Is it OK resell my Survey?

[valhalla360]

Copywrite of a commissioned work is different animal from work the author did of thier own volition (ie: they wrote a novel in their personal time)

Ownership of the survey is based on what the original agreement stated. If nothing was stated in the original contract, the presumption would be that the buyer owns the material as they paid for it to be developed. What the surveyor put in the report after the fact has no bearing on the contract unless you agree to it.

[Mike OReilly]

Originally Posted by valhalla360

Copywrite of a commissioned work is different animal from work the author did of thier own volition (ie: they wrote a novel in their personal time)

Ownership of the survey is based on what the original agreement stated. If nothing was stated in the original contract, the presumption would be that the buyer owns the material as they paid for it to be developed. What the surveyor put in the report after the fact has no bearing on the contract unless you agree to it.

Perhaps US copyright law differs from other common law jurisdictions on this matter, but the issue of whether it is a commissioned work or not would be irrelevant. The original creator is the copyright owner. It is certainly possible, and in some cases normal, that copyright does transfer to the commissioner of a work. That would be part of the contract.

Again, I'm not an expert in US copyright and contract law, but in other common law jurisdictions a legally binding contract can exist outside of a formal written document. A verbal contract is still a contract, it's just that it's a lot harder to establish and enforce when a dispute arises, which is why it's always better to get things in writing.

If the industry standard practice is (in this case the boat surveying business) is that the commissioner owns the survey, and nothing was specifically negotiated to the contrary, then that would be the contract in place. However, in this case it's pretty clear the surveyor specifically stated he was granting a limited license to use his work (the survey). Now, whether this was inserted after the initial agreement opens up a whole different set of legal and ethical questions.

Stepping back though, all of this is a rather theoretical discussion. Quite frankly I can't see any professional surveyor really caring, and certainly not taking any action to prevent the sale as the OP outlines. It's not worth the time nor effort. That said, the absolute best thing to do would be to simply request the surveyor grant the OP the right to re-sell his work. As I understand it, thus is exactly what he's doing. So all good.

[geoarch9]

I wasn't going to respond to this but after reading through all the posts no one has addressed the issue as to whether a Surveyor is licensed by the state, and do thy need to pass an exam or show a minimum level of competence in order to receive a survey license by the State. If they are, then there are licensing laws that govern how a surveyor can practice his profession and to limit the surveys he does to within his limits of competence. He is then required to place his seal and signature on the survey attesting to that fact, and would have a seal from each state of licensure. Which is why insurance companies accept the survey report as a legal document as a reliable opinion and write a policy based on it. Why it can be also be used in a court of law. So what are you purchasing when you receive a survey...the professional, experience, technical skills and engineering knowledge, possessed by the surveyor. Which is his alone. The written report is his work product which is that knowledge expressed in writing. You may possess a copy of the document but do not own its content. You do have a license of use, but not the right to sell the content or its right of use. Without written permission of the surveyor. This would be the same as a Doctor, Nurse, Architect, Engineer, Dentist, Lawyer...etc.

[Dsanduril]

My question would be "if I sell my survey, do I become the legal recourse for the buyer in the event of a problem with the survey?". Regardless of exclusive use language, unless the surveyor has a crap contract their only obligation is between the surveyor and their initial client. The initial client may be able to go back to the surveyor if something got missed (good luck with that, but at least a contract exists).

If the secondary buyer of the survey finds something the surveyor missed the exclusive use language in the survey will likely protect the surveyor from a claim from the secondary purchaser. That is really the whole point in exclusive use language in pretty much all professional services work product, and is the reason that the language is in the document itself, not in the contract. It is there to protect the service provider from claims by third parties with whom the professional has no contract.

So, if you sell the survey what representations are you making as to completeness, accuracy, and suitability for purpose? I'd be more concerned about whether or not I was opening myself up to liability than whether or not the surveyor might get annoyed.

[CJsails]

Thank you geoarch9 for that bit of clarification. And thank you everyone else for your valuable insights. The interplay of money, the law, and humane nature create a fascinating milieu indeed. Amazingly what's right and what's wrong is not black and white. If it was we would have no need for a judicial system. That said, the bottom line for me turns out to be my own personal integrity. I believe that I gave my word to behave a certain way and that is what I always strive to do. I have forwarded the request to "provide a copy" of the survey to a "potential buyer" to the surveyor and await his reply.

Also, I hope nobody is biting their fingernails because I will likely be incommunicado over the weekend, but whatever happens will be posted here ASAP.

[northoceanbeach]

I think its fine to sell. They charge so horrifically much for those little pieces of paper. What is the point of having him survey the boat again. I say sell.

[colemj]

Originally Posted by northoceanbeach

I think its fine to sell. They charge so horrifically much for those little pieces of paper. What is the point of having him survey the boat again. I say sell.

They charge for their time and expertise, not the paper. Our last purchase survey took 10hrs, and was a complete flaying open of the boat and its systems. Cost us $600 including the additional two hour travel time for the surveyor.

Seems like a reasonable rate charge, not to mention it was a 12hr day for the guy. Most marine businesses charge $80-100/hr, with higher overtime for something like a 12hr day.

Mark

[Captain Obvious]

I would ask the surveyor and offer him a cut. If you sell it for 350 then offer him 150. Everyone's happy then. Maybe.

[Imprezza72]

I would say sell it. It seems a lot of the legal mumbo jumbo may pertain to your rights say, to sue the surveyor for a blatant over-cite or misrepresentation. They would not convey to the person you sell it to.

[smj]

Originally Posted by colemj

They charge for their time and expertise, not the paper. Our last purchase survey took 10hrs, and was a complete flaying open of the boat and its systems. Cost us $600 including the additional two hour travel time for the surveyor.

Seems like a reasonable rate charge, not to mention it was a 12hr day for the guy. Most marine businesses charge $80-100/hr, with higher overtime for something like a 12hr day.

Mark

You also have to figure in the time taken to write the report, the cost of their insurance and doing business as a whole and the cost of their schooling.


Sent from my iPad using Cruisers Sailing Forum

[valhalla360]

Originally Posted by Mike OReilly

Perhaps US copyright law differs from other common law jurisdictions on this matter, but the issue of whether it is a commissioned work or not would be irrelevant. The original creator is the copyright owner. It is certainly possible, and in some cases normal, that copyright does transfer to the commissioner of a work. That would be part of the contract.

Again, I'm not an expert in US copyright and contract law, but in other common law jurisdictions a legally binding contract can exist outside of a formal written document. A verbal contract is still a contract, it's just that it's a lot harder to establish and enforce when a dispute arises, which is why it's always better to get things in writing.

If the industry standard practice is (in this case the boat surveying business) is that the commissioner owns the survey, and nothing was specifically negotiated to the contrary, then that would be the contract in place. However, in this case it's pretty clear the surveyor specifically stated he was granting a limited license to use his work (the survey). Now, whether this was inserted after the initial agreement opens up a whole different set of legal and ethical questions.

Stepping back though, all of this is a rather theoretical discussion. Quite frankly I can't see any professional surveyor really caring, and certainly not taking any action to prevent the sale as the OP outlines. It's not worth the time nor effort. That said, the absolute best thing to do would be to simply request the surveyor grant the OP the right to re-sell his work. As I understand it, thus is exactly what he's doing. So all good.

The original contract (not the language put in the survey report) is what counts. If the surveyor put in there that he owns the copywrite, then the surveyor owns the copywrite. With a verbal contract it makes no difference (other than being difficult to prove). Either he laid claim up front to the copywrite or he didn't.

If he didn't specifically call it out in the original contract, the survey is the property of the commissioner and it is the commissioner's option regarding what is done with it.

I can certainly see a surveyor taking issue. In most areas there are a limited number of surveyors and that reduces the number of surveys that he can go after and he has a major advantage since he already has the survey completed.

Of course that leads to the reverse issue, could the surveryor sell the survey to someone else? He doesn't get to sell the intelectual property I paid for.

[Rustic Charm]

Originally Posted by CJsails

Thank you geoarch9 for that bit of clarification. And thank you everyone else for your valuable insights. The interplay of money, the law, and humane nature create a fascinating milieu indeed. Amazingly what's right and what's wrong is not black and white. If it was we would have no need for a judicial system. That said, the bottom line for me turns out to be my own personal integrity. I believe that I gave my word to behave a certain way and that is what I always strive to do. I have forwarded the request to "provide a copy" of the survey to a "potential buyer" to the surveyor and await his reply.

Also, I hope nobody is biting their fingernails because I will likely be incommunicado over the weekend, but whatever happens will be posted here ASAP.

This is the most sensible advice on this thread and it's your own

Your talking about a few hundred dollars compared to thousands if you get caught up in the courts arguing over breach of contract stuff. Simply not worth taking that sort of risk for something you suspect is at least improper and worst unlawful.

[Mike OReilly]

Originally Posted by valhalla360

The original contract (not the language put in the survey report) is what counts. If the surveyor put in there that he owns the copywrite, then the surveyor owns the copywrite. With a verbal contract it makes no difference (other than being difficult to prove). Either he laid claim up front to the copywrite or he didn't.

If he didn't specifically call it out in the original contract, the survey is the property of the commissioner and it is the commissioner's option regarding what is done with it.

I can certainly see a surveyor taking issue. In most areas there are a limited number of surveyors and that reduces the number of surveys that he can go after and he has a major advantage since he already has the survey completed.

Of course that leads to the reverse issue, could the surveryor sell the survey to someone else? He doesn't get to sell the intelectual property I paid for.

I guess we'll have to agree to disagree. Unless US copyright law is different than other common law jurisdictions the original creator own the copyright. My experience with copyright law is that it is irrelevant who commissioned the work. The copyright is vested with the one who does the creating.

As I say, it is certainly possible for the author (in this case the surveyor) and the commissioner to come to any agreement they want as to who owns the final copyright. But barring a specific agreement (contract) to the contrary, copyright is almost always vested with the author at the moment of creation.

I agree with you that the terms of licensing and/ownership must be determined at the outset. If this issue was not specifically provided for in the contract, and if a dispute arose, then the courts would look to industry standard practice to determine whether copyright was transferred to the commissioner of the survey. I don't know what the standard practice is in the USA, but given the responses from others I'd guess copyright transfer is NOT standard.

And yes, barring a specific contract to the contrary, her surveyor would be within his rights to sell the survey to someone else.


Why go fast, when you can go slow

[Delancey]

As far as I know there was no contract or licensing agreement in this particular case. There wasn't one on my last survey and the report I was given had the same exclusive use language.

No one is going to sue anybody over a $1k survey, that's ridiculous besides being penny wise and pound foolish.

As far as the work being "commissioned" the correct term is "work for hire" in which case the employer owns the copyright. Bill Gates didn't write Windows, he hired a bunch of geeks to do it for him.

https://en.m.wikipedia.org/wiki/Work_for_hire

If someone feels they have some moral obligation to ask the surveyor if they can pretty please sell the survey have at it. In the absence of the aforementioned contract or licensing agreement you might as well give me his "cut".

Facts are facts and facts can't be copyrighted. Only artistic expression. No one owns facts which is what a survey is largely comprised of. Very little artistic expression involved.

As someone who creates intellectual property everyday when I go to work, have to say this is a silly thread. Nothing against surveyors but you guys are really giving them more credit than they deserve.

Copyright fun fact #1 - Titles, like the name of a book or movie, can't be copyrighted. That where trademarks come in.

Copyright fun fact #2 - A copywriter is someone writes writes copy, typically for advertising. There is no such thing as copywrite. No more than there is a civilwrite or a constitutionalwrite.

[Mike OReilly]

Delancey, "work-for-hire" is a specific type of work contract. I've never seen a surveyor contract in this form, but it could be IF that's what was agreed to. And yes, there is a contract in place. The OP contracted the surveyor to do specific tasks. This is a contract, whether it was formally written down or not.

You're quite right. Facts cannot be copyrighted. The op is free to share all the "facts" and information contained in the survey. That's not the same as sharing or selling the actual survey document, which most definitely does fall under copyright protection. The only issue is who owns the copyright.

I agree, this is a rather silly thread. In reality I can't see any surveyor caring that much. If their business somehow depends on doing multiple surveys of the same boat, well, they're already out of business.


Why go fast, when you can go slow