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Do You Know Your Local MLS Photo Copyright Rules?

September 27th, 2010

Last week I got a question about MLS copyright rules. It reminded me that I haven’t talked about this subject in over a year. I’ve done a lot of posts on this subject in the past but I think It’s worthwhile bringing it up again.

The basic issue is this:

  1. MLSs syndicate all their listing information and photos to hundreds of other sites on the Internet.
  2. So their lawyers the are concerned that the MLSs are not left open for copyright infringement suits.
  3. As a result most MLS rules say something like “agents can’t upload copyrighted material” or “the act of uploading photos to the MLS gives the MLS the right too distribute to other real estate sites for the purpose of promoting this listing”. All MLSs have variations.

So I suggest that real estate photographers educate their agent customers about their photo licensing agreement and know enough about your local MLS rules that your licensing agreement doesn’t contradict the local MLS rules. Despite what the legal language sounds like the MLSs are just trying to protect themselves against copyright suits from you or anyone else. They don’t intend to allow some other listing agent to use your photos.

For example here is the NWMLS (the MLS used in the greater Seattle area)  language in it’s rule that governs the use of images:

Rule 192(g) … members may not submit third party copyrighted photographs to NWMLS, if the use of the photograph by NWMLS and its members would violate the copyright. In addition, the Rule now provides that a listing member shall indemnify NWMLS and its members against any claims from third parties arising from the use of copyrighted photographs. Please note that even if the listing member has permission to use a copyrighted photograph(s), NWMLS has not been granted that same permission. NWMLS certainly does not have permission to distribute a copyrighted photograph(s) to its members, who will republish the photograph on thousands of public websites. Accordingly, NWMLS must remove all copyrighted photograph(s) from the database and the listing member may be subject to disciplinary actions.

Yes, I know, this language sounds crazy and it could be written much better, but the lawyers are just looking out for their client (the MLS) and not real estate photographers. I think this is another example of what I’ve recommended. It is in the best interest of real estate photographers to have a current copy of their local MLS photo rules so that if the photographer is going to retain copyright they can make sure their photo licensing terms are consistent with the MLS rules. Don’t leave it to agents to understand this, because most won’t. You don’t want to put your client in a bind because your licensing doesn’t take into account of the specific rules of the local MLS. Also, you don’t want to be surprised by what the MLS does with your photos (syndicate them to many other real estate sites). This crazy legal language is why some real estate photography companies give their customers ownership of the photos they shoot, then this issue goes away.

Just call up your local MLS and ask for a copy of their rules that govern photo usage. Then ask them the questions.

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9 Responses to “Do You Know Your Local MLS Photo Copyright Rules?”

  • One would think that the local MLS would post on their website a copy of the rules pertaining to copyright with respect to copy text, photos and links to videos. One has to be a member to access that type of info. I’m sure that the agreements read like most software licenses (as you’ve shown) and that every agent has read and understands every word… I’ve called the local MLS with questions and asked for a link to the information. What I got was a verbal description and no link. Must admit that I did not push or ask for an email copy. My understanding is that the agent I shoot for will be submitting to the local MLS, Realtor.com and publish to their own website. The third party sites like Zillow and BlokShopper will pick up the information off the local MLS. All that is fine with me. Just don’t sell my work as stock photography or art.

    I suspect the local MLS feels that once they get the images on their servers, they own it (copyright). This is something I need to tie down in terms on a contract. Thanks for the post to bring the need to mind.

    Another option is to seek help from a broker you work with and get a copy of their agreement on the subject. I’ve had talks with agents I work with and it was clear they were foggy on many of the details. I’m hesitant to totally give away copyrights. I need to use the art for my own branding and portfolio.

  • I just dealt with this last month. Here in Canada, when an image is uploaded, it is archived by the MLS, and stored permanently. The problem that I face is agents who relist a home that was listed with an agent who hired me to do the photography. The local real estate board held a meeting and determined that they would not allow any copyright logo on the images as it is advertising, and they would not police the system. They would, however, leave the policing up to me and remove any images that I request be brought down. In this case, it helps immensely to have a local archive of all of my work in RAW format. I have had to contact three agents thus far, and request payment for use of copyrighted images. As a whole, agents seem much more inclined to purchase the rights to the image rather than upload their own, especially if it means a tremendous drop in quality. This has turned into an interesting and unforeseen source of additional revenue that requires little to no time commitment.

  • Daniel – I face a similar issue except my results have not worked out as well as yours. In my case, I called an agent that “hijacked” photos from an expired listing that I had been contracted to take for the original agent. The offending agent had done a couple of tour with us and felt that since see had been a past customer that I should have no objection and she isisted that she would never use us againand she hasn’t, it’s been 2 years.
    Would you be willing to share the contents of the notification that you sent.

  • Bill…That is precisely why I do not enter into a confrontational discussion. Plus it is unknown how many associates she has tainted against you as they lend a sympathetic ear. Rather, I report them directly to the MLS as a violation of MLS rules – not owning the copyright to the photo uploaded to the MLS system. Better yet, the person reporting remains anonymous, and the Realtor has no idea who took the picture, and can only assume was the previous listing realtor where they lifted the picture. Now as the MLS is hammering them, 48 hours to correct and/or threatening with fines, they (and others in the office so it looks like bulk) should be receiving in the mail a flier advertising my services.

    A few things to note:
    1) As stated earlier, learn your MLS Rules. While asking the realtor or broker, it is better to go to the source. It is better to go to the source. Most MLS have web sites that dedicate a portion to administrative issues and provide contacts for questions. Download “Rules and Regulations” (locally is a 33 page pfd document) and do a word search for “Copyright” and “Photographs”.
    2) Most MLS are designed to protect them and the expanded appropriate marketing useage and of course in legaleze. Using the above method, I discovered two favorable points locally. First was the requirement that the person uploading the photo had the legal ownership to do so, and second was a statement expressly prohibiting the unauthorized use of photos taken by the previous listing agent. That is how it becomes a reportable rules violation. It is written in more passive language, and would like it written more explicit “in you face” leaving no doubt that is a violation and fineable offense. That may be something to suggest to the MLS. I know locally, they are concerned about the issue as they have begun imprinting their watermark on photos uploaded.
    3) Finally, part of your standard contract, when defining copyright/license prohibit subsquent sales as you keep your useage within the broader distribution of MLS and IDX marketing. I useally do that. Generally it is not a problem as the Realtor losing the listing is not in the mood to assist the Realtor gaining the listing…but sell is a way to recoup some of the marketing costs from the original listing. Where it comes into play for me, as a Realtor, when I shoot a home for an owner selling it themselves, while having a discussion of marketing costs they incur that are never refunded if it doesent sell, I refund 100% my photo cost to them IF I list the home. (Technically, I don’t charge any of my real estate clients for photos si it is not a big deal – the advantage of wearing two hats) The photos are not transferable to other realtors (my competition) if they list the home.

  • We have rules in the Houston MLS that prohibit one agent from using the digital images of another agent on the same listing. I have gone through listings where I took the photos and checked the archives to see if other agents have used my photos. In cases where other agents have used my photos I have called them to remove the pictures. When this does not work then I call the local association who will then notify the agent of the violation and the offending agent then has 5 days to remove. When they don’t remove then the association can and does fine agents up to $250 per violation.

    If I were to have a formal agreement with an agent I would have him/her sign a contract that he/she has exclusive rights to use the photos for marketing the property. I understand that the images will be transmitted by the association to many other sites on the internet but at such time that the listing sells, terminates or expires then the listing agent must remove the photos. Photos are licensed for the exclusive use of the listing agent and no others, not even the broker. There has been an issue where I was told that the brokerage owns the photos and not the listing agent.

  • @henrique- “but at such time that the listing sells, terminates or expires then the listing agent must remove the photos”. Be aware that on many MLS systems one or more (usually the front exterior- first photo) stays in the MLS for use in the SOLD listings file. Assessors use these after the sale for appraisals. The MLS rules will specify that photos are used in this way.

  • Bill – My approach is somewhat tempered by the small community I live in and the personal nature of business in the area. I have chosen to call offending agents and inform them that I have taken the images, and that full rights to the images returned to me once the contract with the previous agent expired or was canceled. Then I inform them about the practice of the real estate board, and my job as a ‘self monitor’ of the local MLS, and the relationship that I have established with the board.

    Then I present three options: The first being that they can pay me a nominal fee to purchase the rights to the images for the duration of their contract with the home owner. Second, they can remove the images within 2 days and take their own pictures. Lastly, I make them an offer – they can keep the images that they are using already for free, and in return they hire me for another one of their listings.

    The last choice has been the most productive, and has resulted in the acquisition of new clients.

    I hope this helps – I have not run into any agent yet who has gone on the attack like yours did. If that happens, I would definitely aim to come to some sort of mutually beneficial agreement as I would be concerned about the negative publicity that they could generate. In that case, the third option may prove very useful as a compromise.

    All the best,
    Dan

  • I have more trouble with sellers dropping the agent and trying to use the photos on FSBO sites than with other agents stealing the photo. In those cases where an agent has used photo, a polite email or call has taken care of the issue. When dealing with potential clients, I find it better to start low key and only get tuff when necessary.

  • I live in a Condo. I have taken good and high quality photos of the interior of my condo . But getting permission to take photos of the Condo gym, Swimming Pool, Lobby, Tennis court etc is taking time. Plus the conditions are not ideal to take these photos either.

    Can I use the photos available online for this external stuff like gym, swimming pool and lobby from a previous long expired listing ?

    Who owns the rights to these old photos of these external amenities ?

    The photographer who took them 3-4 years back, the previous owner, the previous RE agent, the previous RE broker, the condo board, MLS where the photos were uploaded ?

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