Copyright is the branch of intellectual property that protects creative works. A copyright owner has exclusive rights that allow control in how the copyrighted work is used by others. For example, using a photograph without permission in an advertisement, or playing music without a license at an event, may create liability for copyright infringement.
Real estate professionals must be cognizant of copyright issues when it comes to listing content, most notably in connection with listing photographs. As original works of authorship, listing photographs are copyrighted, and the owner may dictate how the photos are used.
Improper use of listing content can create legal problems for agents, brokerages and MLSs. It's crucial that real estate professionals know their rights regarding listing photos and listing content, as well as risk management strategies that can be used to avoid copyright infringement. Complying with the Digital Millennium Copyright Act ("DMCA") will also protect website owners from a third party's misuse of photographs within an IDX feed.
Do you know your listing content rights? Explore legal resources on copyright issues for real estate professionals.
Copyright risk management strategies will help members and associations minimize liability for copyright infringement claims.
Creative works are protected by copyright. Don't use another person's copyrighted photograph, painting, music or words without permission because doing so could result in liability for copyright infringement. Many real estate professionals own websites that feature an IDX display, and infringing materials may inadvertently appear on those websites through the IDX display. The Digital Millennium Copyright Act ("DMCA") protects website owners from copyright infringement liability for content posted to a website by a third party provided the website owner complies with the necessary requirements.
- Window to the Law Video: How to Avoid Copyright Infringement
- Window to the Law Video: Copyright Infringement Safe Harbor
- Window to the Law Video: Changes to DMCA Safe Harbor
- NAR Seeks Improvements to the Digital Millennium Copyright Act
- REALTOR® AE Magazine: Online Copyright Rule Tune-up
For decades, MLSs have relied on copyright to protect the MLS database. Learn more about why such protection is important for MLSs, participants and subscribers.
- Video: Copyright and the MLS Database
- Copyright Office Review of MLS Automated Database Copyright Applications
- Video: Protection from MLS Copyright Infringement Lawsuits
- Copyright Considerations Related to Proposed Changes to Display of Sold Information
- REALTOR® AE Magazine: Could MLSs Lose Copyright Protection?
- Copyright Considerations for MLS Photographs
- Copyright Registration Procedures for MLS Databases
- Case Summary: MLS Copyright Lawsuit Dismissed
The improper use of listing photographs is a topical issue for the real estate industry. A crucial risk management strategy for all real estate professionals is to know what rights you own in your listing photographs.
- Who Owns Your Property Listing Photos?
- Window to the Law Video: Listing Photo Copyright Issues
- Sample Listing Photo Agreements
- Case Summary: Listing Photos Infringe Copyright
Other Listing Content Issues
Additional resources about managing and protecting listing data.
None at this time.
What is the fundamental issue?
For decades, many MLSs have obtained automated database copyright registrations protecting the arrangement, selection, and coordination of their MLS compilations. If the MLS owns all the underlying components of the database – meaning, the photos, text, and other listing content – then this copyright registration also gives those MLSs copyright protection in that content as well. It appears that a great number of MLSs obtain ownership of all listing content, so they’ve long viewed this type of copyright registration as an effective protection mechanism against a third party’s unauthorized use of the listing content.
Recently, the Copyright Office has issued requests for clarification to hundreds of MLSs regarding their MLS database copyright registration applications. The Office asserts that the applications do not demonstrate sufficient creativity in the arrangement, selection, or coordination of the compilation. This response is viewed as a major sea change for MLSs who’ve been granted this type of copyright protection for decades.
I am a real estate professional. What does this mean for my business?
Real estate professionals create valuable content/intellectual property that is increasingly distributed on the internet. That content must be carefully protected from theft in a manner that does not create serious unintended consequences for members doing business on the internet. Our Multiple Listing Services (MLS) members support continuing protection for compliations of data as REALTORS® compile and utilize collections of information every day through the use of MLSs. These compilations had traditionally been thought to enjoy copyright protection. The 1991 Supreme Court ruling in the Feist v. Rural Telephone Service Company court case made it less clear whether this type of information is protected.
NAR has met with Copyright Office officials on multiple occasions. NAR was able to secure a grace period during which the Copyright Office would not take any adverse action on pending applications. This grace period is intended to allow NAR and our members time to assess the situation and determine the best plan of action for addressing it.
The Office has since agreed that MLS databases are sufficiently creative to warrant copyright protection. Now NAR is seeking the Office’s approval of guidance documents that will enable MLSs to articulate sufficient creativity in the copyright registration applications.
Federal Technology Policy Committee