There’s no doubt that gorgeous photos of homes help boost real estate sales. The real estate photography business is booming as more REALTORS® put down their smartphones and hire professionals to shoot listing photos. As a result, problems (even lawsuits) can arise over photo copyright when images are used without permission.
“Copyrights for property photos and liability for copyright infringement are definitely growing concerns right now,” says Rodney Gansho, Director of Member Experience at the National Association of REALTORS®.
To address rising concerns, the National Association of REALTORS® Board of Directors in May approved changes to MLS policy aimed at increasing awareness of the need to grant the appropriate license to the MLS to use listing photos.
Although the policy change is educational and does not require MLSs to change their rules, it does authorize them to establish local rules around listing photo copyrights. For example, an MLS can require participants to confirm that they have permission to use their listing photos as well as permission to grant their MLS license over those photos enough so that the MLS can store, reproduce, compile, and distribute listing information.
MLSs may, through a pop-up window or message, require members to indicate that the necessary licenses have been obtained at the time the broker files listings. MLSs can further reaffirm this obligation in their participant or subscriber agreements.
“The vast majority of large MLSs understand the potential danger of listing photo copyright infringement and are working on addressing it,” says Rick Harris, ABR, CIPS, 2016 chair of NAR’s Multiple Listing Issues and Policies Committee and a broker with Coldwell Banker Pro West Ashland in Ashland, Ore.
Harris’ MLS, Southern Oregon MLS, is working on several fronts to raise awareness of photo licensing and to offer convenient ways for participants to acquire licenses. Along with broker education forums, the MLS is adding photo licensing language to its listing agreement form, so when sellers provide the photos, they grant the license to use them right in the listing agreement.
“To effectively license photos taken by agents,” says Harris, “we’re providing brokers with language that they can add to their independent contractor agreements with agents.”
The MetroTex Association of REALTORS® has had a listing photo copyright policy in place for several years advising participants and subscribers to obtain written agreements with photographers, says Cathy Faulkner, RCE, the association’s MLS director. Participants must also grant the MLS a nonexclusive license to publish the photographs.
“If an MLS has no rules or policies related to copyright license, they could leave themselves open to copyright infringement claims since they have not given participants any direction or policies to refer to,” says Faulkner.
Do members understand listing photo copyright?
MLS participants can grant photo license to the MLS only if they own the photo or have obtained the rights to use it. This is often the point of confusion with many members, who may often cut and paste listing photos from their MLS or the previous agent’s listing or use photos from a home owner, who may not have the license to them.
Carl DeMusz, RCE, president and CEO of the Northern Ohio Regional MLS, says lately he is seeing more members lift photos taken professionally for a builder’s developments or condominium projects and use them in their own listings without obtaining a license or permission. “They think they are immune from liability because another agent or broker also used the photos,” he says. “Here at the Northern Ohio Regional MLS, we know we have our work cut out for us in getting our members up to speed on these issues.”
At MetroTex, Falkner says most MLS subscribers are aware of photo ownership because she helps settle frequent disputes involving agents who use the photos of previous listing agents. “We require that agents have the written permission of the previous listing participant when using photographs from a previous listing.”
Licenses clarify photo ownership
There are three types of agreements an MLS participant could hold for the use of photos in their marketing that they did not take themselves; a work-for-hire agreement, an assignment, or a license. (NAR provides sample agreements at nar.realtor.) License agreements stipulate that although the photographer still owns the photographs, he or she grants an exclusive license to display and distribute them. Some photographers may put additional restrictions in a license, such as limiting a photo’s use to the marketing of active listings only.
Faulkner cautions her MLS subscribers to make sure photo licenses provide perpetual rights to the photographs (so they can be used in the MLS’s historical data) and exclusive rights (so they can’t be used elsewhere). “We have seen cases where photography companies sold the rights to listing photos to outside sources for other uses or sold the same photographs of a listing to the new listing agent who is listing that same property,” she says.
Because exclusive licenses can get complicated, MLSs often recommend that brokers acquire ownership rights, but photographers increasingly balk at this request.
“The professional photographer I use tells me that photographers’ rights are becoming a huge topic within the photographer community and there are photographer advocacy groups looking to protect the rights of their industry members,” says Harris.
Pixsy, an international organization that hunts down unlicensed image use on the Internet, says 7 percent of the cases it pursues on behalf of clients are related to real estate.
Getting photographers on your side
Harris says the use of professional real estate photographers is definitely growing, and his MLS plans to start a dialogue with area photographers to craft a standardized licensing agreement.
“In my marketplace, there’s one professional photographer who probably does a third of the professional photos in our MLS, and he doesn’t issue any type of specific agreements. So, if he wanted to take us down, he could,” says Harris. “If real estate photographers who haven’t granted any licenses go looking for an income stream, we’re it.”
At the Milwaukee-area Metro MLS, CEO Christopher Carrillo says he also plans to reach out to area photographers and explain how listing data and photos are distributed and used and how photographers may benefit from having the MLS pursue copyright enforcement on their behalf. Based on the outcome of those talks, Metro MLS may develop a preferred photographer list that members could use “but certainly would not be required to choose from,” he says. “If all of that fails, we may look at going old school and hiring photographers ourselves and offering it as a service.”
Protecting MLSs from participants’ mistakes
For MLSs, federal law can be interpreted to protect them from copyright liability if their participants upload copyrighted material without permission. Yet to be protected from liability, MLSs must comply with the “safe harbor” procedures of the Digital Millennium Copyright Act, which also covers participants and subscribers hosting an IDX display. A 2015 change to NAR MLS policy highly recommends that associations comply to protect their organizations.*
Yet compliance with federal law is no guarantee against a lawsuit. Copyright infringement of listing photographs is central in ongoing legal action between Illinois-based real estate photography company VHT and Zillow. According to the lawsuit, VHT retains ownership of its listing photographs and grants only nonexclusive licenses to brokers to use the photographs solely in connection with marketing active property listings. In the complaint, VHT alleges that Zillow used its photographs without authorization in connection with sold properties and on Zillow’s home design website. The case is still pending.
MetroTex had an incident where a listing agent of a multimillion dollar home used a photograph that had a copyright from a well-known national photography company. “That photography company found their photo on an IDX site and made an attempt to collect fees for the use of it from the subscriber providing that IDX site,” says Falkner. “I contacted the listing agent immediately and let him know that he had put the entire population of IDX sites at risk since he had not obtained the proper license to use that photograph. Luckily, we were able to resolve the issue quickly since the seller was an attorney and did actually own the rights to the photograph (although he had not signed a photo licensing agreement with the agent). I did break a little sweat over that incident.”
Reducing risk before it’s a crisis
Although no MLS has been sued over distributing or posting a copyrighted photograph without permission, the potential is there, says Harris. “I understand a lot of AEs ask why we’re pushing this when it’s not really an issue now, but this is one that could blow up in a heartbeat. So our approach has been better safe than sorry.”
The goal of the recent MLS policy changes is to make sure that brokers are informed, understand the issue, and seek written permission for their own protection—a practice that should extend to all facets of their business, including the images they use in print materials, post on their websites, and use in their blogs and on social media. The policy changes also encourage MLSs to create tools that make it easier for subscribers to reduce their copyright liability.
*See Section 11, Ownership of MLS Compilation and Copyright section of the NAR model MLS Rules and Regulations (all types), found in the Handbook on Multiple Listing Policy