Written by Nathan Thomas on December 8, 2005
Written by Nathan Thomas on December 8, 2005
Among the concerns we hear from appraisers warming up to the idea of registering their intellectual property - that is, their appraisal reports - with the U.S. Copyright Office is that $30 a pop is too prohibitively expensive. Critics of the idea who want AVM companies to continue to have free reign to copy and reuse your work have warned that you just aren't getting enough for your money.
What it's important to understand is something we emphasize every time we talk to appraisers about copyrighting: You own the copyright to your work whether you register it or not. Some think you can only put a copyright notice on your reports (which Aurora lets you do automatically if you tell it to) if you've paid to register. Not true! Since you own your work and only give your clients the limited right to use it for purposes of evaluating their collateral for a mortgage loan, you should display a copyright notice whether you register that report or not.
And therein lies the key to how often you should register. When we urge you to note your copyright rights on your reports, we also tell you that whether you register a specific report or not is completely up to you. We tell appraisers that a diligent course of action for protecting their rights includes noting their copyright on each report and registering a certain number of them with the U.S. Copyright Office. Not all! You could, for example, register every fifth report you do, or every tenth. Or, if you have reason to be concerned that a particular client is illegally reusing your work, every report you prepare for that client, but not others.
This same principle explains why even 10 percent of appraisers registering 10 percent of their reports will cause the theft of data to stop: The well will be poisoned, so that companies will never know whether the report they want to illegally re-use is registered or not - and there will be too much at stake for them to guess.
The copyrighting regimen that's right for your business depends on what you get out of registering. Here's the deal. If someone misappropriates a report of yours, by reusing the data in a "derivative work" (i.e., AVM database intended to replace you), or sells your report to a data reporting company for that purpose, if you sue and win you will have to prove how much damage that misappropriation did your business.
Registering your report makes it unnecessary to prove damages. If your client is found to have illegally used your work, and the report was registered, federal law entitles you to what's called "statutory damages." Without proving the monetary value of your work, you will be entitled to up to $150,000 per illegal use of your work. ($150,000 is the high end, for "willful" misuse. There are other, lower figures as the culpability of the other party decreases, but the point is the figures are provided by law. All you have to do is show your work was improperly used.)
You're not trying to make money by suing people, of course. You're trying to ensure that your work isn't used other than the way you bargained for. Registering, say, every tenth report you produce and including a copyright notice on every report makes your client and their data business partners aware that you protect your rights. They don't want to take a chance that the report they're plugging in to their AVM database doesn't happen to be one you've registered. (Because remember, even if they "guess right," you can still sue them for copyright infringement and win.)
Including your copyright notice on every report and registering some of them should be an adequate deterrent to the misuse of your work. Then, if you choose to license your report data to be used in a competing database - for a higher fee - you'll be able to do that.
Attendees at our second annual Winter Convention in Las Vegas next month will learn more about their copyright rights. Tim Vining, the Washington state appraiser who sued and won for copyright infringement, will be a featured speaker at a lunchtime panel January 17.