Are Reports Intellectual Property?
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Recently one of my Mastermind students asked about Intellectual Property. He told me that he’d had an associate leave his firm to go solo. Later, he was reading one of his former-associate’s reports and found the now-independent associate’s reports looked a lot like his in format, and even language. My student asked me if this was wrong. Well, I’m not a lawyer, but there are some sound issues to consider here.
If you write something, if you are its author, it is your intellectual property. You can either trademark it (like a logo), or copyright it (like a novel). We are not the authors of our data, so they are not our intellectual property. However, our analyses of that data are our intellectual property. The language we use to describe what we did to form a credible value opinion, how we did it, and why we did it, however, are our intellectual property. Our value conclusion is our intellectual property since it never existed until we thought it up; it was the product of our creativity. It is ours. To the client, we sell the appraisal report with a summary of our efforts, true. However, the client owns the report, but not our intellectual property.
So, was the ex-associate of my student “guilty” of something wrong? Again, I’m not an attorney, so my answer is my own and, since you got it for free in this blog, worth every penny of what you paid for it. I think, yes, the associate was guilty of plagiarism. The ex tried to pass my student’s work off as his/her own when, indeed, it was not. Moreover, the ex got paid for taking credit for what my student originally wrote, for my student’s intellectual property. While imitation may be the sincerest form of flattery, it can also be plagiarism. You do not need to copyright something for someone else to plagiarize it. It is okay to use the intellectual property of another, but you must do that properly.
If you are going to use a lot of someone else’s work in your own, that requires permission of the author and/or the copyright holder. If you are going to use just a few words, then what you borrow must be in its proper context, you must quote it correctly, and you must cite the author in a footnote or the bibliography.
In the language of the Certification (see SR2-1, 2nd bullet-point), USPAP warns against plagiarism. Using another’s work without property authority and/or reference is plagiarism. In the Conduct section of the Ethics Rule USPAP says an appraiser “…must not communicate assignment results with the intend to mislead or defraud…”(ibid, lines 187 to 205) [See? Proper citation so you know I did not write that]). So when my student’s ex-associate, without authorization or proper citation took large parts of his appraisal template, as well as copious amounts of language from the reports my student had set-up/written, the ex mislead any clients or intended users. How? Simply by attempting to make them thing the ex set up the template and/or composed the language in the report. That was an attempt to mislead. So, the ex engaged in two ethical violations.
It should be clear, then, that the appraisal is intellectual property. If follows, therefore, the parts of the appraisal report the appraiser writes are also intellectual property. If another appraiser uses them without property authorization or citation, that is both plagiarism, as well as misleading. Both are breaches in USPAP’s Ethics Rule.
Now, is it worth pursuing? That is another question entirely, and come down in large part to harm. Is there a lesson here? If you were trained by your mentor, and end up going out on your own, do your own templates! It doesn’t take very long, and it’s just the right thing to do.
For more information on this subject, please download and listen to The Appraiser Coach Podcast Episode: 213 Is An Appraisal Report Considered ‘Intellectual Property?’
We all know Dustin by saying Mastermind student that its really you asking for yourself.
When you complete 4 to 9 appraisals a day by perhaps outsourcing to sweatshops in India, it does become a problem when their $9.99 package only offers 3 different templates / formats to choose from. You might want to become an All-star member for $24.99 which includes 10 templates, a free Rosetta Stone download, VHS training tapes, and a monthly hands on training secession.
Or perhaps Monday its India, Tuesday its the Philippines, Wednesday its USA, and with your 3 day work week, rinse and repeat starting Monday.
What ever you do, just like you suggest for AMC’s be sure you work with tier 1 / group A third world appraisal service companies. At your next Sunday brunch, say hi to above ground pool Mike for me.
Seek the truth.
What, India does not respect our intellectual property?
Perhaps we should put tariffs on them too. 30% tariffs on appraisal services, sounds good.
If it wasn’t true Marion it would almost be funny. I 100% know appraisers who have set up profiles with appraisal teams in India that often do 80% of the work if all was done by a single appraiser. These teams take orders directly from the appraisers e-mail, do a pre-write up with the appraisers credentials (MLS, Datamaster, etc.), before sending it back to the appraiser. The appraiser or office staff captures a group of sales (comps ?), sends them back to India where they clean up the data and insert the appraisers adjustments. Post appraisers inspection, sketch, etc. the sales are narrowed to the best comps and all of the data is sent back to India for final processing.
Unfortunately, you and I are competing against these appraisers, and or against those that teach such slippery slope techniques.
On that note, I heard a story about a lady who worked 61+ hours over 7 days, and in a small amount of time she morphed her appraisal business into a cash making machine where she makes over $501,000 every 365 days.
If I can remember where I heard that story from, I will let you know.
Seek the truth.
But then doesn’t your response, beg the question of the original author, Mr. Dustin, of, how an appraiser can tell if a former trainee / employee / co-worker plagiarized your work, or if a foreign data processor did? Or is the article here to further backstab the profession without research and verification of the allegations?
Unfortunately Bill, too many do not “seek the truth” as you note.
Keep in mind Marion, Dustin has only a couple other appraisers in his home county, and only a few hundred in his entire state (I have +/- 950 in my single county). Being of such a small circle and with his output of 4 to 9 appraisals a day, its probably only a matter of months before he cycles through (reviews), most appraisers in the state. In this example, and this environment, he can in a way monitor who is doing what with his data.
In my example, if an appraiser provides a template to a foreign data processor who works throughout the states, the odds of knowing what they are using from your report (profit off of), will never be known. The sharing of your data is not with a few appraisers, but could be in the thousands.
My point is, after our reports leave our hands there will never be a shortage of people looking to profit from our work.
Seek the truth.
I never set up a profile for outsourcing (anywhere). I personally don’t believe in it. Others have to decide for themselves.
I agree Bill.
But does Dustin realize that every single appraiser in this country might be using Dustin’s template, if they are using the same Indians as Dustin? And that you can’t be held for plagiarizing Dustin’s work, if you’ve never seen Dustin’s work identified?
So 9 appraisals a day in a rural area and still has time to write blogs? Fascinating. Makes one wonder the depth of concern for mineral rights, soil types, wetland issues and changing regulations. Just doesn’t seem to be enough time in the day for all of that. Oh but I guess templates solve these issues, cause they are easier to ignore that way.
Pretty hard to trademark form and general format of an appraisal since they are all supposed to follow a basically similar sequence. I’m not saying it’s impossible, but it would (1) have to be unique; (2) not be in the public domain & even then a chance that it would have to be reapplied for every time it was changed. A literal template would probably be another story.
At AGA we want to promote appraisers helping other appraisers to do good or better quality work. Most older appraisers have and continue to ‘borrow’ from other reports they see. I certainly have. I have also provided templates for others. Either for free or special request & focus (fee). Often I am simply impressed with the manner in which another appraiser has treated a recurring issue and will update my reports based on that. It’s called ‘learning’ rather than plagiarism. I don’t copy their unique intellectual work verbatim. If it really is unique, then it’s not likely to apply from one report to the next. Form, or format? Most certainly.
AGA recently trademarked (technically a ‘service mark’) the abbreviation AGA™ in the state of Md (fully completed); and submitted a replacement application to USPTO (well in process) for the same thing though that one (national) may be expressed as either AGA™ or AGA®. We didn’t do it to prevent others from using it; but rather to avoid having it usurped from us by others for their exclusive use to our exclusion (AGA has been known by AGA in excess of 17 years).
So as far as I am aware, Accredited Green Appraisers (AGA) will likely be allowed to continue that use. Our Executive Board has not formally concluded future policy for it; though it was never an expressed intent to prevent its use by others.
American Guild of Appraisers Members may use “AGA” or AGA™ or AGA®. There are numerous other companies that have used AGA in the past as well. The list is quite long. They are in unrelated fields and we don’t see their use being detrimental to our own members’ use. At least as long as no one out there is damaging our image through their misuse or abuse of it.
It’s one thing to hold a registered trademark or service mark. It’s another to enforce prohibitions against its use. Do we really need more protectionism against each other with all the other bigger issues going on? Shouldn’t our focus be on greater cooperation rather than dissent?
Appraisers that want to protect their work should copyright it. Much easier. Each individual report. Not to prevent other appraisers from using the format, but rather to keep FNMA and Corelamode from stealing the data and results of analyses to build their own products to directly compete with us.
AI has long published ‘suggested’ sequential information. By itself, it is not copyrighted. It’s considered generally accepted sound appraisal practice. Effectively in the public domain. They have taught it in the past. I like that it is broadly taught rather than kept secret, like some kind of secret handshake.
Reproducing an exact replica of their newer (alamode) commercial form would likely be problematic; though I’d love to see them do that. It’s a great replacement for the outdated UCIAR-SP and EP.