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.