• Domesticate your business within the State of Tennessee. This process occurs when an out of state limited liability company registers as a ”foreign” business entity within the State of Tennessee. This can be a relatively simple process that only requires business owners to obtain a Certificate of Good Standing from their current state and subsequently file a registration form in Tennessee. Oftentimes, business owners do not prefer this option because it means that the limited liability company remains a company of the former state. For example, a California Limited Liability Company would remain a California Limited Liability company, only it would then be properly registered to conduct business in Tennessee. However, registering as a foreign business entity within the State of Tennessee means the company can still be subjected to administrative fees associated with business entities, taxation,^[ii] and potential litigation in its former state.
• Register a new limited liability company in Tennessee. Business owners can easily incorporate a new Tennessee limited liability company and either keep their previous limited liability company active in their former state or choose to dissolve it.  Clients are often able to keep their same business name and dissolve their business operations in one state and resume their operations in Tennessee. Business owners tend to prefer this method because it allows them to formally become a Tennessee Limited liability company and not just an out of state company registered to conduct business in Tennessee. Once a party has decided to dissolve their former company and reincorporate a new LLC, they should also make sure that all previous assets, such as real estate, intellectual property, and bank accounts are properly updated to reflect the new business entity.

Who handles business filings in Tennessee?

The Tennessee Secretary of State’s Business Services Division is responsible for managing the filings and records of all businesses within the State of Tennessee. Most filings can be submitted online at the Tennessee Secretary of State’s website or in person at their location in downtown Nashville. Business owners should also know that relocating your business to Tennessee and failing to properly register your business as a foreign business entity may result in fines and penalties assessed by the Secretary of State’s office.

There are pros and cons that every business owner should consider discussing with a lawyer and/or tax professional when relocating a business to the State of Tennessee. Relocating business operations is an important issue for small and large business owners alike, and it is essential that they properly assess their options.

If you are interested in relocating your business to the State of Tennessee, one of Cole Law Group’s business attorneys would be happy to assist you. Just give us a call at 615-490-6020 or send a contact message via our website. Our office is centrally located at 1648 Westgate Circle, Suite 301, in Brentwood.

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¹ https://sos.tn.gov/press-releases/tennessee-marks-10-years-of-new-business-growth

² This is not tax advice. Please contact a tax professional for any advice related to tax.

With over 1,600 home-based businesses operating in the city of Nashville, Tennessee, could it be true that many of them are illegal?¹ Section 17.16.250 of Title 17 of the Metropolitan Code of Laws that governs residential zoning ordinances contains a provision regarding “home occupations”.² The term home occupations refers to the practice of individuals operating small businesses from their residential homes. The provision prohibits the home occupations, or home businesses, from performing services for customers on their residential property. For many home businesses, customers and customer interaction are the sole source of profit. In “Music City,” a community full of artists, musicians, and other creative professionals, this ordinance presents several problems for those wanting to teach music and art or even to create music and art with other professionals in the industry.  

This exact zoning ordinance presented an issue for a local Nashville music producer, Lij Shaw. Since 2015, Mr. Shaw has been in a battle with the City of Nashville to shut down the prosperous music studio located in his residential home. Mr. Shaw first received a letter from the city demanding his home music studio be closed and no longer open for business. Two years later, Mr. Shaw partnered with Pat Raynor, an individual running a hair salon out of her home and protested the residential zoning ordinance in court. The legal battle between Mr. Shaw and the City of Nashville was recently heard by the Supreme Court of Tennessee. The decision of the Supreme Court of Tennessee will not be released for several months.  

Can Owners Conduct Business From Their Home During Covid-19?  

As the COVID-19 pandemic persisted, the Nashville Metropolitan community was afforded the opportunity to operate small businesses from their residential homes, with a newly added benefit. On July 7, 2020, Nashville Metro Council approved the Home Occupation Modernization Bill (bl2019-48) in order to allow small business owners to continue to profit from their businesses in the safety and security of their own homes. This ordinance additionally allows business owners in Davidson County, for the very first time in the county’s history, to engage with customers in the business owner’s home legally. However, the Bill contains several restrictions as follows: a restriction that no more than five employees may reside within the dwelling at a home occupation location;  a restriction that no more than one part-time or full-time employee not living within the dwelling may work at the home business; that there can be a maximum of six visits by customers per day; and no more than three customer trips per hour are allowed at the site of the home business.  

Why Should Nashville Small Business Owners Care? 

In the current COVID-19 landscape, the opportunity to run a business out of your home and be able to serve customers at that business is highly valuable. Businesses based in a residential home afford individuals with an easily attainable avenue to entrepreneurship. It also presents small business owners with a much more cost-effective way to conduct business, avoiding the expenditure of renting or purchasing a commercial space. Reducing the cost to start up a business can be a great asset to the longevity of the business and help reduce the risks associated with starting a business.  

The Home Occupation Modernization Bill is set to expire in January of 2023. Upon expiration, it will again be illegal for home businesses to serve customers on site in a residential home. However, with the help of Mr. Shaw, Mrs. Raynor, and other like-minded individuals, the residential zoning ordinance prohibiting customers to enter and to be served by home businesses may no longer exist.  

If you are thinking about starting a business, we can help. Just call an Entrepreneurial Business Attorney at Cole Law Group in Brentwood (615-490-6020) and we will be happy to speak with you about your new business venture.  

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1 https://ij.org/report/finding-american-dream-home; see also http://www.tnledger.com/editorial/article.aspx?id=52959. 

2 Metro. Code § 17.16.250(D)(1).

At the outset, some of the most significant changes brought about by the new law concern restrictions on the ability of government and private businesses to require individuals to provide proof of having received a COVID-19 vaccination. Specifically, the new law states that “[a] private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”¹ Importantly, the new law contains a broad definition of “private business,” and includes individuals, sole proprietorships, corporations, limited liability companies, partnerships, trusts, associations, and non-profit entities.² In addition, the new law contains a broad definition of “adverse action,” and includes discrimination “against a person by denying the person employment, privileges, credit, insurance, access, products, services, or other benefits.”³ As a result, under the new law, most private businesses and governmental entities in Tennessee are prohibited from requiring any individual from providing proof of vaccination in the event the person objects to receiving a COVID-19 vaccine for any reason, and this prohibition is applicable to employees, customers, or just about any individual who accesses products or services of a private business or covered governmental entity. 

Nevertheless, the new law does contain several important exceptions to the general prohibition of requiring proof of having received a COVID-19 vaccination. The new law does not prevent the implementation of COVID-19 vaccine mandates for Medicare and Medicaid providers, or assisted-care living facilities, federal government contractors or subcontractors, schools, or employers that submit notice in writing to the comptroller of the treasury that compliance with the new law would result in a loss of federal funding.⁴ Moreover, the new law does not prohibit “a place of entertainment” in Tennessee from requiring proof of a negative COVID-19 test in order to gain admission, or to allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies in lieu of presenting a negative COVID-19 test in order to gain admission to a “place of entertainment.”⁵ 

The new law also addresses the implementation of mask mandates throughout much of Tennessee. Under the new law, with certain exceptions, governmental entities are no longer permitted to “require a person to wear a face covering as a condition to access the governmental entity’s premises or facilities, or to receive the benefits of the governmental entity’s products or services, unless severe conditions exist and the requirement is in effect for no more than fourteen (14) days.”⁶ The new law further defines “severe conditions” to mean that: (1) the Governor of Tennessee has declared a state of emergency for COVID-19; and (2) a county has an average rolling fourteen-day COVID-19 infection rate of at least 1,000 new known cases of COVID-19 for every 100,000 residents of the county based on the most recent data published by the department of health.⁷ When “severe conditions” do not exist, many governmental entities are also prohibited from requiring employees from wearing a face covering as a term or condition of employment, or from taking an adverse action against an employee for failing to wear a face covering.⁸ 

In order for a school to implement a mask mandate under the new law, “severe conditions” must exist, the school’s governing body must adopt a policy requiring all persons on school property to wear a face covering, and the school must provide face coverings meeting the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration for persons 12 years of age and older.⁹ Even if these requirements are met, the new law does not permit schools to require a person to wear a face covering if the person provides documentation from the person’s healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person’s sincerely held religious belief.¹⁰ As with the implementation of COVID-19 vaccine mandates under the new law, there are several exceptions to the prohibitions on the implementation of mask mandates set forth in this article, including for Medicare or Medicaid certified providers, entities operating on property owned, managed, or secured by the federal government, and healthcare providers.¹¹ Also, and very importantly, the new law does not prohibit private employers or businesses from requiring face coverings for employees, customers, or any other members of the public receiving services. 

Beyond significantly curtailing the ability of many government entities and private businesses from implementing COVID-19 vaccine and other similar mandates, the new law makes several other noteworthy changes to Tennessee law. The new law permits certain individuals to receive unemployment retroactively if they left employment because of a failure or refusal to receive a COVID-19 vaccine when it was previously required by their employer.¹² Furthermore, except in certain cases of minors subjected to abuse or dependent and neglected children, the law restricts the ability of healthcare providers to administer a COVID-19 vaccine to a minor without first obtaining written consent from the minor patient’s parent or legal guardian.¹³ Moreover, the law limits civil liability for deaths “arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.”¹⁴ 

Importantly, the new law also contains an enforcement mechanism in the event of violations. Specifically, the new law creates a private right of action for injunctive relief, compensatory damages, and reasonable attorneys’ fees for any aggrieved person against an alleged violator.¹⁵ By its own terms, the new law terminates on July 1, 2023.¹⁶ 

The precise contours or Tennessee’s new COVID-19 law have yet to be fully litigated in the courts, and there are still several areas of uncertainty regarding the new law’s enforceability and constitutionality. Nevertheless, there can be little doubt that Tennessee’s new COVID-19 law has already had a profound impact on Tennessee’s response to the COVID-19 pandemic, and the new law’s effects will likely continue to be felt by private businesses, employers, employees, government entities, and many more until at least July 1, 2023. 

If you think Tennessee’s new COVID-19 law may impact you or a loved one, you should seek the legal advice of a knowledgeable attorney immediately. During these uncertain times, it is extremely important to seek the assistance of a legal professional to learn your legal rights and obligations as Tennessee continues to navigate through the COVID-19 pandemic. Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about how Tennessee’s new COVID-19 law may impact you. 

ABOUT THE AUTHOR: Andy Goldstein 

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well. 

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author. 

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¹ Tenn. Code Ann. § 14-2-102(a).

² Tenn. Code Ann. § 14-1-101(15). Notably, the new law does not define a “private business” to include schools, Medicare or Medicaid certified providers, certain healthcare providers enrolled in Medicare or Medicaid, or certain assisted-care living facilities.

³ Tenn. Code Ann. § 14-1-101(1)(A). Moreover, the definition of “adverse action” in the new law also means to “discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.”

⁴ Tenn. Code Ann. § 14-6-102.

⁵ Tenn. Code Ann. § 14-2-102(b).

⁶ Tenn. Code Ann. § 14-2-103(a)(1).

⁷ Tenn. Code Ann. § 14-1-101(20).

⁸ Tenn. Code Ann. § 14-2-103(a)(2).

⁹ Tenn. Code Ann. § 14-2-104.

¹⁰ Tenn. Code Ann. § 14-2-104(c).

¹¹ Tenn. Code Ann. § 14-1-101(8).

¹² Tenn. Code Ann. § 14-3-101.

¹³ Tenn. Code Ann. § 14-4-103(a)-(b).

¹⁴ Tenn. Code Ann. § 14-5-101.

¹⁵ Tenn. Code Ann. § 14-6-103.

¹⁶ Tenn. Code Ann. § 14-6-104.

Figuring out how to adequately protect your intellectual property can be a daunting process. The best place to start is to understand the three major types of intellectual property protection. Read on to learn whether these forms of legal protection may be right for your invention.

1. Patents

If you have come up with a new invention, you may want to consider protecting it with a patent. A patent is a set of rights granted to an inventor in exchange for publicly detailing their product or idea in a patent application.

There is a certain set of standards that an invention must meet before it can be patented. In order to obtain a patent, your invention must be:

• New
• Original
• Not obvious to someone who has experience in the invention’s field

Historically, inventors have obtained patents for physical inventions like machines or consumer goods. In recent years, patents have also been granted for abstract intellectual property such as business procedures or computer algorithms.

2. Trademarks

Let’s say that you have come up with a great new name for your brand, company or product. Before another company uses that name as well, you can protect it with a trademark. Be warned that trademarks often have a limited range of protection. They can typically only protect a name within a certain field. So if your tech startup trademarks a name for a product, a food company may also be able to use that name without infringing on your trademark.

3. Copyrights

If you are a creative type, perhaps you have written a blog post, designed a web page or recorded a commercial jingle. When your intellectual property is in one of these forms, it may be protected by a copyright. A copyright means that you have the exclusive right to determine how your work is used, distributed and sold. The best part about copyright law is that when you write or record something, it is generally protected by copyright law immediately unless you opt out by making it public domain.

The founder of a startup must act not only as the business owner, but as an innovator. Not everyone can have this talent. So how can you tell whether you have what it takes? Read on to see whether entrepreneurship is right for you.

You’re a self-starter

You will be the leader in charge of forming your business. A skilled entrepreneur can handle development, organization, management and more.

You have good people skills

Negotiations and networking are crucial skills for any entrepreneur. Your ability to get along with many different kinds of people can make or break your ability to advocate for your business.

You are decisive

Sometimes an entrepreneur must make decisions with little notice and little time to think. You must be confident in making decisions on the fly for your company.

You have the drive to run a company

There will be no supervisors to oversee your work. There will be no managers to motivate you. There will only be your personal drive to run a business, but your drive could bring you one step closer to success.

You love to plan and organize

Many businesses flop because of poor planning and organization. An entrepreneur must have the planning and organizational skills to keep a company running smoothly.

You can balance business and personal

Running a business can take a serious toll on your personal life, particularly in the early stages of getting it off the ground. If you have a family, you must frequently prioritize between managing the business and spending time at home. Most entrepreneurs must be able to find a balance between business and pleasure.

Introduction

A current dispute in copyright law for which public policy does not offer a simple solution is: who should be responsible for finding copyright infringing material on the Internet and enforcing the DMCA takedown provisions? This question is one of incentives, deterrence, and safe harbors as the DMCA has been written by Congress and interpreted by courts. The Copyright Office was recently accepting public comments on Section 512 of the Copyright Act which is likely what spurred T Bone’s recent remarks. T Bone’s remarks show that many individuals such as musicians and other creators of copyrightable content are not satisfied with the current system. T Bone wants changes in the statute to put more of the onus on internet service providers such as Google, YouTube, Facebook, and other providers of online user uploaded content. He believes that the current system of internet service monopolies acting within the safe harbor of the DMCA allows companies like Google to pay artificially low royalty fees to artists. The current system incentivizes copyright owners to patrol the Internet in a perpetual game of whack-a-mole to find infringing works, then notify the internet service of the infringing content through a takedown notice.

The statutory authority for the safe harbor of internet takedown of copyright infringing works is found in 17 USC § 512: Limitations on liability relating to material online. Subsection (c) discusses information residing on systems or networks at direction of users. That section sets up the rule that internet service providers shall not be liable for infringing material unless they have actual knowledge of the infringing work or do not act expeditiously to remove infringing content reported to them.

An Example Federal Court Case

Courts have interpreted this statute to require actual or “red flag” knowledge of specific instances of infringement; some have found the common law willful blindness doctrine applies. An excellent example of a court’s decision based on the statutory language of §512 is found in the Second Circuit’s 2012 Viacom case. Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 25-38 (2d Cir. 2012). In Viacom, the Second Circuit affirmed that actual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement will disqualify a service provider from the safe harbor.Id. at 32. The court discussed in further detail that as §512 does not mention willful blindness, the court presumes that this common law doctrine still applies as there is no evidence that the statue has abrogated it. Id. at 35. Therefore, it remanded the willful blindness issue to the District Court. Id.

A Comment Advocating for Change

A comment submitted to the U.S. Copyright Office in the matter of §512 by Jenner & Block attorneys Kenneth Doroshow and Scott Wilkens on February 21, 2017, reads similar to a Supreme Court amicus brief with several proposed changes to §512 that the Copyright Office should recommend to Congress according to the comment. Joint Supplemental Comments in the matter of Section 512 http://src.bna.com/mnc (accessed on February 25, 2017). One proposed solution is to revise the language of §512 to impose a duty on large internet providers of user uploaded content to use effective technology to monitor and find infringing works or review before uploading. Id. They argue persuasively that the United States should follow the European Union example by creating this duty similar to what has been proposed in: European Commission, Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market, Sept. 14, 2016, at 20 https://ec.europa.eu/digital-single-market/en/news/proposal-directive-european-parliament-and-council-copyright-digital-single-market. Another proposed solution is to eliminate or clarify the “red flag” knowledge provision of §512. Joint Supplemental Comments in the matter of Section 512 http://src.bna.com/mnc (accessed on February 25, 2017). Congress could choose to apply the common-law standard for vicarious liability in this area. Id. One other possible solution they offer is to require that, once a service provider receives a takedown notice with respect to a given work, the service provider use automated content identification technology to prevent the same work from being uploaded in the future. Id.

Arguments for the Status Quo

On the other side of the issue, companies like Google and Facebook have a vested interest in maintaining the current language of §512 that effectively has limited their liability for user postings of copyright infringing works. They would likely agree with the theory that they are not involved in any volitional conduct when a user uploads an infringing work and imposing a legal liability on them to review the work before posting raises Constitutional problems of censorship under the 1st Amendment. They already pay some royalties to copyright owners for some uses of content and §512 strikes the appropriate balance in deterring copyright infringement and allowing networks of users to upload content and continue to be profitable. Revising the statute to impose an affirmative duty on technology companies could increase their operating costs and lead to lower profitability which may hurt their stock value and stunt the growth of technology companies.

Conclusion

My opinion is premised on the belief that the technology already exists for large companies such as Google and Facebook to review user content at the time of posting to check for copyright violations. Congress could reasonably impose a duty on them to use this technology or else be liable for user posted copyright infringement. I would prefer to see the language of §512 revised to allow a more limited safe harbor by imposing a limited duty to monitor on all internet services with over 1,000,000 users. I would not want this requirement to overly burden small businesses that could not afford the technology. Companies like Google and Facebook already possess this technology and currently use it sporadically. Requiring more from them would, in my opinion, better align the copyright incentives to reward copyright creators in the digital age. It would also eliminate copyright holders from wasting time and money engaging in whack-a-mole take- down notices. I do not think the best public policy counsels in favor of leaving the status quo in place as to §512.