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Hi - Is part of that use that you expect, that the client will send copies of the report, in full or in part, to the other brokers in the transaction and the seller?
Not sure if I understand you correctly. I'll try.
That report was bought and paid for by the client.
What he/she does with it is their choice.
When I put a statement in the contract/report stating something to the effect ' report has been prepared for so-and-so _______ . and is intended for their use only. This report is not designed as a tool for negotiating of price or any purpose other than to give an overall condition of property. Cosmetic conditions will not be reported. ect. ect. you all seen em'.
I have no control over what the client does with the report after I leave and it isn't mt business.
And it wouldn't have gone on past a couple of posts if everyone didn't try to turn into an expert and spout out all kinds of reckless, misleading and wrong information.
Your posts continue an indication that you pontificate on a subject about which you know little. A few truths about copyright in this area.
The inspector give a license to the buyer of the service for the normal usage made of an Inspection Report. If not written down in the contract normal customer usage would prevail and in general the buyer would be free to use the report as he sees fit with respect to that transaction.
The four fold test for fair use includes local customs and normal procedures as to whether a given usage is fair.
Under any circumstance or interpretation of the copyright law a buyer owns the inspection Report and has every right to sell it. Just as you would a painting or a book. It is yours and the copyright holder has no control over your usage of it. If you failed to sell the Inspection Report to a new buyer you simply waster the sum involved.
In general copyright law does not deal with facts or ideas. It deals with the specific expression not the facts. However there is also a well known problem...
***************************
Although it is rare, there are times when the idea and the expression of the idea are so intertwined with one another that there is only one way or very few ways to express the idea. When the idea and expression of the idea merge like this the expression of the idea is not copyrightable. This is what is commonly referred to as the merger doctrine.
***************************COPYRIGHT BASICS - copyrightalliance
And this then leads to the problem that the Inspector is somewhat of a licensed expert and you cannot change his writings on a fact without running into difficulties if you are not a licensed expert on the field.
So basically you purchase a license when you purchase an Inspection Report and you need to use the exact language for any use you make of it.
there do not appear to be any court cases where a use of an Inspection Report was found a copyright violation. There is a case of an Appraiser pursuing one but that was against another Appraiser borrowing stuff. So there is no case law supporting the JB view.
So basically JB is pontificating for the hell of it with no real case.
Can you post contract verbiage you use to control further dissemination of a report?
The inspector owns the copyright of the report the moment he produces it, whether or not "copyright" is mentioned or marked. However, if he wants vigorous enforcement of the copyright, he must register it with the copyright office within 30 months (not 90 days--three calendar months) of first publishing ("publishing" being when he provides it to the client).
If he does not register the copyright, any suit he files for copyright infringement will be limited to actual provable damages/losses, if he wins.
If he has registered it, he is eligible for substantial statutory awards, if he wins. Generally speaking, a lawyer is not going to advise going forward with the case if it's not registered because the award would not be worthwhile.
Registering is not difficult. It can be done online, and literally hundreds of reports could be registered on one $55 application. I personally batch register my work every three months, which takes advantage of the "three months after publishing" clause.
Now, even if the work is registered, the case must still prove that the infringement was not "fair use." The best strategies to get a fair use judgment:
1. Only forward the relevant part of the report, never the entire report.
2. Make sure to provide additional commentary about the report, which would normally be the case--you'd explain what the report means for whatever purpose you're using it.
3. Make sure there is no financial compensation to you or anyone else dependent on the use of the report.
If you've done those three things, that would actually be "fair use" as the law permits.
Can you post contract verbiage you use to control further dissemination of a report?
If the report meets the minimum criteria for copyright (generally inspection reports do), it's under copyright protection as soon as movedintime creates it. It does not even need a notice, nor does it need to be registered anywhere. That's a fact. Look it up.
So your underlying assumptions of how this works are very flawed. You're showing that you're way out of your depth. You were talking about inspectors claiming 'false copyrights' and that makes absolutely no sense. They own the copyright unless they've sold it to someone else. No 'false' about it.
I think movedintime is simply saying that he expects other professionals to respect his contracts, restrictions and notices. Period. That's aligned with my original comments which I never thought would be so controversial. Your bold disregard that you've shown here is staggering and offensive to other real estate professionals. I go back to my earlier post about how you would feel if someone completely disregarded your buyers agent agreement, called it false, only for money making, and useless anyway.
I thought the topic was 'Home Inspector commentary on report'.
As far as this copyright stuff goes, My reports are for the clients eyes only. If anybody else decides to use that report for any reason they are opening themselves up to liabilities which they have no defense.
Be careful......
If you want to find a good home inspector, 1st read his disclosures. You might not like what you read in the disclosure, but you can pretty much sum up his ethics and abilities.
So you're saying you don't expect or allow the person paying, normally the buyer, to share the report with the agents or the seller?
If it's a seller getting a pre-listing you don't allow them to share with potential buyers?
The inspector owns the copyright of the report the moment he produces it, whether or not "copyright" is mentioned or marked. However, if he wants vigorous enforcement of the copyright, he must register it with the copyright office within 30 months (not 90 days--three calendar months) of first publishing ("publishing" being when he provides it to the client).
If he does not register the copyright, any suit he files for copyright infringement will be limited to actual provable damages/losses, if he wins.
If he has registered it, he is eligible for substantial statutory awards, if he wins. Generally speaking, a lawyer is not going to advise going forward with the case if it's not registered because the award would not be worthwhile.
Registering is not difficult. It can be done online, and literally hundreds of reports could be registered on one $55 application. I personally batch register my work every three months, which takes advantage of the "three months after publishing" clause.
Now, even if the work is registered, the case must still prove that the infringement was not "fair use." The best strategies to get a fair use judgment:
1. Only forward the relevant part of the report, never the entire report.
2. Make sure to provide additional commentary about the report, which would normally be the case--you'd explain what the report means for whatever purpose you're using it.
3. Make sure there is no financial compensation to you or anyone else dependent on the use of the report.
If you've done those three things, that would actually be "fair use" as the law permits.
Thank you for the information. If the client has hired the inspector for sole purpose of an inspection and paid for the production of the report can they share it IF they are not reproducing it for profit?
*I've never noticed such language on an inspection or heard of an inspector making a stink about sharing. I think the whole conversation is pointless in the grand scheme.
Inspection reports are seldom reused by other Buyers. They could be passed on if applicable to other parties like the Seller. We might share an old Inspection with a new BUyer if they requests to see it.
As a matter of fact our Texas Sellers Disclosure ask if Seller has any Inspections Reports within the last 4 years. If so they are to attach them to the disclosure. The State of Texas has created that Disclosure and request for the old Inspection Report. This does not stop the Buyer from getting a new Inspection and would be encouraged.
The other parties (Like the seller or Buyer 2 years down the road) would have no claim to Liability by the Inspector if he missed an item. In TX, A Survey is commonly reused. There can be no Liability claim by a 2nd party if the Surveyor did not do the Survey for that person.
You really have no idea what you're talking about but great at jumping to conclusions.
Correct me if i'm wrong but the TREC form is the official state form. TREC is the state agency not TAR. The TREC form does not require inclusion of inspection reports nor does it even ask about them. The TAR form does but that was not created by the state of texas as you indicated. I'm probably wrong as you're an agent from TX and should know this but let me know if it's me that's wrong.
But thanks for raising that the TAR form does require this. It's interesting and potentially creates a problem and an inconsistency with copyright laws and ownership rights for report authors. Sloppiness never surprises me in this industry. My personal opinion is that this must cause at least some people to unwisely try to save money and not get a new inspection (no matter that the form warns them).
So you're saying you don't expect or allow the person paying, normally the buyer, to share the report with the agents or the seller?
If it's a seller getting a pre-listing you don't allow them to share with potential buyers?
No. I am not saying that at all.
I inspect and prepare a report for my client. (usually the buyer). Sometimes the seller, sometimes someone who purchased a new home and was given a 1 year warranty by the builder. The new owner may choose to have the home inspected before his warranty expires.
In any case, My report that the client has paid for is theirs.
My liabilities are released the moment my client shares it with anyone.
Doesn't matter if I allow it are not. It is theirs.
All liabilities are now on the person sharing any and all info. included on the report. That would include the client, the agent, the neighbor, as in ANYbody.
Can you post contract verbiage you use to control further dissemination of a report?
Didn’t ask directly, but here’s what I use.
Quote:
Originally Posted by pre inspection agreement
The Inspection and report are performed and prepared for the sole and exclusive use and possession of the Client. No other person or entity may rely on the report issued pursuant to this Agreement. In the event that any person, not a party to this Agreement, makes any claim against Inspector, its employees or agents, arising out of the services performed by Inspector under this Agreement, the Client agrees to indemnify, defend, and hold harmless Inspector from any and all damages, expenses, costs, and attorney fees arising from such a claim. If client requests such, in writing, copies of this report will be made available to their representatives, agents or attorneys.
Would it hold up? Who knows as I’m not sure one of these clauses has even been tested, but hopefully thanks to the recent Tennessee court decision you posted (which I don’t think was about a clause of this nature directly), it won’t matter.
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Is part of that use that you expect, that the client will send copies of the report, in full or in part, to the other brokers in the transaction and the seller?
