In the real estate industry, brokers are growing acutely aware of what it means to syndicate listings and what it entails both technically and the positive and negative ramifications of sharing data, with some choosing to stop syndicating listings, primarily to Zillow, Trulia, and Realtor.com.
This awareness has real estate professionals and brokers considering what other contracts that they have entered into, with a new concern heating up concerning questions over who owns the copyright of real estate photographs. The catalyst was a recent email from the First Multiple Listing Service (FMLS) to members, notifying them that all photos would soon be watermarked, pointing to a recent escalation in copyright issues, noting that like many MLSs, they would watermark in an effort to protect content from “scammers, scrapers, etc.”
Also in the email to FMLS members was a notification that all uploaded content, photos and tours is, noting that uploading to the FMLS transferred copyright from the uploader to the MLS. Georgia Realtor, Lane Bailey noted that when transferring ownership, the wording reveals that FMLS will grant back a non-exclusive permission to use the images. Additionally, because this area (like many others across the nation) is served by more than one MLS, similar wording in other MLSs can put Realtors in violation of the Terms of Service when uploading the same photos to both MLSs. Bailey said, “After uploading them to one, we no longer own them, and therefore can’t transfer ownership to the other.”
The extent of the copyright dilemma
After our original story was featured on the Photography for Real Estate (PFRE) website, one reader said in comments that he has responded by submitting the issue to the Copyright and Government Affairs department of the Professional Photographers of America, an industry association and lobby.
PFRE Founder, Larry Lohrman said, “Here’s the situation: 1. Real estate photographers believe and behave like they own the copyright (which I believe they do if this was settled in a court case). 2. Listing agents for the most part don’t care about, pay attention to or understand copyright and photo licensing. They just do whatever’s necessary to get their listing online ASAP. 3. MLSs are concerned about the potential legal risk of having copyrighted photos that they don’t own the copyright to in their listing databases that they syndicate to large number of real estate sites, so they say in their terms of service that the act of uploading photos transfers the copyright to the MLS or specify that no copyrighted photos can be uploaded to their MLS.”
Florida real estate photographer Mike Yother takes it further and asks on the PFRE site, “if the photograph has had the power lines in the backyard or the athletic stadium cloned out and the MLS claims they own the photo, are they now the liable party when the seller sues them for misrepresentation?”
Additionally, copyrights of real estate photos extends not just to real estate syndication sites, but to other types of web properties. Is the “real estate porn” of high-end listings and sexy houses across America that are featured on blogs in violation of whoever argues they own the photo’s copyright, be it the MLS, broker, agent, homeowner or photographer? In that vein, when blogs and websites “feature” homes, are they also assuming liability for any potential misrepresentation as addressed by Yother?
Suzanne at PowerVision360.com said, “Did you know that with some upgrade photo companies – when you upload their terms of service are that they can do as they please with the photos – so the FMLS is not that far out of line. Most companies that offer a free album or gallery have this clause in their terms of service. It’s only when you pay for the PRO service that you retain the rights to your photo gallery.”
Several potential solutions
Currently, photographers often use a service called “Digimarc” which adds a digital watermark that cannot be seen with the human eye, but offers tracking of any use of the image on any website online, so that any use of a photo that has a copyright can be found and the copyright owner can reach out to the violator and request removal or pursue any damages.
Mark Miranda at Miranda Multimedia said that the Wichita Area Association of Realtors (WAAR) has enacted a policy wherein agents are required to either own the images they upload or have a written release to use them. This policy came about after an agent posted a Getty Image without permission and Getty directly contacted the broker and WAAR. Miranda notes that the resulting policy includes a $1,000 fine per image uploaded to the MLS without ownership or written permission for use. “In other words, if you steal all 24 listing photos from the listing of an agent who previously had a property listed, or that someone else commissioned to have taken, you can be fined $24,000!”
The solution this photographer uses is granting a limited, non-exclusive license to the agent to use the images for the purposes of marketing the home, and an unlimited non-exclusive license to WAAR for the purposes of syndication to IDX sites through the MLS. Miranda’s invoice to agents notes that payment of the invoice is an accepting of the licensing terms.
Miranda notes, “The terms printed on the invoice indicate their license to use the images, WAAR’s license to use the images, and an indemnification of WAAR should the agent violate the licensing terms. At first I was leery of providing WAAR with an unlimited license, but that’s far better than assigning all rights to them. In reality, they have no need or desire to use the images for anything other than syndication anyway.”
Lohrman said, “This can’t be rocket science! I cannot see why it isn’t possible to have a TOS agreement that works for all parties here,” proposing that it would say “the photographer or whoever created the photos owns the copyright (standard intelectual property law since they created the photos) and the creator of the photos grants a limited use license to the listing agent and the MLS that allows both the agent and the MLS to do whatever they need to do to take care of business. The listing agent would have the photographer sign this page and adds it to the 30 or so other pages of the listing agreement that they file with their broker and the MLS when they take the listing.”
With the attention this matter is receiving, it is possible that the National Association of Realtors (NAR) could get involved, but at a minimum, local real estate associations and MLSs will likely be reviewing the language of their Terms of Service.
Lani is the COO and News Director at The American Genius, has co-authored a book, co-founded BASHH, Austin Digital Jobs, Remote Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.
brandonzharris
May 29, 2012 at 4:52 am
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tinainvirginia
May 29, 2012 at 10:18 am
Thanks for bringing this to light. I just sent it to our photographer to see if we need to amend our agreement. I always thought we were ok by carefully reading TOS prior to uploading; however, I realize that is NOT the case when we are dealing with multiple MLS’s. Yuk…..another mess.
MitchellSkinner
May 29, 2012 at 10:28 pm
Thanks for bringing attention to this issue. Copyright ownership of listings, including pictures, can be complicated because there are often times several authors. The strict liability nature of a copyright infringement cause of action further complicates the problem (which I’ve written about here https://www.mlstesseract.com/2012/05/getty-images-mlss-and-strict-liability.html). That said, it is possible to sort through these issues with proper agreements that allow each party to make their desired uses of the photos, and retain or assign copyright (depending on the parties’ goals).