Listing Photos Infringe Copyright

Read the full decision: Adams v. Agrusa

California federal court rules that salesperson infringed another firm's copyright by using photographs of property in the MLS that the other firm had copyrighted when it had previously listed the property for sale.

A real estate brokerage firm (“Copyright Holder”) received a U.S. Copyright for photos of a property entitled “Staged Photos”. The Copyright Holder entered into an agreement with the owner of the property (“Owner”) to list the property for sale. The Copyright Holder entered the property into the MLS with 20 of the copyrighted photos (“Photos”) with a copyright registration symbol affixed to each of the Photos. The Owner later canceled the listing agreement and entered into a listing agreement with a new brokerage (“Brokerage”).

The Brokerage assigned the listing to a salesperson (“Salesperson”). A member of the Brokerage downloaded the Photos from the MLS and removed the copyright symbol. The Brokerage then gave the photos to the Salesperson and told her to use the Photos in the MLS listing for the property. The Salesperson entered the property into the MLS with the Photos. In addition, the Owner posted five of the Photos on its website.

The Copyright Holder filed a lawsuit against the Salesperson, Brokerage and the Owner, alleging copyright infringement for its unauthorized use of the Photos. In order to establish a claim for copyright infringement, a party must show ownership of a valid copyright and that the other party violated one of the copyright holder's exclusive rights. A court has wide discretion in awarding damages for infringement, with statutory damages ranging from $750 to $30,000 per work. However, if the infringement was innocent, the court may award damages as low as $200.

There was no dispute that the copyrights were valid and the Copyright Holder's copyrights had been infringed. The trial court ruled that the Salesperson was an innocent infringer because the copyright symbol had been removed from the Photos and there was no other evidence that the Salesperson knew about the copyright. The court awarded the Copyright Holder $250, finding that $250 was the approximate cost for having a property photographed and the Salesperson's use of the Photos constituted a single infringement by the Salesperson because the photos were all part of the same marketing campaign. The Owner never entered an appearance and so the court entered a default judgment of $2000 against the Owner. The Copyright Holder appealed.

The United States Court of Appeal for the Ninth Circuit affirmed the trial court. The court affirmed the trial court's ruling that the Salesperson was an innocent infringer, as the Copyright Holder had failed to produce any evidence that the Salesperson knew her use of the Photos constituted copyright infringement. The court also affirmed the trial court's ruling that the Salesperson's acts constituted a single act of infringement, since the Photos were part of the same marketing compilation for the property. Therefore, the trial court's rulings were affirmed.

Adams v. Agrusa, 693 F. App'x 563 (9th Cir. 2017)

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