How to Prepare for Your Meeting With A Virginia Car and Truck Accident Attorney

Tuesday, September 10th, 2024

Article co-written by Jared Tuck and Paralegal Kelly Hickey

You have been injured in a Virginia car or truck accident. You are probably in pain from your injuries and trying to manage your medical appointments. In addition to your injuries and treatment, you are likely facing increased financial pressure due to medical bills, lost wages, etc. You may be worried about the future. A friend or family member has told you that you should consult a Virginia car and truck accident attorney. So you call an attorney and set up an appointment to meet with him or her. But what’s next? What should you do after scheduling the appointment? What do you need to do to prepare for your initial meeting with a Virginia car and truck accident attorney?

Once your Virginia car and truck accident attorney takes over your case, he or she should do all of the heavy lifting for you and advise you of the legal process and the steps going forward, while you focus on recovering from your injuries and attending your appointments. However, it is critical that you provide your lawyer with any and all information that will help him or her prosecute your personal injury claims.

Here is an ideal list of what you should bring to your initial meeting with a personal injury lawyer (assuming you have access to this information):

1. Your driver’s license;

2. Your health insurance card(s);

1. 1. Medicare;
   2. Supplemental Medicare;
   3. Medicaid;
   4. Private Health Insurance (Anthem, Aetna, UnitedHealthcare, etc.); and/or
   5. Tricare;

3. A copy of your health insurance policy from your employer (usually the human resources department can get this for you);

4. Photos of the vehicles involved;

5. Photos of your injuries;

6. A list of all of your injuries;

7. Names and addresses of all of your medical providers (including hospitals, doctor’s offices, physical therapy providers, chiropractors, etc.) and pharmacies;

8. Any medical records and bills received from your medical providers;

9. Any collection notices received from your medical providers;

10. A copy of the “declarations page” of any and all auto insurance policies covering any and all vehicles that are primarily stored at your residence (your auto insurance agent can get this for you or sometimes it can be downloaded from your auto insurance company’s website or mobile app);

11. A copy of the Police Crash Report (accident report) or exchange of information form;

12. Contact information for anyone involved in the crash, the investigating police officer, and witnesses to the crash (names, addresses, and phone numbers);

13. Any diaries, notes, logs, etc., you have made regarding the facts surrounding your car or truck accident and your personal injuries;

14. Any correspondence with any insurance company regarding the accident;

15. Any text messages or other correspondence with others regarding the accident;

16. Any photos/videos you may have in your possession regarding the accident, your injuries, etc.;

17. If you have a dashcam in your vehicle, bring it with you to the meeting;

18. Any information concerning lost wages (employment records, pay stubs, W2s, tax returns, etc.);

19. Any statements you have made to the insurance company regarding the accident;

20. Written narrative of what you recall from the accident and how the effects are impacting you. (The sooner you write down what you remember, the fresher it will be.)

21. Any other documents you feel are related to the accident or the personal injuries you have suffered; and

22. A list of any questions you have for the personal injury attorneys in Virginia.

This is a long list. We do not expect you to provide all of the above information during the initial meeting. Car and truck accidents can be life-changing. Your injuries may prevent you from being able to prepare all of the above information before the initial meeting with your attorney. That’s ok. We are here to help guide you through the process, and we will help you obtain any and all documents and information necessary to successfully prosecute your case.

However, the more information you can provide to your attorney in the beginning, the faster your attorney and his or her team can get working for you. The legal process can be frustratingly slow and unpredictable. Some personal injury cases settle quickly. Other personal injury cases involve protracted litigation that can take years to reach resolution, especially if there is a trial or appeal.

Here at Gentry Locke, we have a team approach. In most cases, you will meet with personal injury lawyers in Virginia or two, a paralegal, and our investigator. Each person will play a critical role in your case. At the initial meeting, your personal injury attorney(s) will explain to you what you should expect from our firm to assist you with your personal injury case. He or she will answer any questions you may have regarding the process. The paralegal will take down all of the pertinent information relating to the crash, your injuries, your treatment, etc. This meeting usually lasts at least an hour, but it may take longer depending on the particular facts and circumstances of your case.

Please do not hesitate to contact one of our Virginia car or truck accident lawyers if you have any questions. We are here to help.

Virginia’s Interstates: Hotspots for Motor Vehicle & Tractor-Trailer Collisions

Wednesday, August 28th, 2024

Virginia’s interstates are hotspots for motor vehicle and tractor-trailer collisions. Far too often, these crashes result in catastrophic injury or wrongful death. Presumably, this can be blamed on the speed, congestion, and large number of commercial motor vehicles associated with interstates.

Many of our personal injury cases arise out of motor vehicle or tractor-trailer crashes on Virginia’s interstates. As shown below, there are many Interstates in Virginia: I-64, I-66, I-77, I-81, I-85, I-95, I-195, I-264, I-295, I-381, I-395, I-464, I-495, I-564, I-581, and I-664.

[1]

Interstate 81

The largest portion of our firm’s interstate cases come from Interstate 81. This could be because I-81 is the longest interstate located in Virginia, stretching a whopping 324.92 miles across the Commonwealth. [2] Interstate 81 passes by Bristol, Abingdon, Emory, Chilhowie, Marion, Rural Retreat, Wytheville, Pulaski, Dublin, Radford, Christiansburg/Blacksburg, Salem, Roanoke, Buchanan, Natural Bridge, Lexington, Staunton, Harrisonburg, New Market, Woodstock, Stephens City, and Winchester. “Within Virginia, I-81 connects 30 colleges and universities, 21 cities and towns, and 13 counties.” [3]

Interstate 81 is heavily trafficked by commercial motor vehicles and tractor-trailers because it is a major East Coast thoroughfare, spanning from Tennessee to New York for a total of 855.02 miles. [4] Interestingly, I-81 passes through six states, but approximately 38% of Interstate 81 is located in Virginia. [5] According to the Virginia Department of Transportation (VDOT), “[n]early 50% of the state’s value of goods are transported along the [I-81] corridor, which has the highest per capita truck volume in Virginia. [6] For example, approximately 20% of the vehicles passing by Wytheville on I-81 have trailers, while only approximately 6% of vehicles passing through Richmond on I-95 have trailers. [7]

Given I-81’s heavy tractor-trailer presence, the highway can be extremely dangerous. Legally, commercial motor vehicles may have a maximum gross vehicle weight of 80,000 pounds. [8] On the other hand, sedans, such as a Toyota Camry or Honda Accord, weigh approximately 3,300 pounds. [9] As you can imagine, commercial motor vehicles cause devastating damage and injuries when they impact a small vehicle. Below is a photograph showing the damage that resulted to one client’s vehicle when it was sandwiched between two tractor-trailers.

Interstate 64

Interstate 64 is an east-west highway, running from Missouri to Virginia and spanning six states. [10] The largest portion of I-64 is in Virginia, where the highway spans 297.62 miles. [11]  I-64 passes by many Virginia towns and cities, including Covington, Clifton Forge, Lexington, Staunton, Waynesboro, Afton, Charlottesville, Gum Spring, Richmond, Williamsburg, Newport News, Hampton, Norfolk, Chesapeake, and Virginia Beach.

Between Hampton and Norfolk lies I-64’s Hampton Roads Bridge-Tunnel (HRBT), which is a 3.5-mile-long underwater tunnel. [12] The HRBT is traveled by nearly three million vehicles each month. [13] Presumably, due to the HRBT and tourism to the Norfolk/Virginia Beach area, the eastern portion of I-64 is often congested, making it prone to motor vehicle collisions.

Interstate 95

Interstate 95 is a north-south highway along the East Coast, stretching from Maine to Florida and running through 15 states and the District of Columbia. [14]  I-95 is another dangerous Virginia highway, which spans 178.73 miles across Virginia and passes by Springfield, Woodbridge, Dale City, Dumfries, Stafford, Fredericksburg, Ruther Glen, Ashland, Richmond, Petersburg, Stony Creek, Emporia, and Skippers. [15]

I-95 in Stafford, Virginia is home to Virginia’s “worst” motor vehicle collision ever, which was a horrific 117-vehicle pileup that killed one person and injured 31 others. [16] I-95 is likely so dangerous because it is heavily trafficked. For example, according to VDOT’s 2022 traffic volume data, the stretch of I-95 passing through Springfield has an average daily traffic volume of 241,000 vehicles; the stretch passing through Woodbridge has an average daily traffic volume of 202,000 vehicles; and the stretch passing by Richmond has an average daily traffic volume of 151,000 vehicles. [17] With the amount of traffic on I-95, it is unsurprising that I-95 is a hotspot for motor vehicle collisions.

Interstate 77

Interstate 77 is a north-south highway running from Ohio to South Carolina and spanning five states. [18] I-77 passes by several towns in Southwest Virginia, including Rocky Gap, Hicksville, Bastian, Bland, Wytheville, Fort Chiswell, Hillsville, and Fancy Gap. Although only 69.4 miles of I-77 is located in Virginia, [19] the roadway is a hotspot for motor vehicle and tractor-trailer collisions.

I-77 is vulnerable to motor vehicle collisions because of its curves, slope, and fog, especially on the southern portion of the roadway near Virginia’s border with North Carolina. On Easter Sunday in 2013, there was a 95-car pileup in the Fancy Gap Mountain area of I-77, which is a location known for dense fog. [20] Three people died and more than 20 were hospitalized from the crash. [21] The crash is known as one of the worst in Virginia’s history.

Interstate 77, like Interstate 81, is heavily frequented by commercial motor vehicles and tractor-trailers. For example, approximately 30% of the vehicles passing by Fancy Gap on I-77 have trailers, and approximately 23% of the vehicles passing by Bland on I-77 have trailers. [22]

Virginia Interstate Crash Attorneys

Injured in an interstate crash? Our Virginia motor vehicle collision attorneys have recovered millions of dollars in settlements and verdicts for clients injured on Virginia’s interstates. Contact us today for a free consultation. We pride ourselves on responsiveness. We have a “Go Team” of personal injury lawyers, paralegals, an investigator, and in-house nurses, who are all ready to act immediately to work for you to maximize your potential recovery.

[1] https://en.wikipedia.org/wiki/List_of_Interstate_Highways_in_Virginia#/media/File:Map_of_Interstate_Highways_in_Virginia.svg.
[2] FHWA Route Log and Finder List, U.S. Dep’t Transp. (Jan. 27, 2022), https://www.fhwa.dot.gov/planning/national_highway_system/interstate_highway_system/routefinder/table01.cfm.
[3] What is the I-81 Corridor Improvement Program?, VDOT (2024), https://improve81.vdot.virginia.gov/.
[4] See FHWA Route Log and Finder List, supra note 2.
[5] See id.
[6] What is the I-81 Corridor Improvement Program?, supra note 3.
[7] Virginia Traffic Volume, VDOT (2022), https://vdot.maps.arcgis.com/apps/webappviewer/index.html?id=35e4c06de0f84a9c9f3fe18e67cd2c92.
[8] 28 CFR § 658.17.
[9] See 2024 Camry Full Specs, Toyota (2024), https://www.toyota.com/camry/2024/features/mpg_other_price/2532/2559/2546; 2024 Accord Sedan Features & Specs, Honda (2024), https://automobiles.honda.com/accord-sedan/specs-features-trim-comparison.
[10] See FHWA Route Log and Finder List, supra note 2.
[11] See id.
[12] See Hampton Roads Bridges and Tunnels, VDOT (2024), https://www.vdot.virginia.gov/about/our-system/bridges-tunnels/hr-bridges-tunnels/.
[13] Id.
[14] See FHWA Route Log and Finder List, supra note 2.
[15] See id.
[16] Melissa A. Winn, Handling the Worst Crash Ever in Virginia, U.S. Dep’t Transp. (May/June 2001), https://highways.dot.gov/public-roads/mayjune-2001/handling-worst-crash-ever-virginia.
[17] See Virginia Traffic Volume, supra note 7.
[18] See FHWA Route Log and Finder List, supra note 2.
[19] See id.
[20] Steven Nelson, 3 Dead After 95-Car Pileup in Virginia (April 1, 2013), https://www.usnews.com/news/newsgram/articles/2013/04/01/three-dead-after-95-car-pileup-in-virginia.
[21] Id.
[22] See Virginia Traffic Volume, supra note 7.

Breaking: U.S. District Court for the Northern District of Texas “Sets Aside” the FTC’s Non-Compete Ban—Barring Enforcement of the Final Rule Nationwide

Thursday, August 22nd, 2024

On Tuesday, August 20, 2024, U.S. District Court Judge Ada E. Brown ruled that the FTC’s Final Rule banning non-compete agreements (the “Rule”), which was set to take effect on September 4, 2024, was “promulgated . . . in excess of [the FTC’s] statutory authority.”  Ryan LLC, v. Federal Trade Commission, 3:24-cv-00986-E (N.D. Tex. 2024). As a result, the Court held that, consistent with Administrative Procedure Act (“APA”) § 706(2)(A)-(C), the Rule would be “set aside.” Critically, the Court concluded, based on “a couple of recent cases,” that “setting aside agency action under § 706 has ‘nationwide effect,’ is ‘not party restricted,’ and ‘affects persons in all judicial districts equally.’” The full text of the opinion is here. The Court’s ruling comes on the Plaintiff’s Motion for Summary Judgment. Previously, the Court declined to grant a nationwide injunction. While there remains some uncertainty, with the Court’s August 20 ruling, businesses in Virginia should be less concerned about the Rule being enforced in Virginia—at least until an appellate court, or a court in the 4^th Circuit, says otherwise.

What You Need to Know About Motorcycle Accidents in Virginia

Tuesday, August 20th, 2024

Article co-written by Jared Tuck and Summer Associate Peyton Edwards

I. The Dangers of Motorcycle Accidents

Motorcycle crashes rarely have a mild impact. This is especially true in motorcycle collisions that involve tractor-trailers. The average motorcycle weighs between 300 and 500 pounds. Meanwhile, federal regulations generally allow a tractor-trailer to weigh up to 80,000 pounds. That is 160 times heavier than a motorcycle. While motorcycle accidents only make up 1.7 percent of all crashes in Virginia, they are responsible for 13.8 percent of all fatalities. Crashes involving passenger vehicles make up 96.8 percent of all crashes, yet only account for 65.9 percent of fatalities. Unfortunately, if a person is involved in a motorcycle crash, then there is a much higher probability of the crash leading to a wrongful death case. Even in motorcycle crashes that do not result in a fatality, approximately 1 in 3 motorcyclists involved in a crash are seriously injured. For these reasons, motorcycle crashes should not be taken lightly.

Further, the routes you would typically think to be the most treacherous are not where a majority of motorcycle accidents happen. Most often, people think of interstates as being the most dangerous place for motorcyclists to drive. While the large number of tractor-trailers on the interstate can lead to more deadly outcomes, only 11.2% of Virginia motorcycle accidents happen on interstates. Many of those motorcycle collisions occur on Interstate 95 near Alexandria.

II. Motorcycle Safety

Given the serious nature of these types of crashes, safety should be the number one priority of those who are riding motorcycles.

There are several important Virginia motorcycle safety rules that all motorcyclists should be aware of:

1. In Virginia, both drivers and passengers riding motorcycles are required to wear a protective helmet as mandated by Virginia Code § 46.2-910;
2. Section 46.2-910 also requires motorcyclists to: (1) wear a face shield, (2) wear safety glasses or goggles, or (3) have their motorcycle equipped with safety glass or a windshield during operation;
3. Virginia Code § 46.2-909 prohibits motorcyclists from having a passenger, unless the motorcycle is designed to carry the passenger; and
4. Section 46.2-909 mandates that individuals riding on motorcycles shall be seated and may only stand on both foot pegs if it is necessary for safety.

III.  Determining Fault

Defense attorneys and insurance companies often try to blame motorcyclists for their injuries resulting from a crash. They may argue that: (1) the motorcyclist’s clothing made it difficult to see the motorcyclist, (2) the motorcyclist was speeding, (3) the motorcyclist was not properly licensed, (4) the motorcyclist was not wearing the appropriate protective gear, (5) the motorcyclist was hovering in the blind spot, etc. The gist of these arguments is that the motorcyclist was contributorily negligent. Contributory negligence is a term used to describe the situation where a plaintiff fails to exercise reasonable care for his or her own safety. In Virginia, if the defendant can prove that the plaintiff was contributorily negligent, then the plaintiff cannot recover.

However, just because you did not have a license or were wearing dark colored gear, does not mean that you do not have a case. There is an important requirement for contributory negligence to apply—causation. The alleged negligence must actually cause the crash and/or your injuries. For example, if you were driving without a license, but you were driving the motorcycle in a safe manner, just as a properly licensed driver would, then the fact that you did not have a motorcycle license did not actually cause the crash. You could still possibly recover.

IV. Time Limits on Bringing a Claim

It is important to be vigilant after a motorcycle accident. The statute of limitations in Virginia generally provides that a plaintiff cannot bring a claim after two years from the date of the accident. There are certain circumstances in which the statute of limitations tolls. This means that the two-year clock temporarily stops running. One of the times the statute tolls is when the plaintiff is considered an “infant,” which under Virginia law, is a person who is less than 18 years old. If the plaintiff is an infant, then the statute generally does not begin to run until they have reached age 18. Therefore, an infant involved in a motorcycle crash generally can sue for their injuries up until their 20th birthday. However, after the two-year period has run, the claim can no longer be brought. This means it is imperative for a person injured in a motorcycle accident to retain counsel as quickly as possible. The earlier counsel is retained, the more we can help to preserve important evidence, investigate the accident, and provide legal advice as to the best course of action going forward.

V. Virginia Motorcycle Accident Attorneys

Injured in a motorcycle crash? Our Virginia motorcycle accident attorneys have recovered millions of dollars in settlements and verdicts for clients injured in motorcycle crashes. Contact us today for a free consultation. We pride ourselves on responsiveness. We have a “Go Team” of personal injury lawyers, paralegals, an investigator, and in-house nurses, who are all ready to act immediately to work for you to maximize your potential recovery.

Virginia Boat Crashes: Stay Safe on the Water

Wednesday, August 14th, 2024

Article co-written by Jared Tuck and Summer Associate Emily Brooks

Whether spending time at Smith Mountain Lake, Claytor Lake, South Holston Lake, Lake Anna, Buggs Island Lake, Lake Gaston, or another one of Virginia’s waterways, summer is the perfect time to enjoy a day on the lake with family and friends. While enjoying time on the water can be fun and relaxing, the increased number of boats on the water during the summer means a greater chance that you or a family member could be injured in a boating accident. In 2023, 3,844 boating incidents were reported, with 564 recorded fatalities.[1] This number does not even begin to compare to the 2,126 reported non-fatal injuries that result from these accidents.[2] As these statistics show, boating accidents are extremely dangerous. It is important you take safety precautions and be prepared if an accident does occur.

Given the tragic and serious nature of boating crashes, safety should be the number one priority when operating a boating vessel. Most boating accidents involve collisions during broad daylight with other vessels or objects in the water. Unlike a motor vehicle or motorcycle accident where individuals are presumably protected by safety equipment such as helmets and seatbelts, there is no safety equipment in place on boating vessels that protect passengers from the immediate impact of a collision.

While alcohol does play a significant role in many boating crashes, the top contributing factors of an accident are operator inattention, improper lookout, and operator inexperience. It’s important to navigate waters at a safe speed, be aware of your surroundings at all times, and keep a lookout for other boats, jet skis, canoes, and partially-submerged objects. Additionally, it is imperative that your boat is stocked with enough lifejackets for every person on board. Where the cause of death was known for the 564 reported fatalities in 2023, 75% of boating accident victims drowned. 87% of these individuals were not wearing a life jacket.[3] While boating can be an extremely fun and family-friendly activity, all individuals involved should be aware of the heightened dangers that come with operating and being on a boat. The more precautions you can take ahead of time will decrease the chance that you will end up in an accident.

To avoid a catastrophic accident and potentially decrease the likelihood of injury, you should ensure everyone on board your boating vessel is aware of and complying with the basic boating laws. These are the basic Virginia boating safety rules you should know about.

(1)   Ensure the person driving the boat has met the requirements for boating system education and possesses a valid boating license.[4] This is often achieved by taking a proper boating course and passing a comprehensive boating knowledge test.

(2)   Refrain from operating a boat while under the influence of alcohol or other intoxicating substances (Virginia Code § 29.1-738(B)). If an intoxicated boat operator is responsible for causing a crash and the evidence shows that the operator’s conduct was so willful and wanton as to show a conscious disregard for the rights of others, then such circumstances may warrant a finding of punitive damages to punish and deter the boat operator’s egregious conduct.

(3)   Make sure the vessel’s lights are properly working between sunset and sunrise. Without proper lights, other boating vessels will have difficulty seeing your boat. Having properly functioning navigation lights helps ensure that your vessel remains sufficiently visible at all times.

(4)   In the event an accident occurs, stop and render assistance if you can without putting yourself in harm’s way. Give your information to the other parties involved and report the incident promptly. Virginia law requires the operator of vessels involved in a collision to stop and render assistance to a level possible without serious danger to the operator’s own vessel and passengers.[5]

(5)   When towing another person on water skis, a surfboard, or a similar tubing device, ensure you have an individual in addition to the boat operator on board to observe the individuals being towed by the boat.[6]

Injured in a boating crash? Our Virginia boating accident attorneys have recovered millions of dollars for clients injured in boating crashes. Contact us today for a free consultation. Our “Go Team” of personal injury lawyers, paralegals, investigators, and in-house nurses are responsive and ready to act immediately for you to maximize your potential recovery.

[1] Department of Homeland Security, Coast Guard releases 2023 recreational boating statistics, United States Coast Guard News (May 28, 2024) https://www.news.uscg.mil/Press-Releases/Article/3788966/coast-guard-releases-2023-recreational-boating-statistics/.
[2] Id.
[3] 2023 Executive Summary, United States Coast Guard (May 2024) https://www.uscgboating.org/library/accident-statistics/Recreational-Boating-Statistics-2023.pdf.
[4] Va. Code § 29.1-735.29(A).
[5] Va. Code § 29.1-739; Va. Code § 29.1-740.
[6] Va. Code § 29.1-742. 

Federal Lawsuits Challenge, but Do Not Halt, FTC Rule Banning Non-Competes; What Employers Can Do to Protect Information and Talent in the Absence of Non-Competes

Tuesday, August 6th, 2024

Article co-written by Ryan Starks, David Paxton, and Summer Associate Haley Leipzig

On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule (the “Rule”) that will enact a “comprehensive ban on non-competes with all workers” as of September 4, 2024.[1]  The Rule aims to prohibit employers from using or enforcing non-compete agreements with employees or independent contractors when their employment ends, in order to address what the FTC deems “unfair methods of restricting competition.”[2]  The full text of the Rule can be accessed here.[3]. If the FTC rule becomes effective, it will supersede and supplant Virginia law that has recognized that reasonably drawn non-compete restrictions are enforceable, with the exception of “low wage” employees.[4]

The implications of the Rule are significant.  Indeed, any existing non-compete agreement entered into before September 4, 2024 will no longer be enforceable, and employers will not be permitted to enter into new non-compete clauses with their workers after September 4, 2024.[5]  Equally important, once the Rule become effective, employers have a duty to send written notice to each worker who is subject to a non-compete agreement that the provision is not enforceable, and this includes severance agreements.  One exception (there are few) is for pre-existing noncompete agreements with senior executives, provided that their annual compensation is more than $151,164.  According to the FTC, these senior executives are “less likely to be subject to the kind of acute, ongoing harms currently being suffered by other workers subject to existing non-competes.”[6] For these senior executives, existing non-competes can remain enforceable after the effective date, but companies will be barred from requiring or entering into non-competes with senior executives after September 4, 2024. [7]

Predictably, this proposed ban has caused considerable upheaval in the business community, leading to early legal challenges against the Rule in federal courts in both Texas and Pennsylvania. Among the legal challenges made is the assertion that the FTC does not have the authority to adopt such a nationwide ban, and that the Rule’s attempt to impose this ban is unconstitutional.

In Ryan, LLC v. Federal Trade Commission, Ryan, LLC filed a lawsuit in Texas federal court challenging the FTC’s authority to issue the Rule.  Ryan, an international tax firm, and four plaintiff-intervenors, including the U.S. Chamber of Commerce, sought a nationwide preliminary injunction to halt the enforcement of the Rule while the issues are litigated on the merits.  The court issued a stay of enforcement until it could rule on the motion for a preliminary injunction, stating that “the FTC lacks substantive rulemaking authority with respect to unfair methods of competition … and thus plaintiffs are likely to succeed on the merits.”[8]  However, the court declined to grant a nationwide injunction, limiting the stay to Ryan, LLC and the other plaintiffs named in the case (but not their members).  The Texas court stated that it will issue its ruling on the preliminary injunction by August 30, 2024.  In its ruling later this month, the Texas federal court is expected to determine whether the FTC ban is enforceable, and whether broader injunctive relief is warranted.

A similar challenge to the FTC’s authority and the enforceability of the Rule was filed by a tree service company in the Eastern District of Pennsylvania.[9]  In ATS Tree Services, LLC v Federal Trade Commission, the plaintiff asserted that the FTC ban on non-competes is “unconstitutional and contrary to law”[10] and likewise requested a nationwide injunction that would bar enforcement of the Rule and its ban on non-competes.  On July 23, 2024, the court denied plaintiff’s request for an injunction, reasoning that the risk of any harm caused by this ban was too speculative, and that the FTC did, in fact, have the authority to promulgate the Rule.[11]

Because of the contrasting outcomes in these two cases – and these are just the first two cases to render decisions on challenges to the Rule –  and the existing  patchwork of state laws governing and often limiting the use of noncompete agreements, companies are left without full-proof answers to questions about whether to continue to use of non-compete agreements going forward and what actions to take as of September 4, 2024.

By understanding the implications of the FTC’s Rule and implementing a combination of these strategies, you can better identify the major risks to your business in the absence of an ability to rely on non-competes.  During this next month, businesses should consider taking some or all of the following steps to ensure the protection of their trade secrets and other confidential information:

• Non-Disclosure Agreements (“NDAs”): Bind employees with NDAs that clearly protect trade secrets and restricts the disclosure and use of proprietary and confidential information, without making the NDA so broad that it could be considered a non-compete restriction, or that it could construed to prohibit the disclosure of unlawful conduct.
• Non-Solicitation Agreements: Require senior executives and key workers to sign carefully tailored non-solicitation agreements to prevent them from soliciting either the clients they worked with during employment or other company employees for a reasonable period of time after separation from employment.
• Garden Leave: Consider the use of this type of provision in severance agreements with executives and key employees to keep them on the payroll for a restricted period and thereby prevent unwanted competition for a period of time.
• Legal Review: Work with legal counsel to conduct a privileged review of existing agreements to assess potential exposure prior to September 4, 2024.
• Intellectual Property (“IP”) Agreements: Ensure employees have executed Work for Hire Agreements and an agreement to assign any IP they develop to the business and acknowledge the company’s ownership via an IP agreement.
• Tailored Company Policies: Develop company policies and agreements that are specifically tailored to your business needs, avoiding reliance on generic boilerplate language.
• Cloud Services and Data Security: Monitor the Cloud services that employees use to store company data, such as Dropbox, iCloud, or Google Drive. Implement Data Loss Prevention tools that can detect the type of data within files and enforce predefined rules regarding what can and cannot be transferred to a Cloud service.
• Customer Relationship Management Systems: Review the systems used to manage customer relationships and sales. Ensure that access controls and data management settings are tailored to your business needs, specifying who can access what data and for how long.
• Positive Work Environment: Foster a positive work environment that encourages loyalty and reduces the desire for employees to leave and compete. Implementing incentive programs such as profit-sharing, stock options, and bonuses can encourage long-term commitment and reduce turnover.

Absent an unexpected change, it does not appear that a nationwide ban on the FTC’s Rule will be imposed.   Each business subject to FTC jurisdiction will need to determine what steps it will take in light of the legal challenges to the FTC’s authority to ban the use of non-compete agreements as well as the exposure to possible enforcement action by the FTC if required notices are not sent by September 4, or banned agreements continue to be required of workers or steps are taken to seek enforcement of a banned agreement.

For legal assistance with navigating these changes and implementing protective measures, reach out to a member of Gentry Locke’s Employment Team who can provide personalized guidance and support to safeguard your business.  We can also review any non-compete provisions that your business currently has in place to ensure that they are enforceable under Virginia law.

[1] FTC Non-Compete Clause Rule, 16 C.F.R. § 910 (2024).
[2] Id.
[3] There are limits to FTC’s ban. While the Rule defines non-competes broadly, it does not apply to restrictions that prohibit the solicitation of clients, and the disclosure and use of confidential information/trade secrets. The Rule does not to the following organizations because the FTC has limited jurisdiction: (i) non-profit organizations, (ii) banks, savings and loan institutions, and federal credit unions, and (iii) common carriers, air carriers, and foreign air carriers. Additionally, the Rule, by definition, does not apply to non-competes entered into in connection with a bona fide sale of a business, or to enforcement actions where the cause of action accrued before September 4, 2024.
[4] Assurance Data, Inc. v. Malyevac , 286 Va. 137, 144 (2013); Update Inc, v Samilow, 311 F. Supp.3d 784(ED Va 2018)(granting preliminary injunction on a one-year, 50 mile non-compete agreement).  Since July 1, 2020, Virginia has prohibited non-compete agreements with those workers are considered to be “low wage”  Va. Code §40.1-27.3.
[5] Id. The Rule makes it clear that it applies to agreements with independent contractors as well as employees, and also applies to severance agreements.  In contrast, commentary to the Rule makes it clear that “garden leave” agreements are permissible.  Under a garden leave agreement, the worker remains on the payroll for the entire period of the restriction but is required to do little or no actual work.
[6] Id.
[7] 16 C.F.R.§910.2(a)(2).  There are also unresolved issues involving the ability to use non-compete provisions and/or forfeiture/claw back provisions in new deferred compensation agreements which are or maybe governed by ERISA.
[8] Ryan LLC v. FTC, Civil Action No. 3:24-CV-00986-E, 2024 U.S. Dist. LEXIS 117418 (N.D. Tex. July 3, 2024).
[9] ATS Tree Services, LLC v. FTC, 2:24-cv-01743, (E.D. Pa. 2024)
[10] Id.
[11] Id.

Virginia’s Largest Jury Verdict Reversed

Monday, August 5th, 2024

The Court of Appeals of Virginia overturned a $2.03 billion trade-secrets case judgment, the largest jury verdict in Virginia history. In a landmark ruling that defines contours of the Virginia Uniform Trade Secrets Act (“VUTSA”), the Court held that a “series of errors” required reversal. The unanimous decision issued on July 30, 2024, awarded Pegasystems Inc. (“Pega”), a Massachusetts-based software company, a new trial on all VUTSA issues—both liability and damages. Monica T. Monday and Michael J. Finney led the appellate team from Gentry Locke that assisted in securing this result.

The case was brought by Appian Corporation, a competitor in the business process management software industry. After a seven-week trial in Fairfax County Circuit Court, the jury rendered the unprecedented verdict. The Court of Appeals held that this verdict could not stand. It found that the trial court improperly instructed the jury that Appian’s only causation burden was to show Pega’s total sales over an eight-year period. That flawed instruction, according to the Court, “relieved Appian of its proper burden to prove causation between the alleged misappropriation and any damages.” And that error was compounded when the trial court prevented Pega from presenting evidence that many of its total sales were in areas in which the parties did not compete.

In addition to these prejudicial errors concerning causation and damages, the Court also found that Pega should have been permitted to demonstrate its software to the jury and to introduce the number of people with access to Appian’s platform. These were critical facts to liability issues—namely Pega’s defenses that it did not copy Appian’s software and that Appian did not take reasonable measures to protect its alleged trade secrets. These multiple errors deprived Pega of a fair trial.

Monday and Finney served as embedded appellate counsel for Pega at trial, assisting the trial team from Choate Hall and Offit Kurman with evidentiary issues, preservation-of-error, jury instructions, critical legal issues, and post-trial motions. On appeal before the Court of Appeals of Virginia, Gentry Locke worked alongside an outstanding appellate team from Orrick, including Josh Rosenkranz, Eric Shumsky, and Chris Cariello. Gentry Locke’s appellate team also included partners David R. Berry and Noah P. Sullivan.

The case is Pegasystems Inc. v. Appian Corporation, Record No. 1399-22-4 (Va. Ct. App., July 30, 2024).

Collision Confusion: Navigating Brain Injuries from Car Crashes

Monday, August 5th, 2024

If you’ve been in a car accident and you have no visible injuries, you may still be at serious risk of the most insidious injury without knowing it until it’s too late – a traumatic brain injury.

TBIs Are Not Always Obvious

Traumatic brain injuries, often referred to as TBIs, can sometimes be immediate. However, they are oftentimes delayed for hours, days, or longer, making them hard to recognize or attribute to any particular occurrence. People tend to assume for a brain injury to occur, you have to hit your head in some way. This is not always the case.

Unlike an open head injury when an object gets lodged into your brain or your skull gets fractured, a TBI is a closed head injury when the brain hits the inside of your skull with such force that it becomes damaged. The brain can become bruised or bleed, or the nerve fibers of your brain can tear. In turn, the brain swells and blood flow to that area can get dangerously reduced.

Just like TBIs, automobile collisions occur in a variety of ways – different speeds, different points of contact, and differently-sized vehicles. Under the right set of circumstances, the sheer force of an accident can cause a person’s brain to shift with such force that the impact of the brain coming into contact with the skull is enough trauma to cause a TBI.

Traumatic brain injuries can present in many ways, ranging from a slight headache and fatigue, to loss of consciousness and dizziness. The range of signs and symptoms someone exhibits depends on the severity and location of the injury; plus, every victim is unique. Depending on the extent of the injury, you may require immediate attention, short-term care, or even long-term care. However, it is very important to seek medical attention following any car crash so that any potential brain injuries can be identified and treated early on.

TBIs from Car Crashes are More Common than You Might Think

According to the Virginia Department of Health, about 33% of all injury-related deaths are a result of TBIs in Virginia.[1] Between 2010 and 2014, car accidents are the second leading cause of TBI-related deaths and the second leading cause of TBI-related hospitalizations, only surpassed by falls. This demonstrates how common TBIs are after a car wreck and, more importantly, why it’s imperative that you seek medical attention right away if you’ve been the victim of a car crash with any involvement of your head, neck, or skull.

For additional recommendations for what to do after a car crash, see What to Do – During and After – an Auto Accident in Virginia.

What Gentry Locke Can Do for Car Crash Victims Suffering with a TBI

Our team of personal injury attorneys has demonstrated excellent care and service to those who have suffered a traumatic brain injury and other types of injuries resulting from someone else’s negligence.

First, if called early enough, our team can try arriving on the scene to document everything related to the car crash. As mentioned above, many factors go into the nature and extent of a possible TBI. By documenting everything, Gentry Locke can potentially help determine what exactly happened to cause an injury to the brain and hopefully relate it back to the driver at fault.

Next, we will work with you throughout your care to bring justice. No matter if criminal charges were brought or if a ticket was issued, there is still potential liability imposed on the other driver. Medical care and treatment are expensive, and you should not have to worry about spending your life savings should you require extensive treatment and/or long-term care. Gentry Locke’s personal injury attorneys will work to ensure you receive fair and just compensation for medical expenses, pain and suffering, and other related costs.

In sum, if you have been in a car wreck and you do not immediately exhibit signs and symptoms of a brain injury, that does not necessarily mean you do not have one. Getting properly evaluated by a medical professional as soon as possible is best practice. However, not everyone has the time, convenience, or knowledge to get immediately checked out. That is OK. If you begin showing signs and symptoms of a brain injury following a car crash at any point, it’s still recommended to visit a healthcare professional to get checked out.

Whether you require short-term or long-term treatment, your biggest worry should not be how to foot the bill. Let us worry about getting you fair and just compensation while you recover.

For more information on traumatic brain injuries, non-traumatic brain injuries, and what Gentry Locke’s team of Virginia personal injury attorneys can do to assist if you or a loved one have been the victim of a car crash, please visit: Traumatic Brain Injury Attorneys.

[1] TBI_DataBrief_-January2017.pdf (virginia.gov)

Reviewing Copyright & Generative AI: The Good, the Bad, and the Unanswered

Monday, July 22nd, 2024

The term “artificial intelligence” is no longer confined to the pages of science fiction or the runtime of Blade Runner. But don’t let that fool you. AI has been a part of our lives longer than you may realize. From email automations to voice command search tools like Alexa or Siri, AI has become a prevalent and useful facet of technology. Over the past five years however, the emergence of generative AI models like ChatGPT, Midjourney, and DALLE has begged new ethical and legal questions, and the intellectual property considerations of both AI programs and their outputs are reaching a boiling point.

Copyright claims related to AI are complex, and the law has not yet caught up to these advancements. Attorneys, legislators, and scholars alike are already contemplating the privacy, intellectual property, free speech, equal employment, and national security implications of artificial intelligence. Among these considerations, copyright law has been a major point of contention.

What is Generative AI?

Generally speaking, artificial intelligence is software, firmware, and/or hardware that is trained to solve complex problems or complete tasks that require the instrument to mimic human thought or action. Make no mistake, AI cannot think, nor is it sentient. The philosophical implications of this premise are encapsulated in the currently unrealized idea of Artificial General Intelligence (AGI), but no truly intelligent autonomy exists in today’s models.

In practice, AI cannot operate independently or of its own mind (it doesn’t have one). It is not a stochastic process. AI cannot operate randomly because it is bound to the instructions, guardrails, and training parameters of its developer. Further, “artificial intelligence” is a term used to encapsulate a vast blanket of probabilistic models ranging from robotics to voice assistant products (Siri and Alexa), website helpdesk chatbots, and reactive machine learning models. Here, we’ll focus on machine learning models like Midjourney, ChatGPT, GPT-4 (OpenAI), DALLE-2 (OpenAI), and Bard (Google).

There are two primary categories of commonly used, public-facing “Generative AI.” First, there are large language models (LLMs). These models, like Bard or ChatGPT, are supervised or semi-supervised chatbots that generate predictive, textual responses to prompts from a user. The second category includes large visual/vision models (LVMs), which operate similarly to LLMs but train on and generate image outputs instead (see Midjourney and DALLE-2). These models are trained on vast data sets and use prompts to generate responses through predictions based on past data ingestion. Many are semi-supervised, meaning the AI is initially tuned on a pre-defined data set but then continues to train itself based on user prompts and reactions to develop more accurate generation.

Functionally, the user-facing process looks like this: a user inputs prompt [X value] and the model generates [Y output] based on analytic weight and similarity of the prompt to previously ingested data. Here is an example from ChatGPT:

User Prompt: Explain briefly how generative, machine-learning, text-based AI models work as though you were explaining it to a fifth grader.

ChatGPT 3.5: Sure! Imagine a computer that loves to read books. It reads so many books and learns how words and sentences work. Then, when you ask it a question, it uses what it learned to create new sentences and give you an answer. It’s like having a really smart friend who learns from books and can talk to you!

The Legal Landscape of Copyright & AI

Copyright applies to artificial intelligence in two categories: ingestion and output. Ingestion refers to the process of tuning, where the developer uses pre-defined data sets to train the AI so that the model can accurately react to prompts and generate outcomes based on similarities to its training data. Outputs refer to the actual generations of the model. In LLMs, this would be the text-based response to a user prompt. For LVMs, it is the image(s) generated. Copyright protects original works of authorship from unauthorized reproduction or display by those who are not the copyright owner.[1] These rights vest in the author the moment the work is created, though a copyright owner obtains valuable additional protections by filing a registration with the U.S. Copyright Office. To best examine the application of copyright law to AI generally, the legal landscape can be viewed in light of three parties with potential copyright interests in AI-related works.

Parties With Potential Copyright Interests

AI Developers

AI developers may have several copyright interests related to their models. First and perhaps most settled, developers may have copyright in the software of the AI model itself. While it is established that developers can obtain copyright protection over computer code, copyright’s merger and useful article doctrines complicate matters when it comes to protecting utilitarian works like software. However, licensing plays a role as well, and a developer’s ability to claim copyright over his model can be frustrated if he used an open-source software as the base for the program. Open-source code is a software package offered freely to the public under a general use license by its developer to incentivize innovation. While these licenses allow for use, it does not immediately mean the developer has relinquished his copyright. In fact, the opposite is true. The existence of a license implies the assertion of an otherwise protected right, though many open-source licenses dictate that platforms developed using the open-source code are the exclusive IP of the platform’s developer. While enforcement is unlikely unless the developer uses open-source software in an unethical manner, AI developers should be wary of their rights to the AI models they develop.

Further, AI developers have already attempted to claim copyright over the outputs generated by their AI models. In 2023, Stephen Thaler attempted to register an image (titled “A Recent Entrance to Paradise”). The image was created using Thaler’s “Creativity Machine,” a generative AI model, and the Copyright Office refused to register the image. In Thaler v. Perlmutter, the U.S. District Court for the District of Columbia agreed with the U.S.C.O., explaining that copyright authors must be human.[2] The case is currently pending before the U.S. Court of Appeals for the D.C. Circuit.[3] Some have taken this to mean that AI-generated works are not the product of human authorship. This is not the case.  The decision noted that Thaler, in his copyright application, listed the AI as the author and himself as the owner of the copyright through the work-for-hire doctrine. Thaler claimed that, because he was the creator of the AI and prompt, he was essentially the AI’s “employer” and entitled to works that he argued should otherwise belong to the model itself As such, copyright in AI-generated outputs remains an unsettled issue. Nonetheless, in cases where the developer is not the prompter, the developer likely does not exert sufficient control over the creative process to claim the work as his own.

Authors With Pre-Existing Works

The second interested party consists of authors of pre-existing works that are used to train the AI models. This raises an issue as to whether a developer’s training of an AI on data sets (which often include millions of unfiltered data points) constitutes an unauthorized reproduction of copyrighted works contained therein. Since 2022, nationwide copyright litigation has erupted, with various authors suing AI developers for copyright infringement during the model training process.[4] Late in 2023, a federal court in the Southern District of New York became the battleground for a set of juggernaut AI-copyright cases. Filed on December 27, 2023, The New York Times Co. v. Microsoft Corp., et al. embodies the essence of the conflict and raises allegations that generative AI models facilitate mass copyright infringement– in that case, the mass reproduction of the Times’ journalism, among other data, in training OpenAI’s GPT models.[5] Daily News, LP, et al. v. Microsoft Corp., et al., filed in April 2024 in the same New York district court, is nearly identical.[6] In June 2024, Microsoft and the other OpenAI defendants filed a motion to consolidate both cases into a single, eighteen party dispute. Both cases ask more questions than are likely to be answered. However, deciding whether the use of copyrighted works to train AI models constitutes infringement, fair use, or warrants some compulsory license structure is the threshold for applying copyright law to increasingly autonomous technologies.

That is not to say that AI developers are doomed. Many argue that training AI models constitutes a fair use of copyrighted works, in part because the use is not one that usurps the copyright owner’s intended market. Whether or not AI training falls under copyright’s fair use protections will depend on how courts square the scope of “transformative” uses in relation to two Supreme Court decisions in Google LLC v. Oracle Am., Inc. (2021) and Andy Warhol Found. for the Visual Arts v. Goldsmith (2023).[7] In Google, the use of Oracle’s API software packages by Google to develop the Android platform was considered a transformative use, but, in Warhol, the use of Goldsmith’s photograph of Prince was not. Both involve the direct copying of substantive elements of the underlying work, but they reach different results. One major distinction concerns how much weight should be given to “commercial uses” in deciding the boundary between infringement and fair use.

Prompt Engineers

The third and final category of interested parties is the prompt engineer or prompter. These are the people who use generative AI services like ChatGPT and Midjourney to create writings or images. The precise question here is one that the court avoided in Thaler: is a prompter the author of a work generated by AI? This question remains unanswered, and the Copyright Office has, perhaps too hastily, begun to answer the question. In February 2023, the U.S.C.O. refused to register the individual images in the graphic novel, Zarya of the Dawn, because the images were created by AI.[8] It did, however, allow for the compilation of the images as a graphic novel to be protected as its own work. Nonetheless, the Copyright Office seemed to recognize that this blanket refusal was problematic and issued a request for commentary on the subject in August 2023. The Copyright Committee of the American Intellectual Property Law Association (AIPLA) drafted commentary addressing the application of copyright law to AI in October 2023.[9] In the commentary, the AIPLA addressed the importance of flexibility in determining what constitutes a “human creation” for the purposes of copyright authorship. A blanket rejection may raise questions about findings of authorship in other mediums that attenuate the creator’s control over a work’s moment of fixation (i.e., certain forms of photography use automatic exposures and slow shutter speeds to allow many random movements to be captured in a single frame, leaving the photographer with limited control over her subject). As of this post, the question of authorship in AI outputs remains unanswered, but affording some level of copyright protection to prompters for their generations could further the economic and creation incentives that form copyright law’s constitutional purpose.

However, prompters should be wary of the outputs they generate because the ability for an output to infringe an existing work is present. For example, if I ask Midjourney to create an image of “an old man standing on top of the Empire State Building dressed as Spider-Man,” the use of the Spiderman design may constitute an infringement of Marvel, Sony, or Disney’s copyright, not only in the suit design but the character itself. The use of AI does not diminish the rights of existing copyright owners, and prompt engineers should take care to ensure they are not infringing the works of others.

Ultimately, the advent of generative AI has raised many concerns regarding intellectual property. Whether copyright protection exists for generative AI outputs and whether the ingestion process constitutes fair use or infringement per se are vital questions, the answers to which will become the sine qua non of the relationship between IP and AI. The landscape is evolving, and the need for developers, prompters, and existing authors to seek legal advice will only become more pressing as litigation escalates. Yet, it seems inevitable that some form of copyright protection, however thin, will find itself married to works created with the assistance of AI. From copyright concerns to questions regarding data privacy and informational security, consulting with an intellectual property attorney regarding the use, integration, or development of generative AI models is more important than ever.

[1] See 17 U.S.C. §§102, 106.
[2] See Thaler v. Perlmutter, 2023 U.S. Dist. LEXIS 145823 (D.D.C. 2023).
[3] See Thaler v. Perlmutter, No. 0:2023cv05233 (D.C. Cir.) (filed Oct. 18, 2023).
[4] See generally Doe 1 et al v. Github, et al., No. 4:22-cv-06823, 2023 WL 3449131 (N.D. Cal. Nov. 13, 2022); Andersen v. Stability AI Ltd., No. 3:23-cv-00201, 2023 WL 7132064 (N.D. Cal. Jan. 13, 2023) (dismissing many of the plaintiffs’ claims); Getty Images (US) Inc. v. Stability AI, Inc., No. 1:23-cv-00135 (D. Del. filed Feb. 3, 2023); Kadrey and Silverman, et al. v. Meta Platforms, Inc., No. 3:23-cv-03417 (N.D. Cal. filed July 7, 2023); Silverman v. OpenAI, Inc., No. 3:23-cv-03416 (N.D. Cal. filed July 7, 2023); Authors Guild, et al. v. OpenAI, Inc., et al., no. 1:23-cv-08292 (S.D.N.Y. filed Sept. 18 2023) (consolidated Feb. 6, 2024); The New York Times Co. v. Microsoft Corp., et al., 1:23-cv-11195-SHS (S.D.N.Y. filed Dec. 27, 2023); Daily News, LP, et al. v. Microsoft Corp., et al., 1:24-cv-03285-SHS (S.D.N.Y. filed April 30, 2024).
[5] See The New York Times Co. v. Microsoft Corp., et al., 1:23-cv-11195-SHS (S.D.N.Y. filed Dec. 27, 2023).
[6] See Daily News, LP, et al. v. Microsoft Corp., et al., 1:24-cv-03285-SHS (S.D.N.Y. filed April 30, 2024).
[7] Compare Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021) with Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
[8] See Zarya of the Dawn (Registration # VAu001480196), U.S. Copyright Off. (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
[9] Jake Bryant, the author of this article, was a member of the AIPLA’s Generative AI taskforce that drafted the commentary.

Virginia’s Right to Privacy and its Impacts on Marketing

Friday, July 12th, 2024

Article co-written by Andrew Gay, Jake Bryant, and Summer Associate Carter Leverette

Today, social media is a powerful tool for marketing. Influencers, entrepreneurs, and businesses use social media platforms to promote ideas, products, and services in a way that attracts consumers on a personal level. Anyone with a phone or computer can create content that is instantly pushed out to millions of viewers. Consider this example:

Bob Buyer hires Chris Carpenter to build a set of custom bookshelves for his den. Chris does not disappoint and delivers and installs a flawless set of custom bookshelves. Chris knows that client referrals are a big deal. Chris takes a video on his phone of the finished product. Bob is standing in the doorway as Chris pans the video from one side of the room to the other and is now part of the footage. Chris also takes a picture of Bob in front of the bookshelves. Chris posts the video and the picture on his social media platforms and his website.

The caption for the video reads: “Walk-through video of custom bookshelves in client’s den.”

The caption for the photo reads: “Here is Bob with his custom bookshelves. Another satisfied customer.”

Nothing wrong with that, right? Perhaps not, if Chris has the right to use Bob’s image for commercial reasons. Did you know that Virginia provides a cause of action for an individual whose “name, portrait, or picture” is used “for advertising purposes or for the purposes of trade” if the publisher has not “first obtained the written consent of such person?”[1] If your reading this and know that you’ve done something similar to Chris Carpenter, then you’re going to want to continue reading.

What does it mean to use someone’s name or likeness for an advertising purpose?

When a person’s name or likeness appears in a publication (e.g., a social media post, newspaper ad, or brochure) and “taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service,” then it is being used for an advertising purpose.[2] This means that when you create content that includes another’s name or likeness when trying to promote goods or services to prospective clients, you are potentially using that person’s name or likeness for advertising purposes.

What does it mean to use someone’s name or likeness for the purpose of trade?

Similar to advertising, “[i]n determining whether the use was ‘for the purposes of trade,’ courts are to consider whether the name was used to draw trade to an entity.”[3] This means that if you are including someone’s name or likeness in your content for the purpose of attracting others into a business relationship with you, then you are using that person’s name or likeness for the purpose of trade.

At this point, you are probably wondering, does this mean that everyone who appears in any of my promotional content needs to give me their written consent? Even the guy just walking around on the street in the background? Fortunately, it does not. There is one main exception to this law that content-creating business owners need to be aware of to determine whether they need to gain the written consent of an individual whose name or likeness appears in their content. This exception is known as the “Incidental Use Exception.”[4]

What is the Incidental Use Exception?

This exception evaluates (1) “the main purpose and subject” of the content and (2) whether there is a “direct and substantial connection between the appearance of the [individual’s] name or likeness” and the content’s purpose.[5] The content will be viewed in its entirety. If the inclusion of another’s name or likeness is “sufficiently isolated, fleeting, or insignificant, the publishing party will not be liable.”[6] On the other hand, if the content references to or identifies the individual, making them the main subject of the work, or the content’s main purpose requires including that person’s name or likeness, then written consent is required to avoid liability. [7] For these reasons, it is hard to imagine a scenario where including an individual’s name in your promotional content will not require that person’s written consent. Still, there will be many scenarios where the appearance of a person’s likeness in your content will be merely incidental.

Here are some hypotheticals to assist in illustrating what is likely permissible and then what is likely impermissible. However, the best option is to ensure that your business is protected, which is why the best practice is to have consent for advertising purposes agreements with your customers, clients, students, employees, residents, subcontractors, and the list could go on.

Likely incidental use scenarios:

• An author takes out an advertisement in the local newspaper about an autobiography that he has recently written. The autobiography contains many photos from the author’s past. The advertisement includes six of these different photos. One of the photos depicts the author and several of his college buddies and is labeled “Doe and his college buddies.” The advertisement does not mention any of the other individuals in the picture by name, and the main purpose of the advertisement is to share about the author’s autobiography. The use of the other individual’s images is incidental to the advertisement as a whole because such use is not related to the advertisement’s purpose, the autobiography.[8]
• A community college creates an online advertisement promoting the school’s educational programs and extra-curricular opportunities. The advertisement is lengthy and details what the college has to offer. The college’s advertising department selects photographs of students and faculty engaged in their studies and activities around the campus for the purpose of filing up space on the advertisement. No where in the advertisement are the individual’s names listed, and the advertisement does not specifically reference to any of the individuals pictured. The individuals pictures are incidental to the main purpose of the advertisement, which is to provide information about the college’s programs to prospective students.[9]
• A drone flies over a job site, taking a video of the constructing of a new subdivision. In the video, there happens to be the faces of the construction workers who are building the homes. The developer posted the video to his website and social media pages captioned “look at the awesome homes that my company is building.” This video is an advertisement because it is used to promote the homes the developer is building with the goal of attracting future homeowners. The main purpose of the video is to promote the new homes, and the main subject of the video is the under construction homes themselves. The workers’ faces do not have a direct and substantial connection to the purpose of the video and are not the main subjects of the video. Therefore, the appearance of the workers’ likenesses is likely incidental.
• Bob’s standing in the doorway during Chris Carpenter’s video walkthrough of the den.

Likely not incidental use scenarios:

• Like Chris Carpenter’s photograph of Bob Buyer, a builder takes a picture of one of his clients and his family in front of the new home that the builder just built for his client and posts it on social media, captioning it “Mr. Client and his family love their new home.” The post is for advertising purposes because the builder hopes to attract future business by showing that his clients are happy with the homes he builds them. The main purpose of this advertisement is to show that the builder makes his clients happy, and the main subject of this advertisement is Mr. Client and his family. Here, there is a direct and substantial connection between the appearance of Mr. Client and his family and the purpose of the advertisement. Written consent is required before posting.
• A bar plans to host a DJ party one weekend. The social media manager for the bar goes online and finds images of attractive women at DJ parties at other clubs and then post the images to the bar’s social media accounts, captioning the post “Saturday night DJ Cut & Paste and the most beautiful women in the city will be at our bar.” The ad directly references the individuals whose likenesses are displayed and does so in a way that makes it appear those individuals are affiliated with the bar and will be at the event. The main purpose of the advertisement is no longer to inform the public about a particular event or DJ but is instead to increase traffic by convincing people that the most attractive women in the city will be at the bar. The main subjects of the post are the women pictured. The use of the women’s likeness is directly and substantially connected to the main purpose of the advertising. Written consent is required before posting. [10]

Marketing is an important part of a business and its ability to attract and generate work or sales. Don’t let your marketing efforts create a liability for the company. Contact us today for assistance with image rights and releases.

[1] VA. Code § 8.01-40 (2024) (it is worth noting that Virginia courts also look to New York courts for guidance when interpreting this provision, because New York has a similar provision and more developed law). This provision establishes what is generally called a right of publicity, one need not have celebrity status to receive such a right in Virginia. This provision is not to be confused with VA Code § 23.1-408.1, which came into effect on July 1, 2024 and provides unique name, image, and likeness compensation regulations for intercollegiate athletics.
[2] Town & Country Props. v. Riggins, 249 Va. 387, 394–95 (1995) (quoting Beverley v Choices Women’s Medical Center, Inc., 587 N.E.2d 275, 278 (N.Y. 1991); see also Wiest v. E-Fense, Inc., 356 F.Supp.2d 604, 610–11 (E.D. Va. 2005).
[3] Goodweather v. Parekh, 2020 U.S. Dist. LEXIS 253268, 28 (E.D. Va. 2020).
[4] Williams v. Newsweek, Inc., 63 F.Supp.2d 734, 737 (E.D. Va. 1999). There is another big exception to this law, the “Newsworthiness Exception.” However, this exception focuses on if the name or likeness is published from a news source, and is part of a publication on a matter of public concern. Therefore, this exception will generally not be relevant to a content-creating business owners.
[5] Id.; see also Lohan v. Perez, 924 F.Supp.2d 447, 455 (E.D.N.Y. 2013) (citing Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116, 119 (S.D.N.Y. 1991)) (“Whether a use falls within [the incidental use] exception to liability is determined by the role that the use of the plaintiff’s name or likeness plays in the main purpose and subject of the work at issue.”).
[6] Geiger v. Abarca Family Inc., 2022 U.S. Dist. Lexis 167087, 8 (E.D. Va. 2022).
[7] See Williams, 63 F.Supp.2d at 737; see also D’Andrea v. Rafla-Demetrious, 972 F. Supp. 154, 157 (E.D.N.Y. 1997).
[8] This hypothetical is based off of Williams, 63 F.Supp.2d 734.
[9] This hypothetical is based off of D’Andrea, 972 F. Supp. 154.
[10] This hypothetical is based off of Geiger, 2022 U.S. Dist. LEXIS 167087.