What Arkansas REALTORS® Association’s Copyrights Mean to Members
By Joel Carter, Quattlebaum, Grooms, Tull & Burrow, PLLC
As you may know, Arkansas REALTORS® Association’s Real Estate Contracts (the “Forms”) are copyrighted by ARA. ARA sells copies of the Forms to members and non-members for use in connection with various real estate transactions. Due to several members’ confusion concerning ARA’s copyrights in the Forms, the Executive Committee asked us to provide a brief overview of ARA’s copyrights and to explain why ARA enforces them. We will start with a summary of relevant copyright law then provide specific examples of actions that violate ARA’s copyrights. As you will see, the Executive Committee’s decision to enforce ARA’s copyrights in the Forms provides significant benefits and protections to members.
In the United States, a copyright does not require any special filing or approval; as long as a work is original, the author automatically gets a copyright. With respect to copyrighted writings, the copyright owner can prevent others from making copies of the writing, from publically displaying the writing (including displaying the writing on a website) and from altering the writing. Accordingly, violations of ARA’s copyrights include: (1) copying the Forms in whole or in part; (2) extracting language from the Forms for the purpose of forming a contract; (3) altering the wording of the Forms, including their serial numbers; (4) providing copies of any portion of the Forms to third parties, including making them available on third-party websites.
Violating ARA’s copyrights can result in civil liability for actual damages, lost profits, costs and attorneys’ fees, as well as criminal liability. Persons who violate ARA’s copyrights may also be held responsible for ARA’s legal fees and court costs.
Some members have suggested that after they purchase the Forms, they may do with them as they please. This belief is legally inaccurate, harmful to ARA and hazardous to those who hold it. As described above, copying, altering, excerpting or publically displaying the Forms after they are purchased violates ARA’s copyrights. ARA enforces its copyrights in the Forms to protect its members and to ensure it has funding necessary to perform beneficial services for its members.
Pursuant to decisions of the Arkansas Supreme Court and regulations promulgated by the Arkansas Real Estate Commission, Arkansas real estate agents and brokers can practice law on a limited basis by filling in the blanks of standardized real estate forms (such as the Forms) when such forms are used to complete simple real estate transactions and have been approved by a licensed Arkansas attorney. See, AREC Regulation 10.10(c) and Pope County Bar Association, Inc. vs. Suggs, 724 S.W.2nd 828 (1981). This ability allows agents and brokers to complete the Forms without hiring a lawyer. When agents and brokers alter the Forms beyond filling in blanks or excerpt provisions from the Forms for the purpose of forming a contract, they may be engaged in the unauthorized practice of law. Furthermore, ARA fears that rampant altering of the Forms and the resulting unauthorized practice of law could cause the Arkansas Supreme Court or the Arkansas legislature to rewrite the law to prevent real estate agents and brokers from completing lawyer-approved forms in connection with real estate transactions. This would lead to a vast increase in transaction costs to consumers who would be forced to incur substantial legal fees for simple real estate transactions. By enforcing its copyrights, ARA protects members from engaging in the unauthorized practice of law and hopes to maintain the ability of agents and brokers to complete lawyer-approved real estate contracts instead of needing to pay a lawyer to perform the same service.
We hope this article helps explain ARA’s copyrights in the Forms and the importance of enforcing such copyrights. We believe that most real estate professionals will appreciate the wisdom of enforcing these copyrights for the benefit of members.