Could MLSs Lose Copyright Protection?

U.S. Copyright Office questions creativity in property listing databases.

Real estate agents can be very creative in the written property descriptions entered into their multiple listing services. It's part of their property marketing talent, and it's one of the many elements that makes MLS databases eligible for copyright.

The courts have previously found that phone directories arranged alphabetically are not copyrightable because they are just a collection of facts in alphabetical order with no creative spark. MLS databases, on the other hand, exhibit creativity in how the MLS chooses what content to include, in what order to place the content, and how to categorize it.

MLSs have long relied on compilation copyright registrations to protect their databases against unauthorized use of the listing content by third parties. The scope of protection for those copyright registrations extends to listing photographs and text descriptions when the MLS also owns the listing content. Individual MLS photos, videos, or content may not be covered by the MLS's compilation copyright if subscribers retain their own individual copyright of their listing information.

Fortunately, courts have consistently held that MLS databases can be protected by copyright. For example, in Montgomery County Association of REALTORS® Inc. v. Realty Photo Master Corp., the court found that the Pennsylvania association's database possessed the requisite spark of creativity based on a number of factors, including MCAR's unique system of abbreviations in organization of the database.

But now, the U.S. Copyright Office is rethinking how MLSs must show that its database qualifies for a copyright registration.

Last summer, the U.S. Copyright Office began questioning MLS applications for copyright. Many MLSs with pending copyright applications received "requests for clarification."

The Copyright Office said in its written notices to the applicants that there was not sufficient proof of creativity in the selection, coordination, or arrangement of their MLS database. MLSs were required to argue their case within 20 days or their application would lapse.

NAR Senior Technology Policy Representative Melanie Wyne and I met with Copyright Office representatives face-to-face in August to discuss MLS applications. We asked for, and the Copyright Office officials agreed to, a grace period during which the Copyright Office would not take any adverse action on pending applications.

The grace period, which is still active and has no specific expiration date, provides NAR and MLSs time to assess the situation and determine the best plan to address it. For example, perhaps describing in the copyright application more specifics of MLS database creativity may be an option to better position MLSs to receive copyright protection.

MLSs strategize on what to do next

In October 2017, NAR hosted a workgroup of brokers and MLS representatives to discuss MLS database creativity and brainstorm strategies for protecting listing content. The meeting was particularly helpful in clarifying the large number of creative choices that are behind the MLS database. We brought this information to our discussions with the Copyright Office in March. The meeting was encouraging and fruitful, and we continue to work with the Copyright Office on this issue.

NAR's efforts are focused on working with the Copyright Office to spotlight the creative choices made by MLSs and develop guidelines to help MLSs show that creativity more clearly in copyright applications.

NAR's basic information on copyrighting an MLS database at nar.realtor will be updated once discussions with the Copyright Office are concluded. Watch for additional updates at nar. realtor/copyright-trademark, and feel free to send questions to me at checht@realtors.org.

Copyright resources

A video about recent actions of the U.S. Copyright Office related to pending MLS database copyright applications, featuring NAR General Counsel Katie Johnson, which aired at the March AE Institute, is available at nar.realtor.

Chloe Hecht is a senior counsel at the National Association of REALTORS®. Contact her at 312-329-8248 or checht@realtors.org.

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