California Association Of Realtor's-Preprinted Contracts-No Fair Use?

[BeautifulPuzzle]

What is the name of your state (only U.S. law)? California

I am a licensed real estate agent in the state of California and a member in good standing of the California Association of Realtors (CAR).

The California Association of Realtors creates and makes available preprinted contracts and other forms that are copyrighted. These forms are available free to union members or for a small fee to members of the public.

I would like to be able to reproduce these forms online in order to be able to explain these forms or answer questions about them from potential clients and interested members of the public for educational purposes only.

I asked the California Association of Realtor's staff attorneys if this were possible.

Their response was that (CAR) forms cannot be reproduced for any purpose other that to be filled out by a buyer or seller and used as part of a real estate transaction.

I find this very hard to believe...

--------------------------------- QUESTION ENDS HERE/SUPPORTING INFORMATION BELOW---------------------------------

This is from the CAR Website:

Introduction

The standard forms published by C.A.R. for use in real estate transactions are protected by copyright law. To insure the value of the copyright is preserved, C.A.R. vigorously pursues and prosecutes persons who commit copyright infringement on the standard forms. Occasionally, persons inadvertently commit copyright infringement because they lack an understanding of basic copyright law. Therefore, to clarify the application of copyright law to C.A.R.'s standard forms and to avoid unnecessary prosecutions, the following questions and answers address the main questions that arise with respect to copyright law and C.A.R.'s standard forms.

Q 1. What is a copyright?

A In general terms, copyright is a form of legal protection provided by the laws of the United States to authors of "original works of authorship," that are fixed in a tangible (i.e., some sort of physical) form. "Works of authorship" include literary, dramatic, musical, and artistic works, and certain other types of works such as computer software. The work must have some originality; it must be the result of some creative effort on the author's part.

See the U.S. Copyright Office's website (U.S. Copyright Office) for a good synopsis of copyright law.

Q 2. What kind of legal protection does a copyright provide?

A A copyright gives the owner of the copyright exclusive rights to do certain things with respect to the copyrighted work. For example, a copyright owner has the exclusive right to reproduce (i.e., copy) the copyrighted work and sell the reproductions to the public. A copyright owner also has the exclusive right to authorize others to copy the work and sell it to the public. (17 U.S.C. § 106.)

Q 3. Are C.A.R. standard forms copyright protected?

A Yes. C.A.R. standard forms are considered "literary" works of original authorship and thus copyright protected. To make users of the forms aware of this, C.A.R. standard forms contain a prominent copyright notice at the bottom of the form.

Q 4. What is copyright infringement?

A Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates any of the copyright owner's exclusive rights in the work. For example, copying a copyrighted work without authorization from the copyrighted owner is copyright infringement. Also, developing derivative works based on or incorporating portions of a copyrighted work is copyright infringement. Examples of copyright infringement include copying a blank C.A.R. standard form and using it in a transaction or copying verbatim paragraphs from a C.A.R. standard form and incorporating them into an independently drafted agreement. (17 U.S.C. § 106.)

Q 5. Is photocopying or faxing blank C.A.R. standard forms copyright infringement?

A Yes. Unauthorized reproduction or copying of a blank C.A.R. standard form is copyright infringement.

Q 6. Is photocopying or faxing C.A.R. standard forms that are partially or fully completed copyright infringement?

A No, so long as it is done in relation to a real estate transaction. For example, C.A.R. does not consider faxing a completed offer or copying a signed purchase contract for a client copyright infringement. Since C.A.R.'s standard forms are provided for real estate transactions, photocopying or faxing partially or completed forms for purposes related to a real estate transaction will not be considered copyright infringement.

Q 7. What kinds of penalties and damages exist for copyright infringement?

A Copyright law provides severe criminal and civil penalties for copyright infringement. In addition to criminal sanctions, the infringer is liable to the copyright owner for (a) the copyright owner's actual damages and any additional profits the infringer earned from the infringement, or (b) statutory damages, up to $30,000, and, where the infringement was intentional, the infringer may be liable for statutory damages up to $150,000. The plaintiff may also recover costs including attorney’s fees in some cases. (17 U.S.C. § 504 (damages); 17 U.S.C. § 505 (costs and attorney's fees).)


Q 8. If I want to reproduce or reprint a C.A.R. standard form or a C.A.R. legal article, where can I get further information about doing so?

A If you desire information about C.A.R.'s reprint policy for standard forms, please contact Joy Alafia at [email protected]. If you wish to reproduce a C.A.R. legal article or legal Q&A, please contact Laura Williamson at [email protected].

Q 9. Where can I get more information?

A This legal article is just one of the many legal publications and services offered by C.A.R. to its members. For a complete listing of C.A.R.'s legal products and services, please visit C.A.R. Online at CAR : Homepage.

Readers who require specific advice should consult an attorney. C.A.R. members requiring legal assistance may contact C.A.R.’s Member Legal Hotline at 213.739.8282, Monday through Friday, 9:00 A.M. to 6:00 P.M. C.A.R. members who are broker-owners, office managers, or Designated REALTORS® may contact the Member Legal Hotline at 213.739.8350 to receive expedited service. Members may also fax or e-mail their questions to the Member Legal Hotline at 213.480.7724 or [email protected]. Written correspondence should be addressed to:

California Association of REALTORS®
Member Legal Services
525 South Virgil Avenue
Los Angeles, California 90020

 

[divgradcurl]

Their response was that (CAR) forms cannot be reproduced for any purpose other that to be filled out by a buyer or seller and used as part of a real estate transaction.

I find this very hard to believe...

Why is that "hard to believe?" They own the copyright to the work, they can control the distribution, reproduction and public display of that work.

 

[BeautifulPuzzle]

Why This Is Hard To Believe....?

Why is that "hard to believe?" They own the copyright to the work, they can control the distribution, reproduction and public display of that work.

I find it hard to believe that:

1. These copyrighted contracts could never be used by a professor in a classroom for any kind of educational purpose.

2. These copyrighted contracts could never be quoted in an online discussion or even by a reporter or blogger writing an article about these contracts.

If every publisher of every copyrighted work had the stranglehold that CAR claims to have on its contracts, it seems to me that scholarship, education, and journalism would be much more constrained than it otherwise seems to be.

That is why I find it hard to believe.

 

[Zigner]

I find it hard to believe that:

1. These copyrighted contracts could never be used by a professor in a classroom.

Of course they can - permission can be granted (or not, as in your case). The info you posted gives clear instructions and contact information.

2. These copyrighted contracts could never be quoted in an online discussion or even by a reporter or blogger writing an article about these contracts.

That's not what you want to do, is it?

 

[Silverplum]

Here's CAR's reason, as quoted by you:
"To insure the value of the copyright is preserved..."

That's their reason. That's their right.

I find it hard to believe that:

1. These copyrighted contracts could never be used by a professor in a classroom for any kind of educational purpose.

2. These copyrighted contracts could never be quoted in an online discussion or even by a reporter or blogger writing an article about these contracts.

If every publisher of every copyrighted work had the stranglehold that CAR claims to have on its contracts, it seems to me that scholarship, education, and journalism would be much more constrained than it otherwise seems to be.

That is why I find it hard to believe.

 

[BeautifulPuzzle]

Please See My Original Post

Please read my original post as to what the CAR attorney told me:

"Their response was that (CAR) forms cannot be reproduced for any purpose other that to be filled out by a buyer or seller and used as part of a real estate transaction."...(Case Closed)

So yes, they may give you an email or phone number to call and get permission to reprint their work; but, the attorney implied that no such permission would be granted.

Again, this is what I find hard to believe.

 

[Zigner]

Please read my original post as to what the CAR attorney told me:

"Their response was that (CAR) forms cannot be reproduced for any purpose other that to be filled out by a buyer or seller and used as part of a real estate transaction."...(Case Closed)

So yes, they may give you an email or phone number to call and get permission to reprint their work; but, the attorney implied that no such permission would be granted.

Again, this is what I find hard to believe.

One more time...it is their RIGHT to deny you (or anybody permission). Get it?

 

[Mass_Shyster]

Your alternative is to go ahead and use them as you wish, calling it fair use. See Quincy's explanation below:

Note: Even if the judge agrees that your use falls under fair use, the CAR does not have to renew your membership.

 

[Silverplum]

Please read my original post as to what the CAR attorney told me:

"Their response was that (CAR) forms cannot be reproduced for any purpose other that to be filled out by a buyer or seller and used as part of a real estate transaction."...(Case Closed)

So yes, they may give you an email or phone number to call and get permission to reprint their work; but, the attorney implied that no such permission would be granted.

Again, this is what I find hard to believe.

If a tree falls in the forest and no one is there to hear it, does it make a sound?

If you don't believe CAR's policy, does that change their policy?

 

[divgradcurl]

Please read my original post as to what the CAR attorney told me:

"Their response was that (CAR) forms cannot be reproduced for any purpose other that to be filled out by a buyer or seller and used as part of a real estate transaction."...(Case Closed)

So yes, they may give you an email or phone number to call and get permission to reprint their work; but, the attorney implied that no such permission would be granted.

Again, this is what I find hard to believe.

Well, here's the dilemma. You are right that the copyright does not give them a complete stranglehold on how to use the CAR forms -- there are exceptions carved out for fair use, and for certain educational uses.

However -- the statement by the lawyer, even if not technically entirely correct, should put you on notice that they intend to enforce the copyrights as far as they can. The FAQ you posted earlier provides notice as to what they intend to enforce, and what they consider acceptable use.

Based on what you have written, it doesn't seem like any of the exceptions in the copyright statute apply to you. The "educational" carveouts are generally limited to use by bonafide educational institutes, not just anyone who claims to be using the work for an educational purpose. Fair use is codified in 17 USC 107, but that just lays out the 4 factors, and doesn't tell you anything about how the courts interpret or weigh the four factors -- you need to look at the caselaw to figure that out. In general, if you are using an entire copyrighted work, you have a real uphill battle to prove that a use was fair if the copyright holder wants to fight you on it.

If you can't get permission from the CAR, then you either need to develop your own forms to use as examples in your training, or be willing to face a lawsuit -- in which case, you would be well advised to discuss your plans with an attorney first.

All that said, instead of asking for permission to use the form, maybe its possible to collaborate with the CAR to put together the training system you envision? That might be another option.

 

[BeautifulPuzzle]

Why I Am Pursuing This At All...

Just to give some background about what my original intent was:

As a real estate agent in this business every day, I strongly suspect, but I cannot prove that:

1. Many real estate agents don't read the contracts they use or have any real idea of what the contracts say.

2. If the agents are not reading or understanding the implications contained in these contracts, then there is no way that these agents are adequately explaining these contracts to their clients.

The best thing would be to put these contracts directly in the hands of the public, in a neutral forum or using a transparent distribution method, like a blog, so that they (buyers and sellers) could adequately inform themselves of the content and meaning of these contracts they are signing every day.

I can see that this will be harder than I originally planned, but not necessarily impossible.

Thanks for all of your opinions on this matter so far.

 

[Zigner]

You accuse agents of not reading or having any real idea of the contracts they use...yet you can't even understand the VERY SIMPLE language used regarding the copyright protections of the work...intriguing.

Just to give some background about what my original intent was:

As a real estate agent in this business every day, I strongly suspect, but I cannot prove that:

1. Many real estate agents don't read the contracts they use or have any real idea of what the contracts say.

2. If the agents are not reading or understanding the implications contained in these contracts, then there is no way that these agents are adequately explaining these contracts to their clients.

The best thing would be to put these contracts directly in the hands of the public, in a neutral forum or using a transparent distribution method, like a blog, so that they (buyers and sellers) could adequately inform themselves of the content and meaning of these contracts they are signing every day.

I can see that this will be harder than I originally planned, but not necessarily impossible.

Thanks for all of your opinions on this matter so far.

 

[BeautifulPuzzle]

Your alternative is to go ahead and use them as you wish, calling it fair use.

I have contacted CAR to see if I can get permission to reprint their contacts for educational purposes only.

I did not expect that CAR would be as vehement as it has been so far about keeping its contracts secret.

It just surprises me that an organization that spends so much time blah, blah, blahing about how much it loves the public and wants to take care of the public's interest and educate them about the real estate process would not be jumping at any opportunity to allow the public to be educated in a public forum as to what its contracts actually say and what those contracts obligate a buyer and seller to do when they sign one.

 

[BeautifulPuzzle]

If you can't get permission from the CAR, then you either need to develop your own forms to use as examples in your training, or be willing to face a lawsuit -- in which case, you would be well advised to discuss your plans with an attorney first.

All that said, instead of asking for permission to use the form, maybe its possible to collaborate with the CAR to put together the training system you envision? That might be another option.

Both of your suggestions are excellent. I am considering both right now. Thank you very much for your help.

 

[Silverplum]

I have contacted CAR to see if I can get permission to reprint their contacts for educational purposes only.

I did not expect that CAR would be as vehement as it has been so far about keeping its contracts secret.

It just surprises me that an organization that spends so much time blah, blah, blahing about how much it loves the public and wants to take care of the public's interest and educate them about the real estate process would not be jumping at any opportunity to allow the public to be educated in a public forum as to what its contracts actually say and what those contracts obligate a buyer and seller to do when they sign one.

Still their forms. Still their copyright. Still their right to sue you if you violate their copyright.