Who owns the report?

[Chris Bernhardt]

Who owns the inspection report?

Are you really being paid to perform the inspection and write a report?

I recently read an article in WorkingRE magazine www.workingre.com concerning copyrights that altered my thinking on the matter.

My conclusion was that depending on how your contract is written, the inspector or inspection company owns the report.

Think about it this way. What if you what you are really doing is going out at your own expense with permission to perform an inspection and create a report expressing your opinion of the home aimed at the client.

The client purchases the right to rely on the contents of the report and limited copyrights to reproduce and distribute the report.

All of the copyrights are reserved by the inspector or inspection company if the inspector is an employee of an inspection company

For the client to own all of the copyrights the inspector would have to either be an employee of the client or the work is commissioned as part of a greater work or you specifically state in your contract that the work is a “work for hireâ€

[Jim Morrison]

You copywright your report simply by writing copwright 2006 Blankety blank inspection service on it. But at best, I think it might act as something of a deterrent to honest people reselling or giving your work away. Even clear violations of this copywright are expensive to pursue.

However, you should copywright your work. It may help protect you should your client sell or give your report to a third party, should that third party sue you for some reason.

[hausdok]

Originally posted by Chris Bernhardt

I believe that clients consider the report theirs to do with what they will. I believe realtors and others consider the report as in the public domain and are free to rely on it and do with it as they will.

I don't think this is anything new. The copyright laws have been on the books for decades but home inspectors, for the most part, haven't bothered to make themselves smart about the subject.

Your copyright begins when you put pen - or in most or our cases, keyboard - to paper. You don't have to have a copyright symbol on your document, or to have even registered your copyright on the document, but, should you ever need to defend your copyright and are successful, having done so can potentially result in far greater monetary penalties being levied against those who violate your copyright.

I deal with this up-front before the inspection. I tell every client that the work is my copyrighted work product and that they are paying me for my knowledge and the time it takes me to inspect the home, impart my findings to them and produce the report. I tell them that once the report is released to them they are free to share it with their agent and the seller if they so desire. However, I also tell them that they are responsible to make sure that it's use is controlled, because it's a one-time work product created for their use for their transaction only - not for anyone else's - and that, if they walk away from the home, they may not sell it, barter it, trade it or give it freely, by any means, including electronically, to anyone that plans to use it to purchase the property.

I tell them that if someone else wants my report on that home, they can call me, schedule an inspection, and I'll sit right there on another day, go over the pre-inspection contract with them the same way and have them sign a separate contract, and then reinspect the home and product an entirely new report for them for which they can pay.

I warn the client that I'll take any violation of my copyright very seriously, and, should my report ever be used against me by another person who is not a party to the contract, that I'll pursue them (the client) in a court of law.

It's all part of a very serious 15 - 20 minute pre-inspection briefing that I undergo with every client before allowing them to sign the pre-inspection contract, in order to impress upon them that I'm very serious about the inspection process and expect them to be the same.

I don't realistically expect that everyone will pay attention to that and my copyright won't ever be violated. However, I fully intend to go after anyone who I find out knowingly blew-off the pre-inspection contract, violates my copyright and it comes back to bite me in any way, shape or form.

ONE TEAM - ONE FIGHT!!!

Mike

[Chris Bernhardt]

Mike,

You say this is nothing new however I can't recall ever seeing the subject mentioned in any of the common home inspection books or maybe I missed it and I have not seen any mention of it in the dozens of other inspection contracts that I have seen and those that are preprinted.

Its certainly a revelation to me that you and probably a lot of other home inspectors are already well aware of its importance and have incorporated the manner in your contracts.

I am not affiliated with any of the home inspection associations and I wonder if its common knowledge amougst them?

I had a lawyer look at my contract and reports at one time and he never made any mention about copyrighting.

This seems like an important issue. Do you know off hand where copyrighting with respect to home inspectors reports has been mentioned in any other publications and when did you first start communicating the seriousness with your clients?

Thanks,

Chris, Oregon

[Scottpat]

Pursuing copyright protection of your reports would then give you legal recourse to actually go after offenders.

It just might also kill any referrals you might be getting from the real estate profession.

I think that you might find that the cost of pursuing a copyright infringement would empty your pockets rather quickly.

IMO, its just not worth the trouble.

Once I do an inspection, I really don't care who sees the report. I have been paid for the inspections and subsequent report and now it's time for the next inspection.

[hausdok]

Hi,

Well, it's no secret, but it doesn't surprise me that it's not mentioned in home inspection books. Most of these are pretty poorly written, deal primarily with only how to perform an inspection and rarely reflect accurately, in my opinion, what inspection concerns are in every region, and are usually a reflection of the author's own narrow perspective based on his/her own experiences. When you figure that the average inspector probably doesn't like to drive more than about an hour from home in any given direction to perform an inspection, their experiences are usually limited to a pretty small geographic area.

Aside from that, most inspectors are, in a nutshell, better at the actual inspection process than they are at being business persons. I think you could fill 20 encyclopedias with what home inspectors don't know about homes and the business of being in business - myself included. Not thoroughly investigating copyright aspects of their reports is just one example of many things that inspectors are clueless about.

I've been aware of it since I got into this business. The pre-inspection agreement I had as a franchisee had a 3rd Partly Liability provision and a copyright at the bottom, but it didn't explain the copyright, so I went to the U.S. Copyright Office to study up on it. In the 10+ years that I've been doing this, I've read probably a hundred discussions on this and other internet discussion boards for home inspectors - some of them on the NAHI, ASHI, or NACHI organization sites - where this topic was the subject. We even ran a short story here on TIJ a while back that was about the same fellow who's copyright decision you just read about.

ONE TEAM - ONE FIGHT!!!

Mike

[Jim Katen]

Originally posted by Chris Bernhardt

Mike,

You say this is nothing new however I can't recall ever seeing the subject mentioned in any of the common home inspection books or maybe I missed it and I have not seen any mention of it in the dozens of other inspection contracts that I have seen and those that are preprinted.

I've never seen it in any home inspection text either. But then every single home inspection text I've ever seen is terrible.

Its certainly a revelation to me that you and probably a lot of other home inspectors are already well aware of its importance and have incorporated the manner in your contracts.

I am not affiliated with any of the home inspection associations and I wonder if its common knowledge amougst them?

I first heard about idea from Walter Jowers on the ASHI forum back in the mid-90s. He's a professional writer and, at the time, was also a home inspector. As such, he brought a writer's point of view to the issue. Nowadays, it seems to be a commonly understood concept among ASHI members. I'm not a member of any other national organization, so I can't speak for them. We've discussed the idea at the Oregon Association of Home Inspectors (OAHI-ASHI) meetings several times.

I had a lawyer look at my contract and reports at one time and he never made any mention about copyrighting.

You should mention it to him.

This seems like an important issue. Do you know off hand where copyrighting with respect to home inspectors reports has been mentioned in any other publications and when did you first start communicating the seriousness with your clients?

Thanks,

Chris, Oregon

I've never seen it in print, but it's been discussed on the various internet forums for over a decade now. I don't remember how long ago I added an explicit copyright warning to my stuff, but it was a long time ago.

- Jim Katen, Oregon

[Les]

Chris,

Each state is a little different; some incorp the ownership in law/regulation, some make reference to it and some ignore it.

See your Atty if you have any concern.

We have had third-party use of our report more than 100 times where it has become an issue. Your protection is not in copyright use, it is in your clear statement: This report is for the exclusive use by the named client and no other person or entity may rely upon the report and contents for any reason. Or something like that - see your Atty.

Most states/jursidictions recognize the report as your work product if it is your work and not an off the shelf system (book or software).

After many years in this business it is my belief and opinion "I don't care what you do with it" Just remember to never discuss it with anyone other than the person you did it for and paid for it.

See your Atty.

Oh ya' See your Atty.

[hausdok]

Hi,

What Les is really trying to say is see your attorney. [:-eyebrow

OT - OF!!!

M.

[Chris Bernhardt]

Thanks, guys

I am a bit embarrassed for being ignorant of the matter in light that I have been in the business longer than a while.

How do you handle those calls from the third party? You know - Hi, this is so and so and we are trying to buy the house at ... and you did the inspection on it and we have some further questions ... or they say "the owners completed repairs and we were wondering if you could come back out and check them?"

This is where I thought one could make them aware of the copyright and other things but I wonder how that conversation might go in a professional manner?

Thanks, Chris

BTW Mike and comrades at arms I can't tell you how much I respect and appreciate this forum.

Thanks, very much!

[kurt]

Late into this, and I wonder.

I'm not sure there's any way to effectively limit 3rd party use. Honestly, I could care less if anyone uses it, just so long as they don't call me. It's all about how big a mistake one might make & the likely direction litigation might succeed, no?

Anyone can get looped into sheeat they rightly shouldn't be, and no amount of contractural language is going to get one off the hook if the #'s are big enough.

Copyrights? Probably the only home inspection reports worth copyrighting are Walter's cuz they're artful, and O'Handleys' because they're mini-dissertations on housing & how it gets that way.

Anyone can have the copyright to one of my reports; they're boring. Does copyright matter for something as ordinary as HI reports?

[Les]

Very difficult to copyright the actual report document. The process can be copyrighted and the potential work product can be copyrighted. Then we get into service marks, styles, registry, etc..

Bottom line is you can not control where and what happens to your report. As for answering a third party "that report was a snapshot in time". I, personally, think we sometimes think too much of ourselves. I also think we comment and write things that are far beyond the scope of a simple inspection. Oh ya, we also are guilty of trying to walk on water. My feet have been wet for 25+ years!

[hausdok]

Hi Kurt,

Thanks for the uh, er, compliment.....I think.

Short or long report format, I don't think it really matters. Say your client walks away from a home and then he's approached by a subsequent buyer who wants the house. The other guy doesn't want to take the time to find/hire an inspector, go through the process and wait for the report, so he offers your client a few hundred bucks for the report that you just busted your ass to produce, and he gets the idea to do this from his realtorzoid. Your client sees a chance to recoup what he's paid you for the report on the property he doesn't want, so he agrees and transfers the report.

Two years later, the guy who bought your report, has a flooding issue in the basement, looks at the report and then discovers that nothing in your report indicates anything about basement flooding. So, he decides to sue you and finds himself a local bloodsucker to take the case. You get served with papers and find out they're sueing you under subrogation, so you're now off and running in a suit. In court, your lawyer forces the guy to admit that he'd paid your former client for the report and that he didn't have a contract with you and you end up winning. So, you've finally won the case but not before you're nerves are trashed, because it took two years and a lot of lost hours preparing stuff for your lawyer before it came to trial, and you're legal fees just about depleted everything you'd been working so hard to save for the downpayment on the summer cabin up in the Michigan woods. All because someone didn't respect your copyright and sold your product to someone else who didn't have a right to it.

if you go after the former client, the guy who tried to sue you and the 'zoid who's idea it was to purchase your report from the former client for conspiracy to violate your copyright, your very clear copyright could earn you treble damages from each and will send a very clear message to the local realtorzoid community that says, "If one of your clients wants an inspection report on a house, let him hire an inspector to get it, don't let him try and purchase a report from someone else without getting an inspection."

Yeah, I know, it's a stretch and it wouldn't do your name any good with the local 'zoid community, but you'd be a hero to the local inspector community, 'cuz every report obtained that way is the pocket of some home inspector picked.

Sorry, I know you know this stuff. It's just my OCD kicking in and making me say it. Besides, wuddueye know, I'm a retired military cop, not a lawyer.

ONE TEAM - ONE FIGHT!!!

Mike

[kurt]

I know. It all just sounds like a stretch.

I know Scott P. has been lassoed into some ongoing feud between 2 other parties, one who's a states atty. or something, and he was an inspector in the mix. He last indicated his part was probably a sham to keep him in the "free witness" category.

[Jim Morrison]

I hate to be the one to break the news to you, fellas, but there is no safety outside the grave. Copywrights aren't bulletproof, but they are an easily obtained layer of protection that no smart home inspector should go without (registering your copywright and getting a number from the library of congress is burdensome and unnecessary). On the bottom of every page of my reports it reads: "© 2006 Allan Morrison Home Inspection Co." That work belongs to my company and is protected under copywright law, which is extensive.

It won't keep you from being unfairly dragged through the shite (nothing will), but it might help get you out a little cleaner.

If your arse is worth protecting, your work is worth copywrighting.

[Scottpat]

Originally posted by kurt

I know. It all just sounds like a stretch.

I know Scott P. has been lassoed into some ongoing feud between 2 other parties, one who's a states atty. or something, and he was an inspector in the mix. He last indicated his part was probably a sham to keep him in the "free witness" category.

Yep, and it's still going. Oh and the attorney is a US District Attorney with a large amount of old family money. All it takes is a person who knows how to use & abuse the system and you are screwed without ever being kissed.

[hausdok]

Ummm,

Okay, that's when the amnesia kicks in and I can't remember a damned thing about that house because I've done too many of 'em.

OT - OF!!!

M.

[Les]

No.

See your Atty!

The entire purpose/reason for inspection is contrary to confidentiality.

See your Atty!