Using Real Estate Transaction Forms From Staples? (lawsuit, lawyer, very expensive)

[Captain Bill]

Originally Posted by marksmu

I am an attorney, but I work primarily in contracts, real estate, and Labor Law....I have done only some intellectual property law, and all of that is in patents, not copyrights...

...Im not saying with authority I am correct, but I am saying if someone were to retain me after being sued for using the form (an ultra petty act of a real estate association strong arming people into using their clients), I would put the time in to come to a concise opinion. The forms themselves may fail simply based on the fact that the Texas Association of Realtors utilized too much of the statutes to be considered an independent creation. Its issues like that the need to be litigated....just having an association say that the form is copyrighted and I cant use it - does NOT mean that it is true....It just puts you on notice.

I have taken the liberty to bold "not copyrights" and "I'm not saying with authority I am correct", in your post, in order to emphasize the fact that you are saying that you are not conversant in copyrights, and that you are not saying that you are correct in your statement.

Therefore, what it appears you are doing is just making an uneducated statement that it is ok to use a copyrighted contract.

This is Arizona, not Texas, and the AAR contract was developed by the AAR along with the AAR General Counsel, Michelle Lind, ESQ, and many other people. They did not copy any statute language in this contract. All the language is original, but in conformance with the statutes.

You state that you are not saying with authority that you are correct. I interpret that as you don't know. Since you don't know, then why are you saying that it is ok for people to violate the copyright laws.

Maybe this would explain it:

by Marksmu"....if someone were to retain me after being sued for using the form (an ultra petty act of a real estate association strong arming people into using their clients), I would put the time in to come to a concise opinion...

I bolded "after being sued" for emphasis. That's a little late for providing advice to protect someone from a law suit isn't it?

You're implying in your posts that it's ok to use copyright material. Yet, by your own admission you are not familiar with copyright laws, and you do not know if it is ok.

However, if after someone is sued they come to you, then for a fee you will put in the time to come to a concise opinion!!!

Realtors are not clients of the Association. We are members of the association, and it is our money paid in the form of dues that support the association and fund the work that goes into the drafting of these contracts as well as providing the MLS.

The AAR has an obligation to protect their members. If one wants to use an AAR contract, they can join and pay dues like the rest of us, or hire a Realtor, or hire an attorney to draft one for them. And while Realtors do a lot of work for free, we are much like attorneys in that we do like to be paid for our work, and we do expect to protect our copyrights.

You can call protecting copyrights bullying if you like. I call violating copyrights stealing. And we have copyright laws to prevent and punish people from stealing copyrights.

If you really want to be helpful to readers of this forum, then why not put in the time now to come to a concise opinion, instead of telling people that it's ok, when you have admitted that you do not know that it's ok.

[Captain Bill]

Originally Posted by marksmu

Podunk, was not intended to be derogatory - rather it is just my reference to a low level court that made the decision....

I'm sure the judges in these low level courts would appreciate your reference to them as "Podunk".

[marksmu]

First off - hello inferiority complex...looks like I hit a personal nerve....

Originally Posted by Captain Bill

I have taken the liberty to bold "not copyrights" and "I'm not saying with authority I am correct", in your post, in order to emphasize the fact that you are saying that you are not conversant in copyrights, and that you are not saying that you are correct in your statement.

Therefore, what it appears you are doing is just making an uneducated statement that it is ok to use a copyrighted contract.

An uneducated statement is one made without any background in facts. I did in fact take a course on Copyrights, which by definition makes me educated on the subject...just not proficient and ready to come to a legal conclusion without having reviewed the document - something I am not just going to do for fun as that entails hours upon hours of actual work.

Originally Posted by Captain Bill

This is Arizona, not Texas, and the AAR contract was developed by the AAR along with the AAR General Counsel, Michelle Lind, ESQ, and many other people. They did not copy any statute language in this contract. All the language is original, but in conformance with the statutes.

Ya, Ya, Ya, Texas forms say the same things...its all BS...I have not reviewed the Arizona form, but I can almost guarantee that the wording is SUBSTANTIALLY SIMILAR to the statute - something that WILL remove the ability for a copyright to be upheld when challenged.

Originally Posted by Captain Bill

You state that you are not saying with authority that you are correct. I interpret that as you don't know. Since you don't know, then why are you saying that it is ok for people to violate the copyright laws.

That is me saying I have not reviewed the particular form in question and I make no opinion as to whether or not it really is a valid copyright. The copyright office does not even do a cursory review. They grant copyrights when you pay a fee....if someone objects they can file a suit to declare the copyright invalid. It happens all the time. Just getting a copyright does not mean that there is any real protection. It means nothing more than it is presumed valid until challenged.

I merely said I am VERY skeptical about the ability of a purchase contract to have a valid AND enforceable copyright.

Originally Posted by Captain Bill

Maybe this would explain it:

I bolded "after being sued" for emphasis. That's a little late for providing advice to protect someone from a law suit isn't it?

You're implying in your posts that it's ok to use copyright material. Yet, by your own admission you are not familiar with copyright laws, and you do not know if it is ok.

However, if after someone is sued they come to you, then for a fee you will put in the time to come to a concise opinion!!!

If someone wanted to use a form, I would look at the form and make an educated decision based on the particular form whether or not the copyright could be enforced. I do not go through the internet looking for copyrighted forms and analyzing each one...that would be ridiculous. I can make an opinion, even an educated opinion on a form not be enforceable without having to read it. By default most forms are non-enforceable.

Originally Posted by Captain Bill

Realtors are not clients of the Association. We are members of the association, and it is our money paid in the form of dues that support the association and fund the work that goes into the drafting of these contracts as well as providing the MLS.

The AAR has an obligation to protect their members. If one wants to use an AAR contract, they can join and pay dues like the rest of us, or hire a Realtor, or hire an attorney to draft one for them. And while Realtors do a lot of work for free, we are much like attorneys in that we do like to be paid for our work, and we do expect to protect our copyrights.

You can call protecting copyrights bullying if you like. I call violating copyrights stealing. And we have copyright laws to prevent and punish people from stealing copyrights.

If you really want to be helpful to readers of this forum, then why not put in the time now to come to a concise opinion, instead of telling people that it's ok, when you have admitted that you do not know that it's ok.

I never said it was OK - I said I was highly skeptical that a valid copyright existed. You need to hone your reading comprehension skills a bit before you run around over-reacting. I logged in and paid to access my westlaw subscription to search for ANY copyright lawsuit alleging a copyright violation based on a non-members use of a form. Guess how many opinions there are? Zero. None. Not a single one. That was searching both state and federal courts, Including Arizona.

If these forms were so precious and highly copyrightable material, I would expect a lawsuit somewhere on their use b/c lay people use them every single day of the year....Yet, strangely there are no suits.

In conclusion - I still form no opinion on whether or not the Arizona form is a copyrighted form that is enforceable. I would have to review it, which is something I am not going to waste time doing. But I can say that no person that I found has been successfully found liable for use of a real estate form....at least not that I can find by searching both federal and state filings. So the previous poster who said the copyright was recently upheld in Arizona needs to post a source for that claim.

[Greatday]

Originally Posted by marksmu

Ya, Ya, Ya, Texas forms say the same things...its all BS...I have not reviewed the Arizona form, but I can almost guarantee that the wording is SUBSTANTIALLY SIMILAR to the statute - something that WILL remove the ability for a copyright to be upheld when challenged.

And I can guarantee that the Arizona form is NOT similar to the Texas form. I have seen and read both.

[marksmu]

Originally Posted by Greatday

And I can guarantee that the Arizona form is NOT similar to the Texas form. I have seen and read both.

Nobody said similar to the Texas form...what matters is whether or not the Arizona form is substantially similar to the statutes such that the Arizona form is not actually an original work at all.

[Rakin]

Our TX forms are available as downloads to the public.

TREC - Contract Forms, Addenda, Notices

They are created by Attorney's, the Public and RE Professionals for the state mainly for RE agent use but not exclusively.

[Greatday]

Originally Posted by marksmu

Nobody said similar to the Texas form...what matters is whether or not the Arizona form is substantially similar to the statutes such that the Arizona form is not actually an original work at all.

Again, inasmuch as you have not read the Arizona form (and I presume ARS) you are not in any position to make a determination if the form is similar to statute or not.

I can attest from personal experience with the AZ form, from usage to creation, there is individual language that was not / is not, covered in ARS. Our form(s) are created by the users then reviewed for legal validity.

You say you are an attorney. I might suggest you contact the AAR legal counsel and I'm sure she will be more than happy to correct your misperceptions.

[marksmu]

Originally Posted by Greatday

Again, inasmuch as you have not read the Arizona form (and I presume ARS) you are not in any position to make a determination if the form is similar to statute or not.

I can attest from personal experience with the AZ form, from usage to creation, there is individual language that was not / is not, covered in ARS. Our form(s) are created by the users then reviewed for legal validity.

You say you are an attorney. I might suggest you contact the AAR legal counsel and I'm sure she will be more than happy to correct your misperceptions.

Why not just provide me a citation to prove your earlier assertion that it was recently upheld in court? I would think they would be proud of that as a warning to all us non-realtor peons who dare use a form intended for a realtor!

[Greatday]

Originally Posted by marksmu

Why not just provide me a citation to prove your earlier assertion that it was recently upheld in court? I would think they would be proud of that as a warning to all us non-realtor peons who dare use a form intended for a realtor!

I have provided you information where, as an attorney, you can get the information you desire. I have also provided you links to the Arizona form where you will find it totally different than what you are use too.

[Captain Bill]

You can dispense with the unprofessional insults; I'm not at all intimidated by them.

quote by Marksmu......
An uneducated statement is one made without any background in facts. I did in fact take a course on Copyrights, which by definition makes me educated on the subject...just not proficient and ready to come to a legal conclusion without having reviewed the document - something I am not just going to do for fun as that entails hours upon hours of actual work.

You state that you took a course on copyrights, and are educated on the subject, but admit that you are not proficient and not ready to come to a legal conclusion about a document.

However, you continue to make guesses like this:

Ya, Ya, Ya, Texas forms say the same things...its all BS...I have not reviewed the Arizona form, but I can almost guarantee that the wording is SUBSTANTIALLY SIMILAR to the statute - something that WILL remove the ability for a copyright to be upheld when challenged.

Here is the link to the Texas forms.

TREC - Contract Forms, Addenda, Notices

It appears from your statements that you were not aware that the Texas forms are public and that anyone can use them.

Notice Regarding Contract Forms As public records, the contract forms adopted by the Texas Real Estate Commission are available to any person.
However, TREC contract forms are intended for use only by licensed real estate brokers or salespersons who are trained in their correct use. Mistakes in the use of a form may result in financial loss or a contract which is unenforceable.

by Marksmu..... If someone wanted to use a form, I would look at the form and make an educated decision based on the particular form whether or not the copyright could be enforced..." " ...I can make an opinion, even an educated opinion on a form not be enforceable without having to read it...

Ok, here is a link to the AAR forms which are copyrighted and marked "SAMPLE", but they are legible.

AAR Forms and Related Materials

Since you have vehemently expressed your skepticism that the form is copyrightable, I would think readers on the forum contemplating using the copyrighted forms would love to have your opinion on this form.

by Marksmu......I never said it was OK - I said I was highly skeptical that a valid copyright existed. You need to hone your reading comprehension skills a bit before you run around over-reacting.

But you keep making these statements which give the impression that you're saying it's ok because you feel they are not enforceable.

Not once have you cautioned that the copyrights "may" be enforceable and that anyone choosing to use a copyrighted form is risking a very expensive law suit, and possibly paying damages and attorney fees.

U.S. Copyright Office - Copyright Law: Chapter 5

Various quotes by Markus....

... By default most forms are non-enforceable.

...I am VERY skeptical about the ability of a purchase contract to have a valid AND enforceable copyright.

...I am also HIGHLY skeptical of any form being granted copyright protection. By definition copyright does not cover "ideas and information themselves, only the form or manner in which they are expressed"

...I think a case could be made about copyrightability of forms, but I think a very strong fair use defense can be mounted. Even if some podunk court in Arizona upheld the copyright, it does not really matter until a court of appeals has addressed it, and the supreme court has either reviewed it, or denied cert.

...Just b/c the Arizona Association of Realtors says something is copyrighted and enforceable, does not make it so....lots of people print things just like that, that do not hold any legal water.

...Personally I think a very strong case can be made that a form and its contents and of themselves are not copyrightable..

Anyone contemplating using copyrighted documents should proceed with extreme caution because the costs of a law suit are too high.

If a document, form, photo, article, web site, etc., states that it is copyrighted, then before you choose to use it, you should consult with an attorney experienced in copyright matters and obtain a written opinion on whether it is legal to use it. With the written opinion that the copyright is unenforceable, stating that it is legal and permissible to use that form, if you are sued, you may have a case against the attorney for malpractice.

If you ignore the copyright laws and use copyrighted material, (even with an attorney's opinion - which may be wrong, because they are not all-knowing) then you may be sued. Whether you are successful or not, you will most likely end up spending more money on attorney fees than you would had you gotten the opinion in the first place.

Notice that Marksmu stated that if you come to him "after you have been sued", he will spend the time to do the research. That leads me to believe that he would not provide an opinion before you use the form; but if he did issue an opinion beforehand, he would probably caution you, in writing, that you "may" get sued, in order to cover his behind to help prevent a malpractice suit.

As my granddaddy used to say: After the horse is out of the barn it's too late to lock the door.