Appraiser Wins Copyright Suit
By Tim Vining, MAI
I have been in the appraisal business over 25 years and have held the MAI designation for 21 of those years. Over this time my work has been pirated again and again. It took me until 1996 to learn about protection that has existed since 1978. I encourage all real estate professionals to become knowledgeable on this topic. One of the best recommendations I can make is to go online to the U.S. Copyright Office and download the publication Copyright Basics.
“It is Further Ordered, Adjudged and Decreed that Defendants are permanently enjoined from initiating, copying, counterfeiting, or making unauthorized use of Plaintiff’s copyrighted Appraisal Reports, or engaging in any activity constituting an infringement of Plaintiff’s copyrights, or to assist, aid or abet any other person in copying or infringing Plaintiff’s copyrights.”
The above excerpt is from a judgment entered into the United States District Court Eastern District of Washington on Oct 3, 2005. This is the first case in the U.S. where a real estate appraiser was sued for copyright infringement. Most importantly it validated my very strong belief that appraisal reports have copyright protection. For me, copyright education was a long, time consuming journey. My goal is to shorten that journey for other professionals.
I have found my work in someone else’s appraisal reports many times. That work is often comparable sales, area data, and property descriptions. In the pre-FIRREA days, I had a lender tell me that he got a lot of mileage out of one of my appraisal reports as he made four loans based on the information in that one appraisal. Over time I wondered how I could protect my work. It seemed logical to investigate copyrighting.
I learned through my intellectual property attorney that since 1978 every appraisal report authored has copyright protection. Once an appraiser (AKA author) puts pen to paper he has copyright protection that endures for life plus 70 years. Since 1989, it is not necessary to put a copyright notice on work but it is good practice.
According to Jennifer Sides, Corporate Counsel for a la mode, inc., the intended user of an appraisal report receives a limited use license when he or she receives your work, unless there is an agreement otherwise. “The infringer is acting as though they have been assigned rights or that they have an unlimited license, when in fact they do not. Not that an appraiser would not consider it, but that is a decision left solely to the appraiser to decide. The recipient at no time owns the work, they simply have a license to use the work for an intended/limited use,” said Sides.
Protecting Your Business
Educating oneself about copyright is good business. Not only to protect your work product but also to avoid being an infringer. How often have you prepared an appraisal report and copied a map, commercial photograph or excerpts from a trade publication? Those works, just like an appraisal report, are protected whether they have a copyright notice in place or not. The question to ask is are you willing to bet up to $150,000 in statutory awards, attorney fees, anxiety and lost business?
The defendants in this case spent considerable sum of money in legal fees, a considerable amount of time away from work and undoubtedly experienced a great deal of anxiety. All of which was unnecessary. Perception and uniformed opinion about copyright cost the defendants plenty.
To help educate yourself go online to www.copyright.gov. Download the publication Copyright Basics. This publication was prepared by the copyright office and is an excellent overview of copyright law. We are in the process of developing a seminar on Copyright for Professionals and will have it available soon. We are also developing an association that will litigate cases on behalf of appraisers and other professionals who have a valid copyright claim and have registered their work with the copyright office.
A well developed appraisal is a labor intensive effort and must be adequately compensated. Copyright infringement is a contributor to poor work product. As with any profession, appraisal clients are deserving of our best efforts. By copyrighting and enforcing copyright our clients will be well served and the marketplace will recognize good work without artificial fee ceilings.
About the Author
Mr. Vining has been appraising over 25 years. In addition to holding the MAI designation from the Appraisal Institute (AI), he has served on the AI Ethics Committee for 16 years and is a contributing author to the Second Edition of Appraisal of Rural Property, jointly published by AI and the American Society of Farm Managers and Rural Appraisers (January of 2001).