‘Sunrise CLEs’ discuss changing gender markers, avoiding copyright infringement

Though the majority of the Indiana State Bar Association’s Solo and Small Firm Conference was filled with experts in various legal fields sharing their in-depth knowledge, conference attendees also had the opportunity to learn a little bit Saturday morning during the conference’s shorter “Sunrise CLE” sessions.

The Saturday morning sessions featured the highlights and latest information about several important topics currently facing attorneys, such as updating gender markers on birth certificates for transgender individuals and the ins and outs of online copyright and fair use laws.

In the realm of gender markers, Indianapolis attorney Maria Matters told her audience that, usually, persons seeking to officially change their gender marker have already gone through the process of changing their names. That’s because doctors and/or psychological counselors often advise their patients and clients to live within their gender identity early on in the transitioning process, which can include going through a social and legal name change, wearing clothes that align with their gender identity and the like.

Thus, by the time they come to an attorney seeking help with a gender marker change, much of their social transition to another gender is already complete, which can create a dichotomy between their name and their gender marker, Matters said. But in order to resolve that dichotomy, a person who is transitioning must be able to present a statement from their doctor indicating they have done something “irreversible” to change their gender. By today’s standard, hormone therapy is considered an “irreversible” step, Matters said.

With irreversibility established, the process of changing a person’s gender marker mirrors that of a name change, Matters said. However, because court documents will indicate the person wants to reopen their name-change order for a correction, the explanations in the official legal documents will be slightly different than those for a standard name-change procedure, she said.

The key to a successful gender marker change is the fact that courts have the ability to correct their name-change orders, Matters said, so judges retain an “inherent authority” to reopen such an order and make a gender marker correction. Further, Matters said when she is dealing with a gender marker case, she reminds the judge that courts and members of society have an interest in the accuracy of documents such as birth certificates.

But while this process may be successful for a transgender person now, Matters also told the solo and small firm practitioners that possible federal legislation could bring significant changes to the gender marker amendment process. She pointed specifically to House Bill 1361 which, if passed, would restrict the process of changing a gender marker to only those situations in which a mistake had been made.

After Matters’ presentation concluded, Indianapolis attorney Victor Indiano then led a short CLE on how to avoid copyright infringement in a digital age. Such information is helpful not only for clients facing infringement litigation, Indiano said, but also for attorneys who want to use images and other content from the internet to build their firm websites.

One of the most basic principles of copyright law to understand is how long a copyright can last, Indiano said. For original published works created by an individual today, copyright on an image, piece of literature or other creative work lasts for the life of the creator, plus 70 additional years. However, some works are not protected by copyright at all, such as works created by an employee of the federal government in the course of their official duties.

The concept of “fair use” can also help attorneys determine when a work is protected by copyright or when it can be used by the public, though Indiano conceded the fair use doctrine is often unclear and confusing. Fair use is governed by four principles designed to help media consumers determine if a creative work is available:
•    The purpose and character of the use;
•    The nature of the copyrighted work;
•    The amount of the portions taken; and
•    The effect on the potential market.

When determining if a work is fair use, each of those principles must be analyzed together to determine if the value of the work will be lost by opening it up to widespread use, he said.

In addition to fair use permissions, Indiano said some creators may include disclaimers with their works that allow the work to be used by the public for certain, often non-commercial purposes, such as educational purposes. Conversely, a creator might ask a person to purchase a license to use their work, or might threaten to impose a fine if the work is used without a license.

However, in those situations, what the creator is often seeking is recognition for their creative work, Indiano said. To that end, simply giving attribution to the work’s original creator could help reduce any monetary costs associated with using a copyrighted work.