The Arizona REALTORS® (Association) holds the copyright and exclusive right to its branded forms. Protection of this copyright is of critical importance to all REALTORS®.
“If a member of the public desires to use an Association form, we want them to hire a REALTOR® who has the knowledge and understanding of that form,” said 2015 Risk Management Committee Chair Martha Appel. “If the public can independently access and use state association forms, the value of being a REALTOR® is undermined and the public puts themselves in potential harm’s way if they don’t understand the terms and conditions to which they have agreed.”
Nonetheless, whether intentional or by mistake, unauthorized use of federally-protected Association forms does happen.
Impermissible use of its forms typically occurs when: (1) a non-member copies, distributes and/or utilizes blank forms without the Association’s permission; (2) a non-member removes Association branding and changes a few words throughout the form in an effort to make it their own; (3) a REALTOR® member displays blank copies of partially completed forms on their website without the word “SAMPLE” stamped across each and every page; and (4) a REALTOR® member gives a valued client, family member, or friend blank copies of the Association’s forms for their personal use.
Additionally, another impermissible use of Association forms, which does not involve the general public, occurs when brokers display blank copies of the forms on their internal platforms for their agents’ use. Under each of these circumstances, the unauthorized user has violated federal copyright laws.
A copyright violation is clear when the form displays Association branding and is distributed to, or utilized by, an unauthorized user. Although not as clear, a violation again occurs when Association branding has been removed and the offender has changed words throughout the form. In such situations, Arizona law provides that the applicable standard is whether the two works are “substantially similar.” See Scentsy, Inc. v. B.R. Chase, LLC., 942 F.Supp.2d 1045, 1052 (9th Cir. 2013).
Pursuant to this standard, even if a court does not deem the offender’s actions “direct copying,” the Association would still establish a violation by proving that the offender: (1) had access to sample Association forms via the internet; and (2) the offender’s forms are “substantially similar” to those of the Association.
The creation and development of Association forms involves countless volunteer and staff hours. The Association therefore aggressively pursues and protects its copyrighted forms. Moreover, the forms are one of the most utilized REALTOR® benefits and are a way in which REALTORS® can distinguish themselves to demonstrate added value.
In other words, although the general public may not always know the difference between a “REALTOR®” and a “real estate agent,” Association forms are a great way for REALTORS® to start a conversation with potential clients to set themselves apart from non-REALTORS®. But if that member of the public can access blank Association forms without utilizing a REALTOR®, the significance of being a REALTOR® is diminished.
In order to protect its copyrights, the Association will continue to vigorously pursue all offenders.
To do so as effectively as possible, Arizona REALTORS® needs your help and asks that you report
all copyright infringements of Association forms. Working together, we can protect the value of
being a REALTOR®.
Nikki J. Salgat, Esq. is associate counsel to the Arizona REALTORS®. This article is of a general nature and reflects only the opinion of the author at the time it was drafted. It is not intended as definitive legal advice, and you should not act upon it without seeking independent legal counsel.