, and licensing. Copyright is a property right, meaning that the creator may sell, give, exclusively license or assign, or even grant non-exclusive licenses. Other laws describe the creator's right to recover an assignment, as well as defining circumstances when the nature of employment grants ownership in the work to another person.
QUALIFIED WORKS
Copyright applies to eights types of works. These are (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, (such as a play or musical) including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (FN2).
As indicated by the list of the qualified works, some works may include other types of work. A musical composition may have multiple copyright owners because one person authored a literary work, such as a poem or book, which became the lyrics, and another person authored the notes of the musical composition. Conversely, the producer of a play, a musical or a screenplay could create and own the copyright in the words of the work, and in the music accompanying the work if the same author also created the music.
In other situations, a song composer might grant a license to a band play a song. The band might then perform the song for a recording studio, which would own the sound recording rights, while a movie studio may hire the band and a choreographer for a movie. In a majority of cases, the band still owns its performance rights, the choreographer gets the rights to the dance moves the choreographer wrote for the backup performers, while the movie studio would own the movie rights. Along the way are artists creating posters (pictorial and graphic works) for the band, the recording studio, or the movie studio.
One point of clarification regards a confusion of copyright with patents and trademarks. Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (FN3). These protections apply only to patents, if the idea is eligible, or to trade secrets, if the idea is used in business and is properly kept a secret. A copyright protected work, generally artwork, may be used as a trademark, if the work is properly used to identify a brand of product or service.
LIMITATIONS ON COPYRIGHT
While there are eight types of works protected by copyright, there are only six legal rights to the power of a copyright owner to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. (FN4). The six legal rights fall into two categories, the right to copy, and the right of public performance. If a type of work is not covered by a copyright, then the public may freely exploit that type of work. As a matter of implicit exception, people have the right of private performance. The qualifications of a private performance, however, are limited. Home performances are usually private, although any commercial activity related to the performance is often enough to qualify as a public performance.
The first of the rights applies to all eight types of work. The creator may grant permission to anyone to reproduce the work in copies, or in the case the sound recordings, as phonorecords. A copy literally means exact reproductions. A song composer or the composers of the music and lyrics the composers may grant a license to a sheet music publisher to reproduce the sheet music. A band may record an album at home or rent a studio, and grant a license to a music publisher to reproduce the recording.
The second of the rights applies to disposition of the copies, i.e. the reproductions. The creator may grant permission to anyone to copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
The third of the rights applies to the creation of derivative works based on the work. A derivative work is something other than an exact copy of the original work, such as taking a photograph of a painting, a painting a picture onto a tile, creating a motion picture based on a play, or even taking an image and distorting it for artistic purposes. The protection of derivative works is important for creators that create a work in one format (film), and then license a company to create the derivative work another form, such as a digital copy.
The fourth of the rights applies to allowing people to perform the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. This right protects authors and artists by requiring permission to use the protected work as part of a public performance. This right is often the subject of a performance license, which is discussed below.
The fifth of the rights applies to allowing people to display the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. This right protects authors and artists by requiring permission for people to publicly display, as for commercial purposes, works that they acquired for private display. Motion picture owners are the people who primarily enforce this right, although it legally applies to the use of paintings and sculpture in a commercial setting. This right is also discussed below.
The sixth right applies to people publicly performing sound recordings by means of a digital audio transmission (DAT). As suggested by the technology of digital audio transmission, this is a relatively new copyright, and generally applies to Internet and Broadband broadcasting. It would also apply, however, to the use of mp3 and other digital audio players used in a public setting. This right is discussed below in the licensing section.
THE BENEFITS OF REGISTRATION
As with other forms of intellectual property, copyright registration provides several benefits. The first benefit is that registration establishes a public record of the copyright claim as of the date of registration. Additionally, copyright registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. Published works in particular benefit in that registration establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate if registration is made before or within five years of publication. (FN5).
Unlike other forms of intellectual property, copyright registration is needed in the U.S. to assert protection. This is because registration is required for works of U. S. origin before the copyright owner can even file an action for infringement. (FN6).
Saving the best for last, however, is the benefit of statutory damages and attorney's fees for infringing activity. For infringing activity before the date of registration, a copyright owner may recover only actual damages (lost profits) and the profits from the infringing activity. If however, registration is made within three months after publication of the work and for infringing activity as of the date of registration, the copyright owner may recovery statutory damages of $750 to $30,000 per infringement, plus attorney's fees, and up to $150,000 if the infringer knew the copying activity was infringement. (FN7). In instances of file sharing, where lost profits are generally small and there are no profits from the infringing activity, registration immediately after creation is practically a mandate for any recovery.
THE REGISTRATION PROCESS
The categories of copyright registration are a little different than the categories of works or of licensing. The categories of works are groups created by Congress according to the order in which Congress passed legislation protecting that class of works. The categories of licensing exist according to the order in which companies organized to license works that did not have organized protection. Registration, on the other hand, developed after legislation, but the Copyright Office used its rule-making capacity to categorize registration. So while there are eight classes of works and four classes of organized licensing, there are six classes of registration that only in part match the works and licensing classes. These are literary works, visual arts work, performing arts work, motion picture/AV work, sound recordings, and serial issue works.
The good news is that if something qualifies for copyright protection, it generally qualifies for copyright registration, and copyright registration is both simple and inexpensive. The easiest form of registration is electronic filing with a digital copy of the work uploaded for registration.
The copyright registrant (or the registered attorney) first provides information about the work, including the date of creation and the date of publication (if published) and the author's information. The next sections ask for the owner's contact information, the contact information for people who might want to license the work, the contact information and address for the Copyright Office to use, and finally, a certifying signature.
The copyright registrant (or registered attorney) then uploads the digital file, which is often in native format as the Copyright Office accepts 44 file formats. Acceptable formats for images include jpg, tif or tiff; the formats for word processing documents may be doc, rtf, pdf, htm, and txt. The Copyright Office also accepts database and presentation formats and compressed files of these files as well. (FN8). The last step is fee payment, which for electronic filing is currently $35, and may be by credit card. (FN9).
In the rare instance of file incompatibility, or due to the lack of capable Internet service, a registrant may send the copyright registration documents by mail or courier. For these occasions, the Copyright Office prefers the registrant to download Form CO from the Copyright Office website. (FN10). Form CO is a computer fillable form. When used with Adobe Reader or Adobe Acrobat, Form CO converts the information typed into the fields into a 2-dimensionable bar code, which allows the Copyright Office to scan the form information directly into the Copyright Office computer. After filling out Form CO, the registrant prints the form, writes a check for $50 to the Copyright Office, and sends the Form CO, plus the check and the work for registration to the Copyright Office. Using Adobe Reader (which is free) or Adobe Acrobat is important, as other programs do not create the 2-dimensionable bar code, in which case the Copyright Office charges $65.
The last alternative is filing the old-fashioned way, using forms that are customized according to the type of work. There is Form TX for literary works, Form VA for visual arts works, Form PA for performing arts works, including motion pictures, Form SR for sound recordings, and lastly, Form SE for single serials. As these forms require manual handling, the filing fee is $65.
Although the Copyright Office still accepts microform, photographs, slick advertisements and color photocopies, electronic media such as audiocassettes, videocassettes, CDs, and DVDs are also accepted. (FN11). An important consideration for mailed material is that the Copyright Office is irradiating all mail to kill harmful organisms The Copyright Office suggests that any CD and DVD be packaged in standard full-sized jewel box as mail irradiation weakens slim-line cases.
FN1) This posting is Part 1 of a series on Copyright.
FN2) 17 U.S.C. § 102(a).
FN3) 17 U.S.C. § 102(b).
FN4) 17 U.S.C. § 106.
FN5) 17 U.S.C. § 410(c).
FN6) 17 U.S.C. § 411(a).
FN7) 17 U.S.C. §§ 412, 504(c), 505.
FN8) U.S. Copyright Office, Help: List of Acceptable File Types, Revised: 16-Jun-2009, http://www.copyright.gov/eco/help-file-types.html
FN9) U.S. Copyright Office, Fees, Revised: 17-Sep-2009, http://www.copyright.gov/docs/fees.html.
FN10) U.S. Copyright Office, Copyright Notices, http://www.copyright.gov/forms/.
FN11) Copyright Office, Form CO Instructions, Revised 08/2009, http://www.copyright.gov/forms/formco2d-ins.pdf
QUALIFIED WORKS
Copyright applies to eights types of works. These are (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, (such as a play or musical) including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (FN2).
As indicated by the list of the qualified works, some works may include other types of work. A musical composition may have multiple copyright owners because one person authored a literary work, such as a poem or book, which became the lyrics, and another person authored the notes of the musical composition. Conversely, the producer of a play, a musical or a screenplay could create and own the copyright in the words of the work, and in the music accompanying the work if the same author also created the music.
In other situations, a song composer might grant a license to a band play a song. The band might then perform the song for a recording studio, which would own the sound recording rights, while a movie studio may hire the band and a choreographer for a movie. In a majority of cases, the band still owns its performance rights, the choreographer gets the rights to the dance moves the choreographer wrote for the backup performers, while the movie studio would own the movie rights. Along the way are artists creating posters (pictorial and graphic works) for the band, the recording studio, or the movie studio.
One point of clarification regards a confusion of copyright with patents and trademarks. Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (FN3). These protections apply only to patents, if the idea is eligible, or to trade secrets, if the idea is used in business and is properly kept a secret. A copyright protected work, generally artwork, may be used as a trademark, if the work is properly used to identify a brand of product or service.
LIMITATIONS ON COPYRIGHT
While there are eight types of works protected by copyright, there are only six legal rights to the power of a copyright owner to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. (FN4). The six legal rights fall into two categories, the right to copy, and the right of public performance. If a type of work is not covered by a copyright, then the public may freely exploit that type of work. As a matter of implicit exception, people have the right of private performance. The qualifications of a private performance, however, are limited. Home performances are usually private, although any commercial activity related to the performance is often enough to qualify as a public performance.
The first of the rights applies to all eight types of work. The creator may grant permission to anyone to reproduce the work in copies, or in the case the sound recordings, as phonorecords. A copy literally means exact reproductions. A song composer or the composers of the music and lyrics the composers may grant a license to a sheet music publisher to reproduce the sheet music. A band may record an album at home or rent a studio, and grant a license to a music publisher to reproduce the recording.
The second of the rights applies to disposition of the copies, i.e. the reproductions. The creator may grant permission to anyone to copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
The third of the rights applies to the creation of derivative works based on the work. A derivative work is something other than an exact copy of the original work, such as taking a photograph of a painting, a painting a picture onto a tile, creating a motion picture based on a play, or even taking an image and distorting it for artistic purposes. The protection of derivative works is important for creators that create a work in one format (film), and then license a company to create the derivative work another form, such as a digital copy.
The fourth of the rights applies to allowing people to perform the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. This right protects authors and artists by requiring permission to use the protected work as part of a public performance. This right is often the subject of a performance license, which is discussed below.
The fifth of the rights applies to allowing people to display the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. This right protects authors and artists by requiring permission for people to publicly display, as for commercial purposes, works that they acquired for private display. Motion picture owners are the people who primarily enforce this right, although it legally applies to the use of paintings and sculpture in a commercial setting. This right is also discussed below.
The sixth right applies to people publicly performing sound recordings by means of a digital audio transmission (DAT). As suggested by the technology of digital audio transmission, this is a relatively new copyright, and generally applies to Internet and Broadband broadcasting. It would also apply, however, to the use of mp3 and other digital audio players used in a public setting. This right is discussed below in the licensing section.
THE BENEFITS OF REGISTRATION
As with other forms of intellectual property, copyright registration provides several benefits. The first benefit is that registration establishes a public record of the copyright claim as of the date of registration. Additionally, copyright registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. Published works in particular benefit in that registration establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate if registration is made before or within five years of publication. (FN5).
Unlike other forms of intellectual property, copyright registration is needed in the U.S. to assert protection. This is because registration is required for works of U. S. origin before the copyright owner can even file an action for infringement. (FN6).
Saving the best for last, however, is the benefit of statutory damages and attorney's fees for infringing activity. For infringing activity before the date of registration, a copyright owner may recover only actual damages (lost profits) and the profits from the infringing activity. If however, registration is made within three months after publication of the work and for infringing activity as of the date of registration, the copyright owner may recovery statutory damages of $750 to $30,000 per infringement, plus attorney's fees, and up to $150,000 if the infringer knew the copying activity was infringement. (FN7). In instances of file sharing, where lost profits are generally small and there are no profits from the infringing activity, registration immediately after creation is practically a mandate for any recovery.
THE REGISTRATION PROCESS
The categories of copyright registration are a little different than the categories of works or of licensing. The categories of works are groups created by Congress according to the order in which Congress passed legislation protecting that class of works. The categories of licensing exist according to the order in which companies organized to license works that did not have organized protection. Registration, on the other hand, developed after legislation, but the Copyright Office used its rule-making capacity to categorize registration. So while there are eight classes of works and four classes of organized licensing, there are six classes of registration that only in part match the works and licensing classes. These are literary works, visual arts work, performing arts work, motion picture/AV work, sound recordings, and serial issue works.
The good news is that if something qualifies for copyright protection, it generally qualifies for copyright registration, and copyright registration is both simple and inexpensive. The easiest form of registration is electronic filing with a digital copy of the work uploaded for registration.
The copyright registrant (or the registered attorney) first provides information about the work, including the date of creation and the date of publication (if published) and the author's information. The next sections ask for the owner's contact information, the contact information for people who might want to license the work, the contact information and address for the Copyright Office to use, and finally, a certifying signature.
The copyright registrant (or registered attorney) then uploads the digital file, which is often in native format as the Copyright Office accepts 44 file formats. Acceptable formats for images include jpg, tif or tiff; the formats for word processing documents may be doc, rtf, pdf, htm, and txt. The Copyright Office also accepts database and presentation formats and compressed files of these files as well. (FN8). The last step is fee payment, which for electronic filing is currently $35, and may be by credit card. (FN9).
In the rare instance of file incompatibility, or due to the lack of capable Internet service, a registrant may send the copyright registration documents by mail or courier. For these occasions, the Copyright Office prefers the registrant to download Form CO from the Copyright Office website. (FN10). Form CO is a computer fillable form. When used with Adobe Reader or Adobe Acrobat, Form CO converts the information typed into the fields into a 2-dimensionable bar code, which allows the Copyright Office to scan the form information directly into the Copyright Office computer. After filling out Form CO, the registrant prints the form, writes a check for $50 to the Copyright Office, and sends the Form CO, plus the check and the work for registration to the Copyright Office. Using Adobe Reader (which is free) or Adobe Acrobat is important, as other programs do not create the 2-dimensionable bar code, in which case the Copyright Office charges $65.
The last alternative is filing the old-fashioned way, using forms that are customized according to the type of work. There is Form TX for literary works, Form VA for visual arts works, Form PA for performing arts works, including motion pictures, Form SR for sound recordings, and lastly, Form SE for single serials. As these forms require manual handling, the filing fee is $65.
Although the Copyright Office still accepts microform, photographs, slick advertisements and color photocopies, electronic media such as audiocassettes, videocassettes, CDs, and DVDs are also accepted. (FN11). An important consideration for mailed material is that the Copyright Office is irradiating all mail to kill harmful organisms The Copyright Office suggests that any CD and DVD be packaged in standard full-sized jewel box as mail irradiation weakens slim-line cases.
FN1) This posting is Part 1 of a series on Copyright.
FN2) 17 U.S.C. § 102(a).
FN3) 17 U.S.C. § 102(b).
FN4) 17 U.S.C. § 106.
FN5) 17 U.S.C. § 410(c).
FN6) 17 U.S.C. § 411(a).
FN7) 17 U.S.C. §§ 412, 504(c), 505.
FN8) U.S. Copyright Office, Help: List of Acceptable File Types, Revised: 16-Jun-2009, http://www.copyright.gov/eco/help-file-types.html
FN9) U.S. Copyright Office, Fees, Revised: 17-Sep-2009, http://www.copyright.gov/docs/fees.html.
FN10) U.S. Copyright Office, Copyright Notices, http://www.copyright.gov/forms/.
FN11) Copyright Office, Form CO Instructions, Revised 08/2009, http://www.copyright.gov/forms/formco2d-ins.pdf
Monday, November 1, 2010
Minnesota White Deer
November 1, 2010 Dennis E. Simon, Chief, Wildlife Management Section, Division of Fish and Wildlife, 500 Lafayette Road, DNR Building, Saint Paul, Minnesota 55155-4020 FAX to 651-297-4916 Dear Chief Simon, This letter is in response to your arguments in your October 5th letter to Mr. and Mrs. Dreher regarding the hunting of white deer. As you are likely aware, your letter is posted on Facebook, to which a friend directed me. |
You argued, "protecting albino animals would be endorsing a rare genetic anomaly that could lead to other long-term problems in the local deer population." Your argument is valid only if protecting albino animals actually leads to other long-term problems in the local deer population. The facts, however, do not support your theory as the albinism trait and its associated problems die with the white deer unless it successfully mates, which is unlikely unless three factors occur. Instead, hunting deprives a natural predator of its prey and assures the destruction of the white deer.
First, the white deer young must survive long enough to reach maturity. You note that "[a]lbino animals lack pigments in their eyes and skin; thus, they are more susceptible to other problems such as vision loss and skin lesions." In other words, white deer young are more susceptible to death from natural predation and illness than their non-albino brethren. Thus, young white deer are less likely to reach maturity, and as young deer, albino or not, may not be hunted, hunting adult white deer does not affect prevent any suffering of the young white deer.
Second, to propagate the white deer gene and its associated anomalies, the adult white deer must survive long enough to mate. You note that "[a]lbinos [] suffer much higher natural mortality rates because they are much more visible to predators." Because of their vision problems, white deer are also less likely to see natural predators and if in addition are ill, as you stated, the white deer is too weak to flee danger. With this triple hazard to their lives, the white deer are more likely to die of natural predation, and are less likely to survive long enough to mate, even without hunting.
Third, the white deer must actually mate to propagate the trait. As you noted "[a]lbinism is a recessive genetic trait." As you may recall from genetics, two genes are present in each deer for color, each parent contributes one gene, a white deer carries two recessive albinism genes, and a normal appearing deer may carry one albinism gene and one normal gene, or carries two normal genes. Thus, a white deer mating with any deer would cause the fawn to carry at least one of the recessive white deer genes, i.e., nature as nature intended, but the odds of a white deer propagating another white deer depends on the prevalence of the recessive white gene in the deer population.
Based on the statistics of recessive genetics, and that according to one Facebook post there are only six white deer in the park (or less, now that one was shot and killed), I believe that less than one in sixty-four (64) deer in the general population of the park carry one of the recessive white deer genes. (Perhaps you have actual statistics?)
As such, the probability of a white deer mating with another deer and propagating a white deer fawn is 1/64 times 1/4 (the recessive cross mix), or one in two hundred fifty-six (256). This 256 number assumes that a white deer is just as likely to survive to maturity and is equally likely to mate as a normal deer.
Both of these assumptions, however, are likely false and overstate the odds. As you noted, a white deer is less likely to survive to maturity and to mate. Include that defective (vision loss) and ill (skin lesions) animals are generally shunned from mating, the likelihood of a white deer mating is less likely, which means that a white deer is unlikely to propagate its long-term problems in the local deer population.
Lastly, your arguments imply that white deer hunting aids nature. Humans, however, are the only predators capable of seeing deer with magnification and killing them without bodily contact, i.e., with guns or arrows from afar. As the white fur of the white deer increases the likelihood that a hunter would see an adult white deer, and their poor eyesight and health decrease their chance of escape, allowing white deer hunting assures a 100% kill. This kill then deprives a natural predator of its prey, and forces the natural predator to kill another animal perhaps not as defective or ill. Consequently, the hunting of white deer interferes the natural predation in the park, and with their very low numbers, unnecessarily ensures their destruction.
In summary, allowing the hunting of white deer does not affect "other long-term problems in the local deer population," interferes with the usual deer predators, and unnecessarily ensures their destruction. Thus, your arguments against protecting white deer from hunting are unfounded. Please reconsider, and ban the hunting of white deer. Thank you.
Best Regards,
Gerald R. Prettyman
Thursday, April 22, 2010
On Heart Attacks, Aspirin and Lying Down
There is another urban story in the rounds regarding what to do when a life-threatening event strikes. As is usual with these stories, the story of taking aspirin for a heart attack but not lying down is true in part, largely false, and needs a HUGE caution sign with further information.
The idea of taking aspirin for a heart attack dates back to 1991 with a public statement by an emergency medical doctor, but who had not done an actual study. (1). Even though almost 20 years have passed, the research regarding using aspirin to treat heart attacks is still from informal observation, i.e. reviewing the charts of people after a heart attack and seeing that people on aspirin generally lived longer. There is as yet no actual medical research study of placing some people on aspirin and using others as 'controls.' That is likely because the patent on aspirin expired decades ago and no drug company will fund an expensive test without a patent to control the market.
The first flag on this email is that it states an EMT (unnamed) suggested this treatment, but the email did not also include a confirmation from a named doctor or pharmacist, or cite another medical authority. Bayer (the aspirin company), in fact, received a warning letter from the FDA that such labeling and advertisement is illegal. (2). As the FDA warned Bayer, there are several situations in which aspirin should NOT be taken, even during a heart attack, and the consumer labeling would be too complex for a layperson to understand.
Even the American Heart Association has retreated to cautiously state that "research shows that getting an aspirin early in the treatment of a heart attack, along with other treatments EMTs and Emergency Department physicians provide, can significantly improve your chances of survival." (3, Emphasis added.)
Second, while the FDA acknowledges the idea of taking aspirin during the onset of a heart attack, the FDA does not discuss dosage, and in light of the Bayer warning, no authority likely would without a test that no one will perform. (4). Outside of the U.S., one or two of the 81-mg (a.k.a., child's aspirin) seems to be the suggested dose. (5). Bayer reported to the FDA that AspirinCardio, an aspirin-drug it markets OUTSIDE the U.S., states to take two of the 81-mg sizes in the event of a heart attack. (6). Bayer, however, did not state whether they made an actual study, or decided that recommending 2 pills would double the profit over recommending 1 pill.
Importantly, in the event of a heart attack, DO NOT take extra-strength size aspirin, and especially do not take the Bayer "crystal" aspirin. This formulation is dangerous because it contains 850 mg of aspirin (five times Bayer's suggested dose, which may cause stomach bleeding) plus caffeine, which raises blood pressure. (7).
The third concern is that if you are going to take aspirin during a heart attack, consider a chewable aspirin instead of swallowing a whole pill. The chewable version seems to work faster to reduce clotting than swallowing a whole pill. (8).
Lastly, challenge every email-based health advisory. This root of this "don't lie down" myth is well over a year old, yet EMTs and hospitals continue to place heart attack patients flat on a gurney or flat on a bed. (3). This fact alone is a certain signal that the whole email is to some degree false.
Also raising the caution flag is that this email is a revision of a March 2009 version that also lacks authoritative references. (1). Two other troubling aspects of this email are that early distributors that failed to substantiate the facts. One was a member of a group generally better known for name calling than fact checking. (9). Another source recommended Crystal Bayer for heart attacks under the title "Aspirin Crystal: Heart Attack’s New Dear Friend" from Bonsai International News and Reviews – of India. (10). Since when does heart attack have a "dear friend?"
(1) Barbara and David P. Mikkelson, Snopes.com, Bedside Companion, last updated: 1/12/2010, http://www.snopes.com/medical/drugs/aspirin.asp.
(2) Public Health Service, Food and Drug Administration, Warning Letter to Bayer HealthCare LLC, 10/27/2008, last updated: 07/08/2009, http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2008/ucm1048456.htm.
(3) Aspirin in Heart Attack and Stroke Prevention, American Heart Association, undated, http://www.americanheart.org/presenter.jhtml?identifier=4456.
(4) Dept. of Health and Human Services, Food and Drug Administration, Aspirin: Questions and Answers, last updated: 06/18/2009, http://www.fda.gov/Drugs/ResourcesForYou/Consumers/QuestionsAnswers/ucm071879.htm
(5) Robin Parks, MS, Aspirin for heart attack and unstable angina, last updated: May 14, 2007, http://health.yahoo.com/heart-medications/aspirin-for-heart-attack-and-unstable-angina/healthwise--tx4214.html, (citing Danchin N, Durand E (2006). Acute myocardial infarction, search date August 2004. Online version of BMJ Clinical Evidence. http://www.clinicalevidence.com.)
(6) Bayer, AspirinCardio, 11/26/03, Aspirin® in cardiovascular indications including primary prevention indications, http://www.fda.gov/ohrms/dockets/ac/03/briefing/4012B1_05_Appd%202-%20Cardiovascular%20Indications.pdf.
(7) Bayer Aspirin Pain Reliever Extra-Strength Quick Release Crystals, 20-Count Pouches (Pack of 2), http://www.amazon.com/exec/obidos/ASIN/B002GU79LK/, http://www.snopes.com/medical/drugs/aspirin.asp
(8) Harvard Health Publications, Aspirin for heart attack: Chew or swallow?, May 2005, http://www.health.harvard.edu/fhg/updates/update0505a.shtml.
(9) John Vescuso, NEW Aspirin - a reminder!, 2/27/2010, Valley Forge Patriots - Tea Party Conservatives, http://www.meetup.com/VFP-TeaParty09/messages/9324021.
(10) Bonsai International News and Reviews, Aspirin Crystal: Heart Attack’s New Dear Friend, 1/7/2010, http://www.newsandreviews.in/index.php/KnowNow/?title=aspirin-crystal-heart-attack-s-new-dear-.
The idea of taking aspirin for a heart attack dates back to 1991 with a public statement by an emergency medical doctor, but who had not done an actual study. (1). Even though almost 20 years have passed, the research regarding using aspirin to treat heart attacks is still from informal observation, i.e. reviewing the charts of people after a heart attack and seeing that people on aspirin generally lived longer. There is as yet no actual medical research study of placing some people on aspirin and using others as 'controls.' That is likely because the patent on aspirin expired decades ago and no drug company will fund an expensive test without a patent to control the market.
The first flag on this email is that it states an EMT (unnamed) suggested this treatment, but the email did not also include a confirmation from a named doctor or pharmacist, or cite another medical authority. Bayer (the aspirin company), in fact, received a warning letter from the FDA that such labeling and advertisement is illegal. (2). As the FDA warned Bayer, there are several situations in which aspirin should NOT be taken, even during a heart attack, and the consumer labeling would be too complex for a layperson to understand.
Even the American Heart Association has retreated to cautiously state that "research shows that getting an aspirin early in the treatment of a heart attack, along with other treatments EMTs and Emergency Department physicians provide, can significantly improve your chances of survival." (3, Emphasis added.)
Second, while the FDA acknowledges the idea of taking aspirin during the onset of a heart attack, the FDA does not discuss dosage, and in light of the Bayer warning, no authority likely would without a test that no one will perform. (4). Outside of the U.S., one or two of the 81-mg (a.k.a., child's aspirin) seems to be the suggested dose. (5). Bayer reported to the FDA that AspirinCardio, an aspirin-drug it markets OUTSIDE the U.S., states to take two of the 81-mg sizes in the event of a heart attack. (6). Bayer, however, did not state whether they made an actual study, or decided that recommending 2 pills would double the profit over recommending 1 pill.
Importantly, in the event of a heart attack, DO NOT take extra-strength size aspirin, and especially do not take the Bayer "crystal" aspirin. This formulation is dangerous because it contains 850 mg of aspirin (five times Bayer's suggested dose, which may cause stomach bleeding) plus caffeine, which raises blood pressure. (7).
The third concern is that if you are going to take aspirin during a heart attack, consider a chewable aspirin instead of swallowing a whole pill. The chewable version seems to work faster to reduce clotting than swallowing a whole pill. (8).
Lastly, challenge every email-based health advisory. This root of this "don't lie down" myth is well over a year old, yet EMTs and hospitals continue to place heart attack patients flat on a gurney or flat on a bed. (3). This fact alone is a certain signal that the whole email is to some degree false.
Also raising the caution flag is that this email is a revision of a March 2009 version that also lacks authoritative references. (1). Two other troubling aspects of this email are that early distributors that failed to substantiate the facts. One was a member of a group generally better known for name calling than fact checking. (9). Another source recommended Crystal Bayer for heart attacks under the title "Aspirin Crystal: Heart Attack’s New Dear Friend" from Bonsai International News and Reviews – of India. (10). Since when does heart attack have a "dear friend?"
(1) Barbara and David P. Mikkelson, Snopes.com, Bedside Companion, last updated: 1/12/2010, http://www.snopes.com/medical/drugs/aspirin.asp.
(2) Public Health Service, Food and Drug Administration, Warning Letter to Bayer HealthCare LLC, 10/27/2008, last updated: 07/08/2009, http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2008/ucm1048456.htm.
(3) Aspirin in Heart Attack and Stroke Prevention, American Heart Association, undated, http://www.americanheart.org/presenter.jhtml?identifier=4456.
(4) Dept. of Health and Human Services, Food and Drug Administration, Aspirin: Questions and Answers, last updated: 06/18/2009, http://www.fda.gov/Drugs/ResourcesForYou/Consumers/QuestionsAnswers/ucm071879.htm
(5) Robin Parks, MS, Aspirin for heart attack and unstable angina, last updated: May 14, 2007, http://health.yahoo.com/heart-medications/aspirin-for-heart-attack-and-unstable-angina/healthwise--tx4214.html, (citing Danchin N, Durand E (2006). Acute myocardial infarction, search date August 2004. Online version of BMJ Clinical Evidence. http://www.clinicalevidence.com.)
(6) Bayer, AspirinCardio, 11/26/03, Aspirin® in cardiovascular indications including primary prevention indications, http://www.fda.gov/ohrms/dockets/ac/03/briefing/4012B1_05_Appd%202-%20Cardiovascular%20Indications.pdf.
(7) Bayer Aspirin Pain Reliever Extra-Strength Quick Release Crystals, 20-Count Pouches (Pack of 2), http://www.amazon.com/exec/obidos/ASIN/B002GU79LK/, http://www.snopes.com/medical/drugs/aspirin.asp
(8) Harvard Health Publications, Aspirin for heart attack: Chew or swallow?, May 2005, http://www.health.harvard.edu/fhg/updates/update0505a.shtml.
(9) John Vescuso, NEW Aspirin - a reminder!, 2/27/2010, Valley Forge Patriots - Tea Party Conservatives, http://www.meetup.com/VFP-TeaParty09/messages/9324021.
(10) Bonsai International News and Reviews, Aspirin Crystal: Heart Attack’s New Dear Friend, 1/7/2010, http://www.newsandreviews.in/index.php/KnowNow/?title=aspirin-crystal-heart-attack-s-new-dear-.
Labels:
Aspirin,
Heart Attacks,
myth,
patent,
urban
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