Is Your Photo Licensing Consistent With Your Local MLS?

January 29th, 2008

After participating in a number of discussions about photo licensing with real estate photographers I’ve realized that there is a disconnect going on between real estate photographers licensing and MLS photo usage rules.

Here’s what I think is happening. Real estate photographers are coming up with their photo licensing without knowing what the local MLS rules say about photo licensing (because they typically don’t have access to MLS rules… only agents to). Many real estate photographers have their agent clients sign a photo licensing agreement that says something like “the agent is licensed to use the photos only until sale of the listing…” Yet the local MLS says something completely different.

Unless the agents are paying careful attention and notice that the photographers licensing is inconsistent with the MLS rules the agent is in violation of the photographers licensing because the photographers licensing agreement is signed first.

Here’s what the NWMLS (Seattle area MLS) rule 192 says about photo licensing.

The listing member shall provide one photo of the property for use as the primary photo no later than 5 days after the listing is input into NWMLS’s on-line system. The primary photo shall be either i) a photo of the exterior of the property; ii) a rendering of the exterior of the property; or iii) a photo of the view from the property, and all photos shall comply with NWMLS’s photo policy, as amended from time to time. By submitting photographs to NWMLS, a member warrants that the photographs may be used as set forth herein. By submitting a photograph to NWMLS to be used as the primary photograph for display as such on NWMLS’s on-line system (“Primary Photos”), a member thereby irrevocably licenses NWMLS and its members to use that photograph, during the term of the listing and thereafter, for any purpose related to the listing and sale of the property. By submitting to NWMLS all other photographs, including virtual tours and the like (“Additional Photos”) a member licenses NWMLS and its members to use those photographs, during the term of the listing only, for any purpose related to the sale of the property. Both Primary Photos and Additional Photos may be used by NWMLS and its members, during the term of the listing and thereafter, for off-market purposes, such as appraisals and comparative market analysis. No further license to use photographs provided to NMWLS by a member is intended or implied.

I’ll bet most real estate photographers in the Seattle area don’t realize their “primary photo” is used after the term of the listing. To me rule 192 wording sounds like the photo can even be used to sell the same home next time it’s on the market.

Just to make sure my interpretation of this was correct I ask Carolyn E Wright, Esq over at photoattorney.com if an agent signs a license agreement with the photographer that is inconsistent with the MLS rules if the MLS rules override the photographer’s license. Carolyn’s said, “The answer to your question is “no.” The RE agent likely submits the photos and doesn’t review the MLS agreement or the photographer’s license. But the RE agent has no right to override the photographer’s license. In sum, the RE agent can not give more than he/she gets.

So my advice to real estate photographers that want to have a license agreement with their agent clients is you’d better get a copy of your local MLS rules regarding the use of listing photos and make sure your license agreement is consistent. Otherwise your clients may be in a situation where they can’t upload your photos to the MLS without violating your license agreement.

13 Responses to “Is Your Photo Licensing Consistent With Your Local MLS?”

  • […] Your Photo Licensing Consistent With Your Local MLS? Erin Brereton wrote an interesting post today onHere’s a quick excerptAfter participating in a number of […]

  • […] Erin Brereton article is brought to you using rss feeds.Here is a great article on the latest real estate buying and selling news.After participating in a number of discussions about photo licensing with real estate photographers I’ve realized that there is a disconnect going on between real estate photographers licensing and MLS photo usage rules. […]

  • […] Erin Brereton wrote an interesting post today onHere’s a quick excerpt […]

  • […] Erin Brereton wrote an interesting post today onHere’s a quick excerptAfter participating in a number of discussions about photo licensing with real estate photographers I’ve realized that there is a disconnect going on between real estate photographers licensing and MLS photo usage rules. […]

  • Can’t be public domain. Public domain means that the creator of the image released that image to public domain. If that’s not the case, image remains copyrighted, no matter what any MLS says.

    If the picture is taken from the public space (street). If not, a property release signed by the owner of the property would give the photographer all rights.

    That’s the theory… Practically, I have so many pictures stolen by so many agents that I need to hire someone just to watch that. It’s not worth…

    My tactics is to transform my “illegal clients” into real customers. Most of the time, the “thieves” have no idea that what they do is theft… So, I inform them, ask for compensation and:

    receive compensation (5-10%) and they call me again
    receive compensation (5-10%) never hear from them again
    no compensation but I get a job instead 30%-40%
    no compensation and job after a while 10-15%
    nada zip zilch – the rest of them :)

    It’s a great resource to look for in slow times… like now… :)

  • Interesting point Larry, and one that admittedly I haven’t put a whole lot of thought into. I don’t have time for a full response at the moment, but in case anyone is curious about other MLS’ rules, here’s our local one:

    http://mls.caar.com/images/Forms/MLS%20Rules%20and%20Regs.pdf

  • Interesting that two Charlottesville folks find their way here.

    From the Charlottesville MLS rules, with the assumption that they’re probably close to NAR standard –

    Section 9.0………………………………….. Ownership By the act of submission of any property listing data to the Association MLS, the Participant represents that he has been authorized to grant and also thereby does grant authority for the Association to include the property listing data in its copyrighted MLS compilation and also in any statistical report on “Comparables”.
    Section 9.1………………………………….. Copyrights All rights, title, and interest in each copy of every Multiple Listing compilation created and copyrighted by the Charlottesville Area Association of REALTORS®, and in the copyrights therein, shall at all times remain vested in the Charlottesville Area Association of REALTORS®.

    10.2 …………………………………………….(truncated) Nothing contained herein shall be construed to preclude any Participant from utilizing, displaying, distributing, or reproducing property listing sheets or other compilations of data pertaining exclusively to properties currently listed for sale with the Participant.

    How does the above jive real estate photographers’ copyright protections?

  • […] Source and Read More: Photography for Real Estate […]

  • My solution to this problem has been to split the liscencing according to the use of the images. My contract is a little more specific, but each pricing web page has the summary: “The images are licensed to the listing agent for unlimited use in all media to promote and market the listing, including indefinite archiving after the property has sold, as well as for other marketing uses for a period of ________.”

    So for the listing itself, the photos are part of the historical record, and the agent/MLS can keep them forever. If s/he wants to show a feature sheet five years from now, that’s fine. But they are restricted in how they use the images in promotions that are not directly related to the property, i.e., mailouts and their web pages.

    It’s fairly typical here to see condominiums being sold using the same exterior photo, even when agents belong to different offices and companies. None of mine, fortunately, but there’s plenty of education to be done.

  • Curious, if you could rewrite the MLS rules to something that would still work for real estate agents and not beat up the photographer’s rights, how would you rewrite them?

  • @ Jim,

    It seems a little ambiguous in regards to rights held by any party beyond the “participant” (i.e. the agents/brokers?). However, the statement about granting the association full rights to use any listing data, more or less automatically, doesn’t provide much provision for copyright holders of listing data (e.g. photographers) beyond the agent. The value of an image easily increases when its usage increases.

  • I believe the local MLS states that the photos become the property of the board. How can the board take ownership without the written consent of the photographer? Would it hold up in court?

  • @Paula,
    It’s the agent that uploads the photos that has the responsibility of making sure that the MLS rules and the photographers licensing is consistent because they are the only party that knows both.

    You are right the agent cannot license the photos to the MLS if the photographer claims to own the copyright.

    Currently many real estate photographers don’t ask the agent to sign a written licensing agreement and if they do the agent doesn’t understand the MLS rules so they don’t understand the implication of signing the photographers agreement. It’s currently a “bag of worms” but my point is that agents are open to legal actions from the photographer unless they pay attention.