Is it OK resell my Survey?

[ozskipper]

Cant see why not. The surveyor has been paid. You own the results. I would certainly buy one if I had the chance. However, the only down side to buying is that one doesnt get the one-on-one chat with the surveyor as he works. Aside from that. No problems

[Delancey]

Apparently several people on this thread have never been to a USED BOOKSTORE before.

Perhaps go to one and ask if the have a copy of a book written by Abbie Hoffman entitled "Steal This Book" as you might find reading it enlightening.

https://en.m.wikipedia.org/wiki/First-sale_doctrine

[Temptress]

Originally Posted by CJsails

I may be able to recoup some of what I spent on the survey of a boat I declined to purchase by selling a copy of it to another prospective buyer. I suppose some surveyors may not like the idea of such transactions, but it looks like a win win for me and the next interested party. I would think I am within my rights to do so, and nothing in my contract say otherwise, but a little reassurance that I am not mistaken wouldn't hurt.

The survey is YOUR property. You commissioned and paid for it - you can sell it. I have done this with Boasts and Houses. You can certainly sell it!

[Delancey]

A survey is not a contract. Any "exclusive use" language is just a bunch of fluff. I would be more inclined to doubt the professionalism of a surveyor who included this in their survey than one who did not.

Copyright protection has to do with reproduction and the "First Sale Doctrine" in the U.S. basically exhausts the copyright so that who ever purchased the material is free to dispose of it however they see fit.

Otherwise there wouldn't be used bookstores or stores that sell used records, CD's, DVD's, or video games.

[CJsails]

Thank you all for your comments.

A closer look at the survey reveals that it does state it was prepared for "the exclusive use of the requestor/client" and "lenders and underwriters who may finance or insure the vessel for this client only." My bad, but one thing that threw me off was the surveyor told me at the time that the broker may ask to see it and that I was under no obligation to oblige. He went on to mention that it would OK to pass along certain parts of it. I don't remember which parts because I wasn't interested in giving away something I had just paid good money for. The broker did ask to see it, and I politely refused for the reason stated. Now, four months later, that same broker, who's probable request the surveyor had coached me on, comes to me with an offer to buy the survey. That's more like it I thought, but then I thought: is it legal, ethical, the right thing to do, should I ask the surveyor's permission? I thought about pretty much all of the points brought up in your reasoned responses.

All things considered I believe asking the surveyor for permission is the right thing to do, and I will let you all know how it turns out.

[l2ridehd]

With all the "disclaimers" all surveyors put in the results, enforcing any exclusive clause would be a fruitless effort.

Maybe the right approach would be to sit down with the potential prospect and for a small fee (maybe $150) go over and share the results without providing them a copy. That way the person can make an informed decision about the boat and if they decide to buy it can then get a survey required by insurance and a bank. If they decide to walk then a win win for both of you.

[VinnyVincent]

Books are copyrighted by the author. Its not illegal to sell those.

[Delancey]

I'm a creative-type with a lot of creative friends. I have copyrighted work and I have had copyrighted work stolen, so a subject close to my heart. From the wiki I linked to earlier-

The first-sale doctrine is a legal concept playing an important role in U.S. copyright and trademark law by limiting certain rights of a copyright or trademark owner. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others). In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder put the products on the market. The doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule.

The first-sale doctrine creates a basic exception to the copyright holder's distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. Thus, one who buys a copy of a book is entitled to resell it, rent it, give it away, or destroy it. However, the owner of the copy of the book will not be able to make new copies of the book because the first-sale doctrine does not limit copyright owner's reproduction right. The rationale of the doctrine is to prevent the copyright owner from restraining the free alienability of goods. Without the doctrine, a possessor of a copy of a copyrighted work would have to negotiate with the copyright owner every time he wished to dispose of his copy. After the initial transfer of ownership of a legal copy of a copyrighted work, the first-sale doctrine exhausts copyright holder's right to control how ownership of that copy can be disposed of. For this reason, this doctrine is also referred to as the "exhaustion rule."

The doctrine was first recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. In the Bobbs-Merrill case, the publisher, Bobbs-Merrill, had inserted a notice in its books that any retail sale at a price under $1.00 would constitute an infringement of its copyright. The defendants, who owned Macy's department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrill's consent. The Supreme Court held that the exclusive statutory right to "vend" applied only to the first sale of the copyrighted work.

Section 109(a) provides: "Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." The elements of the first sale doctrine can be summarized as follows: (1) the copy was lawfully made with the authorization of the copyright owner; (2) ownership of the copy was initially transferred under the copyright owner's authority; (3) the defendant is a lawful owner of the copy in question; and (4) the defendant's use implicates the distribution right only; not the reproduction or some other right given to the copyright owner.

[Paul Annapolis]

The OP has taken my original advice to check with the surveyor although he first wrote "nothing in my contract says otherwise" but now writes "A closer look at the survey reveals that it does state it was prepared for 'the exclusive use of the requestor/client' and 'lenders and underwriters who may finance or insure the vessel for this client only.' It always pays to read a survey and a contract carefully and if there are questions, why put it out to the anonymous public instead of to those involved or to the experts? I have no idea what to make of the various dicta cited and legal opinions, but I go back to an earlier comment I made which suggests that such prohibitive language may not be of any value except to scare off a would be re-seller. Who would ever wish to get involved in such a legal hassle? Nobody--not the surveyor or anyone I would imagine. But, if you hire a surveyor and object to such a clause---see if the surveyor will give you the right to resell the survey. It does not hurt to ask, however, as stated before, nearly every one of the many dozens I have seen have such a clause and I provided two examples. I believe it is normal. If the law were so simple and there were such things as open and shut cases, than I would agree with those who categorically state that if you bought it, you own and can do what you want. The law is not that simple. However the big issue with surveyors, I beleive, are all the legal disclaimers and CYA comments protecting themselves from liability. Most surveyor miss so many things and fail to check so many important things. Just yesterday I requested that a client (who had just bought a boat that was surveyed) to locate the bilge pumps, test them and same fore water heater. We had to uscrew floorboards--which the surveyor did NOT do--and we also found a leak at the water heater (which the surveyor missed). The surveyor missed that the type 4 throwable had disintegrated and the Bruce anchor was not secured properly. I have had similar situations many, many times and have come to have a healthy distrust of surveyors.

[valhalla360]

We have to clarify "contract".

Contract would be what you signed before he initiated the survey.

He can put in language in the final report that you must refer to him as "king buwana wana" when he enters the room. If you didn't agree to it in the original contract, he doesn't get to enforce it.

If it wasn't in the original contract you made with him, the surveyor has a choice. He can return your money or elminate the language.

This is standard fine print meant to intimidate you but would never be enforced in court.

[colemj]

Originally Posted by smj

You payed for the survey and it's yours to sell. Most insurance companies will accept a "second hand" survey if it was done within a year.

Originally Posted by FamilyVan

Within 10 in my experience.

There needs to be clarification between an "insurance" survey and a "purchase" survey. I highly doubt any insurance or bank would accept a 10yr old survey for a new purchase. Also, they tend to require that survey list the buyer's name on it. For re-issue of insurance, or for non-gap changing of policy to another insurer, an older survey is usually OK - but 10yrs is longer than I have ever experienced through several insurers.

If one is insuring or purchasing a low-cost boat through a home/auto company or small local bank, then this may be different - but the risk is less and the conditions of the policy more constrictive than a higher-cost, wider-used boat.

Mark

[colemj]

I thought copywrite was to prevent others from lifting your work and presenting it as their own - not to control selling or distribution of your work.

Mark

[smj]

We have given away 3 surveys from 3 different boats we were selling. All the surveys were done within a year of our selling the boats. Under the recommendation of one of the surveyors, we signed the rights of the survey over to the new owners. I'm sure different insurance companies will have different policies in regards to whether they would accept this.

[FamilyVan]

Originally Posted by colemj

There needs to be clarification between an "insurance" survey and a "purchase" survey. I highly doubt any insurance or bank would accept a 10yr old survey for a new purchase. Also, they tend to require that survey list the buyer's name on it. For re-issue of insurance, or for non-gap changing of policy to another insurer, an older survey is usually OK - but 10yrs is longer than I have ever experienced through several insurers.

If one is insuring or purchasing a low-cost boat through a home/auto company or small local bank, then this may be different - but the risk is less and the conditions of the policy more constrictive than a higher-cost, wider-used boat.

Mark

Mark, I asked the seller if they had any old surveys kicking around because I'm far too cheap to contract one unnecessarily. In both instances I referenced, the seller did have an old survey and a major insurance company accepted those surveys in both instances. One was 8 years old and when I sold the boat to one of my cheap friends, I gave him the old survey and his insurance company also accepted it.

It might be relevant that I'm far too cheap to ever contemplate paying more than $20k for a boat, but maybe not, because the same 3rd party liability insurance is required whether its a $5 000 boat or a $500 000 boat.

Sent from my XP7700 using Cruisers Sailing Forum mobile app

[Delancey]

The purpose of copyright protection is to ensure the originator of a work of "creative expression" can maintain control of distribution and reproduction of their work. Without it there would be no incentive to create the work in the first place and the world would be a very dull place indeed.

Buying a copyrighted work of creative expression does not entitle the purchaser to make and sell copies of the work, but they are entitled by the First Sale Doctrine to sell their physical copy. All of this is pre-digital and Digital Rights Management is a whole different ball of wax.

I would be very interested to learn on what basis surveyors include the exclusive use language. I never understood it. Maybe I am wrong, but I doubt it and in the absence of a contract or specific licensing agreement signed before the survey I think it's just scary fluff and see no scrupulous reason for it.

It would be funny to see what happens if on receiving a survey with this type of language, you refused it and refused to pay for it. Pretty sure they would remove the language rather than give up their paycheck.

Including a copyright symbol, the name of the owner, and a date is merely a notice. An actual copyright application must be submitted and approved for any actual protection to be granted. Of course to sue someone for infringement you have to prove damages.

In my case I gave a photograph to someone and a month later the image was published in a trade magazine. Curiously the image had been cropped to remove the copyright notice I had included. I found this to be particularly egregious since both the recipient and publisher were people who themselves produced works of creative expression and one or the other knowingly violated a device which is intended to protect us. I could have sued and won but the distribution was small and I had more to lose by souring my relationship with the person I gave the copy to.