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Mark A. Baker

Mark A. Baker

Mark A. Baker Law, LLC
  • Business Law, Entertainment & Sports, Intellectual Property
  • Alabama, Georgia, North Carolina, Tennessee
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Summary

A lawyer for over 30 years, Mark's extensive legal background representing large corporate entities and artists both established and emerging, as well as his work as a gigging musician, make him equally comfortable navigating the halls of Corporate America and the mustiest of music halls. Licensed to practice law in all the federal and state courts of Georgia, Tennessee, North Carolina and Alabama, as well as the Fourth Circuit Court of Appeals, Mark is an alumnus of the University of Alabama (B.A.) and Cumberland School of Law (J.D.), and served two years as judicial law clerk to a federal judge. In addition to representing artists, Mark has represented many of the country’s largest financial institutions, most recently as a partner at Johnson & Freedman, LLC, a mid-size firm serving clients in Atlanta, Georgia. In 2016, he married a professor of art at Florida State University and moved to Tallahassee, where he continues to represent clients nationwide (in matters of federal law, such as trademark and copyright) within his principal practice areas.

Practice Areas
  • Business Law
  • Entertainment & Sports
  • Intellectual Property
Fees
  • Free Consultation
    Free initial consultation of approximately 30 minutes.
  • Contingent Fees
    I occasionally enter contingent fee arrangements, depending upon the subject matter.
  • Rates, Retainers and Additional Information
    I also perform certain services for a flat fee, such as routine contract preparation and review, copyright and trademark registrations, and corporate formations.
Jurisdictions Admitted to Practice
Alabama
Georgia
North Carolina
Tennessee
4th Circuit
Languages
  • English: Spoken, Written
  • French: Written
Professional Experience
- Current
Managing Partner, Bankruptcy Department
Johnson & Freedman, L.L.C., Atlanta, GA
-
Associate Attorney, Manager, Bankruptcy and Foreclosure Departments
Law Offices of Mark Weber, P.C., Atlanta, GA
-
Associate Attorney
Gingold, Kaufman & Chaiken, Atlanta, GA
-
Associate Attorney
Schwall, Ruff & Goodman, Atlanta, GA
-
Judicial Law Clerk
Honorable L. Chandler Watson, Jr., U.S. Bankruptcy Judge for the Northern District of Alabama
-
Staff Attorney
Legal Services Corporation of Alabama, Anniston, AL
-
Education
Cumberland School of Law, Samford University
J.D. (1982)
University of Alabama School of Law
B.A. (1979) | English Literature
Professional Associations
Tennessee State Bar
Member
- Current
North Carolina State Bar
Member
- Current
Georgia State Bar
Member
- Current
Atlanta Bar Association
Member
- Current
Alabama State Bar
Member
- Current
Publications
Articles & Publications
David Bowie: Star Man
Paste Magazine
Elvis Costello: My Aim Is True
Paste Magazine
Eyemazing: The New Collectible Photography
Paste Magazine
King of Queens by George O'Dowd
Paste Magazine
Quit Your Job
Esquire Magazine
Salvador Dali: The Making of an Artist
Paste Magazine
The Street Photographer's Manual
Paste Magazine
Avoiding Traps That Snag the Unwary
Servicing Management Magazine
Speaking Engagements
Chapter 7 and 13 Bankruptcy practice
WGUN?AM Radio, CBS Affiliate
Careers in Entertainment Law
Emory Law School
Debtor/Creditor Law, Continuing Legal Education
Georgia State University, College of Law
Music & the Law
Emory Law School
Panel Participant
Copyright for Artists
Atlanta Volunteer Lawyers for the Arts
Opportunities for the Sole Practitioner in Entertainment Law
Emory Law Student Sports and Entertainment Law Section
Money Matters: Keys to Advising Clients During Foreclosure and Repossession Actions in Georgia
National Business Institute
Legal Answers
15 Questions Answered

Q. An illustrator is interested in purchasing a license to my photograph for reference purposes, how does this work?
A: As the creator of the work, and therefore the owner of the copyright (assuming you have not otherwise transferred the copyright or made the work as a work-for-hire), you have the exclusive right, among other rights, to create derivative works. An illustrator who creates illustrations from your original (copyrighted) work is creating a derivative work (subject to issues regarding "fair use," which I will not discuss here), and it's up to you whether, and under what terms, to permit this use. If you are interested in allowing the illustrator to use your work for the purpose of making derivative works, consider the following possible licensing arrangements: - a written licensing agreement, describing the permitted use, with a one-time licensing fee that will pay you in full for the illustrator's uses. The downside is that if the illustration(s) makes significant money, you won't be entitled to any additional sums; on the other hand, if the illustration(s) doesn't make any money, then at least you were paid for the use. - a written licensing agreement, describing the permitted use, with a royalty-only scheme, such as 30% of gross sales. In this context, if the illustration(s) doesn't sell, you won't see any money. - a written licensing agreement, describing the permitted use, with a hybrid financial arrangement: upfront fee (maybe a small sum) plus a royalty payment, such as 30-40% of gross sales. In this context, if the illustration(s) doesn't sell, at least you got some upfront money. If you want to license the work, try to determine how badly the illustrator wants it, and what his financial wherewithal is - this can allow you determine the best option that works for you and the illustrator and allows you to set a fair fee for you work. Bear in mind the difficulty in determining exactly what sales or other income illustrator has on account of the illustrations - this means it may be difficult to determine whether there have been sales, and what you are owed. Any license agreement that is based upon a royalty should also have provisions requiring the illustrator to account to you periodically for sales/royalties.
Q. copyright a song - to record the song on a cassette, mail it to yourself, make sure it's never opened or seal broken.
A: You have described a "poor man's copyright." It's worth about as much as the piece of paper it's written on, but not after you add postage. Under U.S. law, a copyright comes into existence the moment the original idea is "fixed in a tangible medium" - when you record the original song on a cassette tape, you have fixed it in a tangible medium. However, under U.S. law, the only way to enforce the copyright is through the federal courts, and that requires registration of the copyright with the Copyright Office. So why not spend the $55 filing fee (for which you may register as many tracks as you please, provided they have common authorship) and have the peace of mind that you can deal with any infringement through the courts. By the way - if you wait to register until after you learn of an infringement, you may be giving up important rights to claim certain damages.
Q. I filed for Ch. 7 in the middle of a month. At the beginning of that month, I got a $2000/year raise, but filed
A: I agree with your attorney's assessment, assuming, of course, that you make this disclosure at the 341 meeting. Following the meeting, there may be other matters to address by amendment, so it makes sense to address them all in a single amendment.
Q. I live in Alabama and I was wondering if you can file on a car only and not other things.
A: The answer to your question requires analysis of a number of variables that you haven't addressed, to determine whether you are eligible for chapter 7 relief (a so-called "fresh start," with discharge of all eligible debts) or would otherwise be required to file a chapter 13 case (which allows you to cure your contractual defaults and repay your creditors over 3-5 years). Regardless of the type bankruptcy for which you are eligible, you must schedule ALL of your debts, assets and income, together with other financial information, and you cannot pick and choose. Under both chapter 7 and chapter 13, there are provisions to allow you to pay for and retain a car, real estate and other assets, but the provisions are specific to each of the chapters for which you may be eligible. To understand your options better, I recommend you discuss your eligibility with a seasoned bankruptcy attorney in your area. Best of luck.
Q. Does anyone know if the skit "Who on First" by Abbott & Costello is public domain or owned by their relatives.
A: The copyright has PROBABLY fallen into the public domain, based upon case law. In a recent lawsuit decided by the Second Circuit Court of Appeals, a playwright had used about 30 seconds of the "Who's On First?" skit in a Broadway show, "Hand of God." The heirs of Bud Abbott and Lou Costello, together with the movie studio, TCA, which claimed copyright to the film, filed suit claiming copyright infringement. The Second Circuit found that the usage was a not "fair use," but that the plaintiffs/heirs had failed to established that they held a valid copyright interest, and the case was dismissed. The TCA plaintiffs said that Abbott and Costello’s heirs received rights in the skit from Universal Pictures Corp. (UPC) in 1984. It appeared that the routine had been separately registered for Abbott and Costello in the U.S. Copyright Office in 1944, though not renewed in 1972, as required at that time for continued copyright protection. The appeals court held: “In sum, because plaintiffs fail plausibly to allege that (1) Abbott and Costello assigned their common law copyright [as an unpublished work] in Who’s on First? to UPC; (2) the Routine, as appropriated by defendants in Hand to God, was first created for UPC as a work-for-hire; or (3) the Routine so merged with the UPC movies in which it was performed as to become a unitary whole, we conclude that plaintiffs did not plead their possession of a valid copyright in the Routine, as required to pursue their infringement claim.” TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir. 2016). The heirs then appealed to the U.S. Supreme Court and the defendants argued in their certiorari brief that “the Second Circuit had announced a new rule of eligibility for copyright renewal under the 1909 [Copyright] Act, applied retroactively to a 1940 work — i.e., that the previously unpublished material did not become part of the movie’s unitary copyright for renewal purposes unless it was created solely for the movie. Nothing in the 1909 Act supports such a judge-made rule.” In other words, to be covered under the movie's copyright ("One Night In the Tropics," made in 1940), the material must have been created for the movie; but the "Who's On First?" skit was created prior to the movie, had been performed on the Kate Smith Radio Hour in 1938, and was separately registered for copyright by Abbott and Costello (but the copyright was not renewed). The Supreme Court declined to hear the case, thus leaving the Second Circuit decision standing. Thus, it seems settled that the "Who's On First?" skit has fallen into public domain.
Q. Is it illegal to use a picture of bamm bamm from the Flintstones as part of a logo for a music recording label?
A: Unless you have permission or a license to use a picture of Bamm-Bamm as part of your logo, it is likely that your unauthorized use will infringe upon the owner's (probably Hanna-Barbera or ABC) trademark or other rights and expose you to legal liability.
Q. Can I legally sell a resource to accompany a novel study on an online store and refer to the actual title of the book?
A: I'm not sure I understand your question. Please explain a little more. Thanks, Mark A. Baker
Q. Can a brand name be trademarked by someone else if it has been registered as a legal entity in the State of Alabama?
A: If the other party's use of the name has been trademarked through the USPTO, you may have an uphill battle. Much would depend upon the timing, although if your usage of the name commenced before the other party's use, and you can document this use, then there may be an avenue to proceed. Without all the relevant information, though, I cannot make a determination of whether you may have a way to challenge the other party's use of the name.
Q. What is a derivative art work? If I do some additions to an existing art work of some artist and make a derivative.?
A: Among other rights, the Copyright Act of 1976 (17 U.S. Code § 106) provides the copyright owner the exclusive right . . . “(2) to prepare derivative works based upon the copyrighted work * * *.” Derivative works are based on or derived from one or more already existing works. Copyright Office Circular 14 (https://www.copyright.gov/circs/circ14.pdf) is helpful in understanding the nature of a derivative work. It is critical to understand that the rights to make derivative works belong to the owner (or his licensee/assignee) of the copyright. You’ve asked, will your new work be exempted from copyright infringement because it is a “fair use” of the original? Unfortunately, there is no black and white test to determine with certainty whether a new work is a derivative of the original (and only the copyright owner may legally make a derivative work) or a fair use of the original, which is not a copyright infringement. There’s no better online resource to understanding the scope and limitations of the fair use doctrine than the Stanford University Libraries’ “Copyright and Fair Use” treatise (https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/). In the past several years, courts have tended to focus the inquiry into whether the original copyrighted work that was used has been “transformed” by adding new expression or meaning, or has been given value by creating new information, aesthetics, insights, and understandings. If your new work is not “transformative” of the original, then a court would likely find it to be a derivative work, which is an infringement of the copyright owner’s exclusive rights to make derivative works. The legal information herein should not be relied upon by you. But you should consult competent legal counsel for an opinion whether your new works are a fair use of an original copyright work.
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Mark A. Baker Law, LLC
1804 Old Fort Drive
Tallahassee, FL 32301
USA
Telephone: (678) 999-3944
Mark A. Baker Law, LLC
Of Counsel - McMichael Taylor Gray, LLC
5555 Glenridge Connector
Suite 200
Atlanta, GA 30342
USA
Telephone: (404) 474-7149