Ways you might be infringing on copyrights and how you can avoid it 

Guest post by John Rees, Attorney, Callister Nebeker & McCullough

Under federal copyright law, anyone who willfully infringes a copyright in certain ways will be subject to criminal penalties, including prison for several years.  That’s a remedy to be taken seriously.  It’s probably not likely that the average consumer or employee will be criminally prosecuted, but there are criminal remedies available.  Since copyright infringement may be a crime, if I read a Dilbert® cartoon, really like it, and forward it by email to a friend, is there a chance I will be sent to prison?

What works are copyrighted?  The definition is very broad and essentially covers anything that is original and fixed in a tangible medium of expression, which includes digital storage.  This includes blog posts, newspaper and magazine articles, images on websites, presentations, memoranda, and educational literature.  The list is very long.  Usually the issue with copyright rests not with whether the work was original and therefore copyrighted, but instead whether the person in question of copyright infringement had the right to do what he or she did with the work.

Copyright infringement occurs when a copyrighted work is used, copied, distributed, revised, or publicly displayed without the consent of the author or creator of the work.  Using the Dilbert® cartoon as an example, infringement includes making a photocopy of the cartoon, scanning the cartoon and saving it in a Dropbox® folder, sending the cartoon to a friend by email, or using the cartoon in a PowerPoint presentation to a chamber of commerce.  Infringement also occurs when a presentation is copied and distributed internally in a business or an email is sent to a group in an organization to promote a strategic goal, but includes an image created by someone else.

The act of making a copy or sending a work by email is not really dependent on the audience.  An internal email or interoffice copy is just as infringing as blasting a post with infringing material to thousands of subscribers to a news service.  It should be noted, however, that the original comic may be delivered to someone in its original form, so long as a copy is not made and delivered.

There are a few considerations for assessing the risk of potential infringement.  Sending an internal email of a Dilbert® cartoon is not likely to generate actual damages.  If Scott Adams, as the creator, gets really upset, it’s possible he could seek an injunction against any future infringement, but it’s not likely there would be any actual damages.  However, Scott would have a right to claim statutory damages.  These are damages awarded for situations like this where the actual damages are nominal at best, but the law wants to provide a remedy to the copyright owner.  Statutory damage awards may be as high as $30,000 for infringement of the work, but if the infringement is found to be willful, the award may be as high as $150,000.  Statutory damages are intended to make us think twice before engaging in any potentially infringing activity.

Infringement does not occur if the person engaging in the copying or other activity has consent, permission, or an express license to copy, distribute, or otherwise use the work in a way that might otherwise be infringing.  Usually professionally published works, and often websites, provide an easy way to request permission to use a work.  This is not to suggest that the author may not want a royalty, or impose limitations on the work, but this is certainly the safest way to use a copyrighted work.  The reason there is so much copying and distribution in the social media world is that the terms and conditions of the social media providers require licenses and rights to allow the distribution, copying, and other use of content posted on the social media sites.

Finally, there is fair use.  Unfortunately, fair use does not mean copying anytime there is not a profit involved, or if there is less than 20 percent of a music composition involved.  There are no bright line tests.  In fact, the test is difficult to implement, and unless a work is being used by a nonprofit institution for teaching or critical analysis, or something very similar, be wary of claiming fair use.  Typically fair use is raised after the infringement claim is made, not when someone is considering using a work of someone.  If someone is prepared to take the time to do the analysis and take the risk of coming under the fair use umbrella, the person or business would be well advised to use the time and effort getting consent or a license from the author.  In most situations, invoking fair use prospectively is risky.

Making decisions on the use of an original work created by another can be tricky.  It’s easy to conclude that sending funny stories, posting newspaper clips, and forwarding cool content from a website does not constitute infringement, because we seldom, if ever, hear of anyone being sued for infringement.  But this is one case where having the masses engage in the behavior does not provide legal comfort.  It may mean that the risk of being sued is not real high, but it does not make the activity legal.  It simply means the law is not always being enforced.

John Rees is a business lawyer with the law firm of Callister Nebeker & McCullough who helps clients find solutions to their business legal needs, particularly in a complex legal and business environment. He focuses on corporate and intellectual property issues, particularly relating to licensing and doing business on the internet.

Gift giving made easier for Heidi with person-to-person payments Oct 26, 2015, 8:01 am By Heidi Carmack Pfaffroth

Heidi and her three brothers decided to gift their mom with a spa package for her birthday. As the only one who had ever visited a spa, Heidi was charged with figuring out the details of the gift. Heidi found a nice spa near where her mom lived, chose a package and sent Casey, the brother living in that area, to pick up the gift certificate.

The hard part was yet to come: Getting the money from the siblings going in on the gift. Can you relate? Despite that fact that we all know what it’s like to be in this position, no one enjoys that line between reminding and nagging.

Heidi lived near most of her siblings so she collected the money and offered to send it to Casey (since none of them kept checks on hand anymore). One brother lived down the street so that was easy. Heidi had a trip planned to visit another brother that week, so she send a text to the brother with the amount and he was ready with money when she came. She deposited the money from both brothers into her account. Then, Heidi set up a person-to-person payment from her Bank of American Fork account and was able to quickly send a payment to Casey, without a fee.

Heidi has used PayPal® before, mailed checks, had her bank mail a check from the old bill pay system, given cash in person, made an electronic payment from an account at another bank from their person-to-person system, and more, but a person-to-person payment on the new system at Bank of American Fork was the easiest—and cheapest—for her to use.

To use it, log in to your online banking. Select the “bill pay” tab and choose “add a payee” if you haven’t paid this recipient before. Then, select “pay an individual.” You’ll have the option to send the payment via email, using their account information or with a mailed check. Once you add the payee, that individual will be saved in your bill pay system to make it easier to send additional payments. You can even send a payment as a gift or donation. If you have questions, use the “live chat” feature or call 800-815-BANK.

After realizing how easy it was to use the new bill pay system at Bank of American Fork for fee-free, person-to-person payments, Heidi has been working on persuading her brothers to open MyRate checking accounts at Bank of American Fork so they can use the same system. Hopefully I’ll have an update on how that went soon.

Here’s are screenshots if you want to see the step-by-step. You can always call 800-815-BANK with questions.

PayPal is a registered trademark of PayPal Holdings, Inc.

Enjoying an afternoon of service with Tiny Tim Foundation Oct 19, 2015, 8:03 am By Heidi Carmack Pfaffroth

Last month, Bank of American Fork arranged a day of service in support of one of the bank’s long term customers, Alton Thacker, founder of Tiny Tim’s Foundation for Kids.

Tiny Tim’s Foundation for Kids builds and delivers 64,000 toys every year to needy children around the globe. They are also sent to hospitals where patients can play with and keep them; including Primary Children’s and Shriners hospitals.

Employees and other volunteers enjoyed getting to know one of the bank’s customers and building cars for kids. Bank of American Fork employees love getting to know customers and enjoy learning about the interesting and unique people behind the businesses and organizations the bank serves. Although we don’t have the chance for every employee to learn about every customer, we appreciate our customers and the good work done in our community.

“Mr. Thacker, our longtime friend and customer, brings great joy to children in need throughout Utah and around the world,” said Bill Swadley, vice president CRA/business development officer for Bank of American Fork. “We are grateful that we can help him in one small way by arranging a day of service where people can go and help him in this great cause.”

Bank of American Fork also made a cash donation in support of Tiny Tim’s Foundation for Kids. We were lucky enough to receive a letter from some of the local volunteers who were able to help build cars because of the donation.

Do you have questions about EMV chip cards? Oct 15, 2015, 6:00 am By Heidi Carmack Pfaffroth

News has been swirling the last few months about an October 1 deadline for EMV chip cards. You may have received a card with an EMV chip from a financial institution you do business with. Either way, you might have questions about EMV chip cards.

Here’s what you need to know.

The liability shift for EMV chip card technology doesn’t change liability for customers. Bank of American Fork and other U.S. banks and card providers will continue to protect card users against fraud. Users are still expected to report lost or stolen cards promptly. After October 1, merchants without updated technology must assume the financial liability, instead of banks, in the event of bank card fraud.

EMV chip cards may be able to reduce the risk of fraud at point-of-sale purchases. When a customer uses an EMV chip card during a point-of-sale transaction with a merchant that has an EMV chip card-enabled system, there is additional protection from fraud. If an EMV chip card is used somewhere without EMV chip card capability, including online or purchases where the card is not present, the EMV chip will not provide additional security.

Bank of American Fork has purchased stock of EMV chip cards and is prepared for the upgrade to EMV chip cards. Currently, our vendors are still in the process of making the necessary upgrades to provide our customers with EMV chip cards. We are hopeful that we will have EMV chip cards in place by 1st quarter 2016. At that point, we will replace cards as customers come in for replacements or open accounts. Any new cards we mail to customers will also be EMV chip cards. We will let you know when we reissue cards for all customers.

Frequently Asked Questions

How does EMV chip card technology protect my information?

Every time you use your card at an EMV chip card-activated terminal, the embedded EMV chip card generates a one-time use code.  This code is virtually impossible to counterfeit and helps reduce in-store fraud.

Once I get an EMV chip card, will my card information change?

For your convenience, your card number and PIN have not changed.  Your card may have a new expiration date, so be sure to update your information with billers that charge your card regularly.

Can I still use my current, non-EMV chip card after October 1?

Yes, your current, non-EMV chip card will continue to work at all of the stores and places you’re used to.

I’ve heard that I can’t take my non-EMV chip card to Europe, is this true?

No, though there are a few small business owners in Europe who choose not to accept non-EMV chip cards, your card will be accepted most places.

I have heard people refer to EMV chip cards as ‘chip and PIN cards’; will I have to use a PIN with all of my purchases once I get my new EMV card?

No, your new EMV chip card will still give you the option of signing or using a PIN to complete the transaction.

What does EMV mean?

EMV stands for Europay Mastercard Visa.

How do I use an EMV chip card?

If the merchant’s terminal has the new technology, you’ll enter the card into the bottom of the terminal and leave it in the terminal until the transaction has been processed, typically a few seconds. Once you remove the card, you’ll be able to take your receipt and you’re finished.

If I have an EMV chip card, does that mean I can only use it at merchants that accept EMV chip cards?

No, EMV chip cards also come with the standard magnetic stripe on the back of the card.  This allows them to be used in both EMV and non-EMV transactions.

New Mortgage Rules and Disclosures Good for Consumers Oct 13, 2015, 2:09 pm By Heidi Carmack Pfaffroth

Those working to close a mortgage may have an easier time finding and understanding information that might be important to them due to new rules and disclosures that recently went into effect from the Consumer Financial Protection Bureau. Its Know Before You Owe initiative is designed to help consumers understand their loan options, shop for the mortgage that’s best for them, and avoid costly surprises at the closing table.

“Most banks, ours included, have been preparing for this change for a while,” said Amy Dunkley, mortgage department manager at Bank of American Fork. “We believe the new Loan Estimate resulting from the new rules and disclosures is preferable over the old Good Faith Estimate and Truth-In-Lending forms. It provides straightforward information in a much easier-to-read and understand format that consumers will probably appreciate.”

Under Know Before You Owe, four disclosures are replaced with just two. The former Good Faith and Preliminary Truth-In-Lending disclosures are replaced by the new Loan Estimate. The HUD-1 Settlement Statement and the final Truth-In-Lending disclosure are replaced by the new Closing Disclosure. The disclosures are redesigned to highlight the information consumers typically look for and need to know to be prepared.

The new Closing Disclosure has potential to delay a closing since it needs to be given to borrowers at least three business days before the closing date. But if everyone involved pays close attention it doesn’t have to cause a delay, and as the process becomes more familiar with real estate agents, lenders and borrowers, delays should decrease.

The new rules and disclosures went into effect Oct. 3.

Bank of American Fork Strategy Kept Bank Profitable Benefiting its Community

Case Study Wins First Place in CSBS Competition – Will Be Presented at Community Bank Research and Policy Conference

During the Great Recession of 2008 to 2011, Bank of American Fork was able to succeed when many Utah community banks either went out of business or struggled immensely according to a University of Utah study. (Video)

The study conducted in 2014 reports that Bank of American Fork was successful during the Great Recession because it performed an extensive workout process, acted early to mitigate loss and found new sources of capital.

The University of Utah study won first place at the 2015 Community Banking Competition Case Study of the Conference of State Bank Supervisors.

According to the study, in 2008 the housing bubble popped on community banks with high concentrations of acquisition, development, and construction loans forcing both regulators and bankers to explore “new territory.”

“Bank of American Fork’s success directly benefits its community.”

“The Great Recession presented a difficult situation to Bank of American Fork [and other community banks] because of its high concentration in commercial real estate lending,” according to the study. “[Bank of American Fork] was able to overcome these high concentrations and continue lending throughout the downturn.”

More than 20 percent of Utah community banks closed from 2009 through 2011.

“Bank of American Fork succeeded through the downturn because it acted early to limit exposure, it performed an extensive workout process on troubled loans, and it was innovative in pooling new funds,” said the report.

Bank of American Fork accomplished this due to its strong relationships with its customers to accurately assess the recoverability of individual loans. The bank was able to adjust the loan-loss allowance account early in anticipation of increasing foreclosures.

“The bank formed the Special Assets Department (SAD) Committee during the downturn to discuss problem loans,” said the report. “It [SAD] met weekly and created workout plans for each borrower. This helped Bank of American Fork employees, from the top to the bottom, have a clear workout strategy throughout the recession.

“The bank’s strategic success afforded it the opportunity to be innovative in sourcing new capital. It created a foreclosed property fund, interest paying checking accounts, and remained profitable throughout the downturn.

“Its strategy kept the bank profitable,” said the report. “And its profitability allowed it to keep lending.”

One of the most important aspects of the report centers on the benefits successful and creative community banks play within their local areas.

“[Bank of American Fork] contributed to its local economy throughout the downturn,” said the report. “Because it interacts directly with its customers, it knows the quality of its assets. During the downturn it boosted allowances early, did an extensive workout process, and innovated capital sources.

“Bank of American Fork’s success directly benefits its community.”

Bank of American Fork was founded in 1913 in American Fork, Utah, where its headquarters remain. It currently has 14 locations in communities throughout Utah and more than $1.4 billion in assets. The bank prides itself on its community focus and community participation.

“It’s as simple as this,” said Richard Beard, CEO of Bank of American Fork. “A community bank succeeds if the community succeeds. We have every interest in the world of the community succeeding.”

The University of Utah students who conducted the study include Jenny Flatberg, Changsu Lee, Kurt Moore, Brett Welker and student advisor, Jack Brittain. The case study will be presented at the Federal Reserve/Conference of State Bank Supervisors Third Annual Community Banking Research and Policy Conference, Sept. 30 – Oct. 1 in St. Louis.

The competition was established by CSBS to build a further understanding of the community banking business model, to connect students with senior bank management, and to serve as a research tool for uncovering new and innovative perspectives regarding the role of community banks in the economy.

Bank of American Fork Supports Customer with Day of Service Sep 14, 2015, 2:25 pm By Heidi Carmack Pfaffroth

People encouraged to help build toys at Tiny Tim’s Foundation for Kids

Bank of American Fork has arranged a day of service for its customers and the community in support of one of the bank’s long term customers, Alton Thacker, founder of Tiny Tim’s Foundation for Kids. on Sept. 17 at 1:00 pm.

Tiny Tim’s Foundation for Kids builds and delivers 64,000 toys every year to needy children around the globe. They are also sent to hospitals where patients can play with and keep them; including Primary Children’s and Shriners hospitals.

The day of service will be held Sept. 17 at 1:00 pm at the Tiny Tim’s factory at 1423 W 8120 S, West Jordan, Utah. Up to 20 participants will help build toy cars that will be used to distribute to children. The materials used to make the toys are provided by various donors throughout Utah.

To participate, interested people should RSVP to Heidi Carmack Pfaffroth at 801-642-3139, or Christopher Liechty at 801-642-3094.

“As a community bank, it is important for us to provide opportunities for people to support great causes,” said Bill Swadley, vice president CRA/business development officer for Bank of American Fork. “Mr. Thacker, our longtime friend and customer, brings great joy to children in need throughout Utah and around the world. We are grateful that we can help him in one small way by arranging a day of service where people can go and help him in this great cause.”

Bank of American Fork also made a cash donation in support of Tiny Tim’s Foundation for Kids.

Good news for business owners looking to grow Aug 20, 2015, 8:11 am By Heidi Carmack Pfaffroth

Guest post by Richard Gray

A bill was approved a few weeks ago on July 28 to increase the loan limits for the Small Business Administration 7(a) loan program for the fiscal year. The program authorization ceiling was increased to $23.5 billion from $18.75, which the program already reached earlier in July. The same afternoon the bill was approved, the SBA was back to processing loans under the 7(a) program.

This is big news for small-business owners who want to grow their business. After the program loan limits were reached on July 23, new loan applications were placed on hold and small-business owners and lenders were told no new applications would be approved for financing until the new fiscal year, which begins October 1, 2015. The fast approval on increasing the limits means that small-business owners can again be approved for financing.

I know the value of SBA loans for small-business owners in our community. I help local small-business owners to get financing to start or grow their businesses. For more than 25 years I have been able to watch as people are able to move their dreams forward because of SBA loans. There are small-business owners here in our community with great ideas and solid businesses but may have less cash for a down payment than lenders usually require, have a short operating history, require a longer-term loan than lenders usually provide or need financing for very specialized equipment or unusual financing needs. Many of these small-business owners have been able to get financing through SBA loans. The 7(a) program is the SBA’s primary and most flexible loan program.

President Barack Obama electronically signed H.R. 2499 into law the morning of July 28, effective immediately. Reopening the 7(a) loan program was so urgent that the president, who was out of the country, authorized the use of the autopen for only the sixth time during his presidency.

The quick action by Congress and the president shows how important the SBA loan program is to the small-business community at large and the economic impact of small business to the economy. Business owners looking to grow will be able to take advantage of the SBA 7(a) loan program, which helps creditworthy small businesses to get financing.

The SBA welcomed the action by Congress to increase the authorization ceiling that would “[allow] the SBA to continue supporting American small businesses as they grow and create jobs to strengthen the nation’s economy,” according to the SBA website.

“Because of the swift decisions of Congress and the president, the short-term lack of funding for the program should not affect or impede to the capital necessary for small-business owners,” said my colleague Aga Merx, an SBA department manager for Bank of American Fork.

Despite the short suspension of the program, demand on the SBA 7(a) loan program this year was unprecedented, proving that U.S. businesses are growing. The amount already approved a week prior to when the program reached its loan guaranty limit was a 25 percent increase over the same period last year. The SBA has approved more than 45,000 loans that total more than $16.5 billion.

The SBA 7(a) loan program was designed to help expand access to capital for small businesses, and its success in doing that created a stronger demand than what the SBA was prepared for.

The Office of the Comptroller of the Currency explains how the 7(a) program operates:

“The program helps creditworthy small businesses acquire financing when they cannot otherwise obtain credit at reasonable terms. The program covers business borrowing requests in which the business has sufficient cash flow to repay the loan but may not have the necessary collateral or history required by a bank’s lending policy.

“The SBA does not provide funds to the borrower. Instead, the SBA guarantees a portion of the lender’s loan, which is conditional based on the lender following certain requirements established by the SBA. If the borrower defaults, the SBA pays off the guaranteed portion of the remaining loan balance. This conditional guaranty covers a portion of the risk of borrower repayment default.”

Small-business loans are critical to helping keep communities growing and people working. The SBA 7(a) loan program is an excellent program for many small-business owners in obtaining financing to start or grow their business. Despite the concern felt by many when loan applications were put on hold, reaching the limits shows that small businesses are growing and the quick approval of increasing the limits shows that many government leaders place value on small-business growth.

Richard Gray is senior vice president of SBA lending at Bank of American Fork, Utah’s community bank leader, an Equal Housing Lender and Member FDIC. Richard has assisted local small businesses in obtaining SBA funding for more than 25 years. He served on the board of directors for nonprofit Kostopolus Dream Foundation and was the chairman for nonprofit Utah Microenterprise Loan Fund, Salt Lake City.

Apple Pay update Aug 19, 2015, 10:49 am By Heidi Carmack Pfaffroth

We anticipate being able to offer Apple Pay in early 2016.

We have been pursuing Apple Pay™ with our credit and debit card processors—we have told you before that we’re excited about Apple Pay. We anticipate being able to offer Apple Pay processing during the last quarter of 2015 or the first quarter of 2016.

This is a later date than we were hoping to be able to offer Apple Pay and we’re sorry for any inconvenience this may have caused.

In order to offer you Apple Pay, we have to make sure we have our applications and networks ready and the vendors we offer credit and debit cards through have to be ready. We are ready. We have been working hard to make sure we can offer the most important technologies, as a part of our pattern and commitment to innovation. However, our vendors aren’t ready—we are making a change with a vendor and another vendor is beta testing Apple Pay with some clients.

We will keep you updated. We are excited about this product and we care about the products that will make your financial life easier. Feel free to call 800-815-BANK with questions, comments or concerns, or leave us feedback at www.bankaf.com.

Apple Pay is a trademark of Apple, Inc. The Apple logo, Apple, iPhone and Passbook are registered trademarks of Apple, Inc.

Why was Utah just named #1 Best Economic Outlook for 2015? Aug 17, 2015, 3:07 pm By Heidi Carmack Pfaffroth

Utah recently earned the top spot for states with the best economic outlook, according to the new edition of Rich States, Poor States released by the American Legislative Exchange Council.



This economic outlook is meant to be a forward-looking measure and ALEC uses 15 areas they have determined to be the best determinants of economic success. The measure is meant to show how each state can expect to perform.

We love Utah over here at Bank of American Fork. As community bankers, we get to help local business owners to finance their dreams and grow. We find that our customers are hard-working, ambitious and intelligent.

What else do you think makes Utah’s economy and business owners successful?

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