Convoluted copyright issues and real estate porn site profits

In part one and part two of AG’s series unveiling the broken chain of copyright ownership of real estate photos, awareness of the issue has caused a ripple effect with various entities arguing ownership of the copyright.

Here is how the chain of copyright ownership has become broken:

• Some argue that a homeowner owns the copyright to all images created based on their property, but in no listing agreement that we are aware of does it say that photographs or likenesses of the listing remain the property of homeowners.
• Others say the real estate photographer who took the images retains the copyright, but it depends on the contract (or terms included on a paid invoice) as to who owns the copyright, and if the Realtor who hired the photographer has a full license, limited license, or no license to the copyright (which would defeat the purpose of hiring a photographer). Many photographers give a limited license and spell out the specific allowed uses (entry into MLS, flyers, IDX, syndication, but not resold or repurposed).
• Some say the listing agent owns the images because they paid for them, but as mentioned previously, that depends on the agreement between the agent and the photographer.
• Other entities say the broker of the listing agent retains the copyright, as they are liable for all uses of the image, including misrepresentations.
• This is where it gets complicated: some Multiple Listing Services (MLSs) outline in their Terms of Service that any images uploaded to the MLS transfers all copyrights to them, with the defense being that they must protect from scrapers and content thieves.
• Some real estate syndication sites are even confused internally about whether or not they own the copyright.
• Blogs that generate what is known as “real estate porn” by featuring sexy photos from the MLS, real estate listing site, IDX or elsewhere, often believe they have the right to use the content, but do not necessarily claim copyright ownership (rather seem to overlook its existence).

Each of these seven entities argues that they do or should own the copyright to all images of a specific listing, and each time a photo is uploaded then syndicated, it is questionable as to whether or not the uploader has the rights to transfer the copyright or not, depending upon their agreements.

Show me the money

While many of these entities are simply looking to protect the integrity of a real estate listing, other entities are less clear with their intentions. First Multiple Listing Service (FMLS), which was the catalyst for this series, uses the CoreLogic Fusion MLS product, which one source says is structured as FMLS sub-licensing (selling) to CoreLogic, which could be a reason for requiring a transfer (legitimate or not) of copyright ownership.

Another pain point for the industry is the “real estate porn” blog posts that take real estate photos and reuse them to increase traffic to the site and get more eyeballs on ads on the sidebars, none of which is likely shared with whoever the rightful copyright owner is.

Real estate porn – Trulia Luxe blog

First, take a look at Trulia Luxe, a blog devoted to high end listings with extremely high quality images by professional photographers. In this case, all images appear to be pulled from the Trulia website, as the listing has been syndicated to them. The blog post ends with a call to action to click to see the listing on Trulia and while the home’s designer and construction company were mentioned, there is no allusion as to who the broker or listing agent is.

“Once photos are on Trulia we have the rights to use them,” Trulia spokesperson Ken Shuman initially told us, “Per our terms of service, once photos are on Trulia we have the rights to use them,” but with further pressing, the legal department noted, “We get our pictures (and other content) from a variety of sources, including public domain sources, sources that license the content to us under our [sic] the Trulia feed agreement, and under licenses from real estate listings sources like brokers, listing aggregators, etc.”

The company’s Terms of Service says, “Trulia does not assert copyright or grant any rights to the underlying images or descriptions of real estate listings that may be contained in our search results and that we derive from the source Web site or information provided by the Web site owner. Trulia uses these images and excerpted descriptions solely as necessary to generate search results as a navigational tool to direct you to the originating Web site. Any use of the source images or descriptions is subject to the copyright owner’s permission and/or the requirements of applicable law. Trulia does assert copyright and reserves all right to the search results and associated compilations.”

There is clearly a conflict as to what the rights are, and we have not reviewed the “Trulia feed agreement” with MLSs, and other sources, but the Trulia Luxe blog policy appears to be to simply pull images from their website:

Real estate porn – Curbed, Inman

A well known source for real estate porn is the Curbed blog, which features celebrity listings, and listings that are unique and interesting, generating a great deal of traffic surrounding the listings. The sources vary, unlike Trulia’s blog, sometimes using images from the listing agent’s site, or real estate search sites. AGBeat reached out to Curbed who has not responded regarding the company’s policy regarding verification of copyright ownership.

For these listings, the photographer, Realtor, broker, MLS, or even real estate search site could claim ownership of the copyright. It is possible that the company receives permission in writing for each listing featured on the site, but like most real estate porn sources, a link to the original location of the listing is what many believe suffices as permission.

To make the real estate porn issue more convoluted, other sites get permission from Curbed to use their content featuring listings, so there are other locations that are generating other revenue from these listings.

Note that the site has paying advertisers, so the real estate porn that is generating traffic is also generating revenue, but it is unlikely that the listing agent, photographer, or information source sees any revenue from their works.

To make the real estate porn issue more convoluted, other sites get permission from Curbed to use their content featuring listings, so there are other locations that are generating other revenue from these listings, with policies (or a lack thereof) regarding how copyright permission is granted, and if the person giving permission even has the actual copyright ownership.

Real estate porn – AOL Real Estate

AOL Real Estate gives credit to the listing broker on images shared in their real estate porn blog posts, but has not responded to our request for comment regarding their policy in gaining permission or vetting the legitimacy of who owns the copyright. They go out of their way to mention the listing agent and link to the actual listing not only on the agent’s site, but the AOL Real Estate (powered by Move, Inc., the operator of Realtor.com) listing. But, like their counterparts, the real estate porn is designed to generate massive amounts of traffic to sell advertisements on the sidebars.

Real estate porn – Realtor.com

Although Realtor.com has an operating agreement through the National Association of Realtors (NAR), who retains partial ownership of the site, they too offer a Celebrity Real Estate feature designed to generate traffic in order to fetch higher ad rates. Realtor.com has not released a response yet as to what their policy is in vetting copyright ownership, nor have they responded regarding whether or not syndicating content from the MLS directly to Realtor.com gives the search site any ownership of copyrights.

Getting to the solution, clearing up the copyright issues

There are two problems that are running wild in the industry – first, everyone thinks they own the copyright, and it’s not possible for all parties to maintain ownership.

Second, real estate porn blogs appear to lack any vetting process, and even if they obtain permission from the broker to “promote” their listing, it remains unclear as to whether the broker has ownership of the copyright, or if they already assigned it to the MLS, or even their photographer.

As brokers are becoming hyper aware of where their listing data goes and what terms are associated with syndication, they must also know the terms of service when signing agreements with a photographer, uploading photos or tours to the MLS, opting in to listing syndication, or giving permission to a real estate porn blog to use their glossy photos to generate ad revenue.

“We [the NAR] do not believe any MLS should be insisting on owning a copyright as a condition of uploading a listing to the MLS,” said Laurie Janik, the General Counsel for the National Association of Realtors.

While FMLS (the catalyst of the copyright debate) is not associated with the NAR, the Association has a policy wherein brokers cannot give up their intellectual property as a condition of marketing a property.

Debra Boza-Valledor, the COO and Chief Marketing Officer for the Miami Association of Realtors (MAR) tells Miami Agent Magazine, “Before agents even consider uploading images, they must be absolutely sure that they are authorized to use the images. Once photos are posted, though, MAR’s policy is exactly that of FMLS, details of which are explicitly explained in the MLXchange contract. Photos are not limited to the MLS itself, but they can only be transmitted via approved methods, such as an IDX feed. Therefore, it will be the agents responsibility, Boza-Valledor said, to be aware of the policy, and how it may impact images and photographers.”

“I think the smarter agents know that,” Boza-Valledor added. While the MAR’s attitude may be viewed as cavalier, given that their terms are that of the FMLS, both NAR, MAR, and AG agree that all parties need to take some time to review their agreements and make sure copyright ownership is clear cut.