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Will A Copyright Watermark Protect Your MLS Photos?

May 2nd, 2012

Chad Jones asks:

I had my images stolen of a 12 million dollar malibu home by the Daily Mail UK a few months ago. They stole the images from the SoCal MLS. The image size has gone up on all the listings uploaded to the MLS. On top of sites like realtor.com creating one click videos and what not with the images they get from the MLS. Along with the syndication mess that is rampant. You really never know where your images may end up. Watermarking wont stop the stealing, but it could deter it.

Should I consider start watermarking my images? What would be the pros and cons with regards to the RE photo niche and the clientele we have in your opinion? What do others do that you know of?

Here is my response to Chad:

The first consideration is the rules your local MLS. Many, if not most MLSs claim that the act of uploading a photo to the MLS transfers the copyright to the MLS even though in legal fact they are just licensed to use and syndicate them for the duration of the listing. My local MLS here in Oregon actually puts their own copyright notice on listing photos when they are uploaded (See the example photo above I shot  a few weeks ago of a commercial property. Even though the agent agreed to my TOS that said that I retain the copyright, the MLS actually puts a copyright notice on all photos uploaded to the MLS). Here is a thread on the PFRE flickr group that discusses this issue and gives many examples of the kind of MLS TOS statements I’m talking about.

I’ve heard of many cases where real estate photographers report that their copyright watermark was removed and the MLS’s copyright was added. The biggest problem that putting your copyright watermark on a photo intended for upload to a MLS is that it makes it difficult for your client to assert that they own the copyright which many MLSs require. If you claim the copyright and the MLS claims the copyright the agent is in a bind but will do whatever is required to put the property on the MLS.

So yea, this is a crazy mess and Most MLSs have crazy practices that probably will not stand up in court. But who’s got the time or money to fix all this. There are actually a few MLSs that actually have it together and only claim they have a license to distribute and syndicate your photos for the term of the listing.

The ones that are claiming they own the copyright are doing so to protect their asses from people like you that may sue them for having your photos stolen from their sites or sites they syndicate to. The Swampman summarizes the situation nicely at the bottom of the PFRE flickr group thread about this when he says:

Having experienced this myself and reading many times from others who have also had to deal with legally questionable MLS practices, I have sadly come to the conclusion that this will not end until someone or some group files a successful lawsuit against these offending MLS’s. My hope is that it won’t end in enormous damage rewards but will get NAR, the FTC, or some other govt agency to develop a uniform MLS policy which protects the rights of the independent photographers (not the ones under work for hire agreements) as well as the data the MLS feels it has a need to protect. Until then, I think we’ll continue seeing posts like this over and over.

Sorry Chad, there  just isn’t a simple answer to this issue unless your MLS is one that has a reasonable TOS and will leave your watermark on your photos. Anyone else have experiences with this issue and your local MLS?

Update May 3: Here’s the paradox in the concept of MLSs claiming that the act of uploading photos to the MLS gives the copyright to the MLS: an agent can’t honor a photographers copyright and the MLS’s copyright at the same time.

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12 Responses to “Will A Copyright Watermark Protect Your MLS Photos?”

  • This is something we will never get away from. If you look at a lot of the professional linked in groups they are always talking about stealing of photos, etc. One of the methods they have come up with is – get paid a lot in advance. If you are shooting a 1000 square foot condominium, then charging from $99-$300 is not out of line and if your picture is stolen – it is not the end of the world – you achieved maximum amount of $ earned for that shot, its just the principal. But if you are shooting a famous mansion for sale and the possibility for stealing it is there, then I suggest you start charging by the shot – a good real estate photographer probably can get $295 per shot. A good architectural photographer can get upwards over $2000 per day for the job, plus the cost of rentals, assistants, etc. (Prices are arbitrary and made up for this comment – substitute your market and your skill level). This now covers payment.
    As to stealing – you should be including a copyright right into the photo meta data – some cameras do this directly and sometimes you have to do this in lightroom, but if you do this and if you use a service like digimarc, then you can trace the pictures back and take some legal action. Additionally, you can include a statement in your metadata that you will pursue legal action if you find your pictures are shared for profit or any other use (based on the copyright). And finally, if the pictures are that important to you, register the copyright with the US copyright office (in the US) and do it before you upload to the MLS or before you give it to your client!
    Remember, you can take control and decide how you are doing business.
    All this doesn’t stop copying, but it does help you come to a resolution.

  • Maybe nit picking, but that can be the case with copyright and legal issues. The copyright watermark example you show in the image isn’t a valid copyright notice as it doesn’t include the name of the copyright owner. Although a copyright notice isn’t required to retain legal copyright ownership.

    Wish someone would file a lawsuit against this site http://www.sawbuck.com Not only do they lift the photos from the MLS, they create unauthorized derivative works with them that then advertise their agents.

    Alan

  • Our MLS adds a copyright to the MLS photos, but it doesn’t transfer to syndicate sites… I’m going to bring this up to them. Not sure why their copyright only shows up on the MLS and not when the listing goes to my personal site or one of the big syndication sites. I’m an agent that takes my own photos. I once had a listing that expired, then saw the listing active with another agent that used my photos. I called the agent and told them that they had no right to use my photos, then received a call from the owner saying that the photos are his. Eventually I got through to them both and told them that they could buy my photos from me, which they didn’t. Eventually the agent took the photos down.

    The copyright issue will continue in real estate photography. The syndication issue only makes it more complex.

  • The photographer in the link below had similar issue with The Daily Mail. They stole story and images from his photography blog with credit or payment. Apparently The Daily Mail has no scruples. He contacted them and they paid him.

    http://www.expertphotography.com/the-daily-mail-stole-my-photos-i-got-paid

  • May want to read this article (http://www.pdnonline.com/news/Copyright-Watch-The-5610.shtml) in today’s issue of PDN online. Subsitute MLS for Pintrest! Not much difference here. Pinterest and MLS both are using intellectual property of others posted by a third party.

    Paul

  • dylan…the other agent has ethics issues to deal with using your photos…he may not know how to take a pictures but does know how to cheat…i would file a complaint against him with the board, so they can fine him for use of your picture, (he probably agreed it was his to use) which most likely is a violation anyway…maybe make it so some charity gets the proceeds and let you get the write off. that might let others know so they aren’t tempted…i approach it differently i give the agent the pics to use for adverts for the property….however i had an agent use my pic in a local newspaper ad, the newspaper webperson put my competitor’s logo over it and used in on their online paid ad that appears on the side as a rotating ad…i had enough problems sorting out who was at fault…the paper eventually put my logo over it and i got free ads…still doesn’t make it right… so go get your pound of flesh from the perp. at the very least you can make it very uncomfortable, but that may have to be pay enough. good luck

  • I’ve never encountered a real estate agent who DIDN’T want the images to be syndicated…so that’s a standard part of my terms. They can upload to MLS, allow syndication to aggregators, and for that matter do print collateral, websites, newspaper ads, magazine ads, etc. etc. — whatever they want/need in order to accomplish the sale of the property. All of that is written into the terms and conditions.
    The MLS copyright grab can lead to some awkward situations, but it gets mis-interpreted a lot, too. The MLS copyrights the sum of the data it presents, just like a magazine or newspaper is copyrighted. Doesn’t mean the magazine claims ownership of my photos. So the more meaningful issue is whether the MLS has rules in place governing the appropriation of previously-uploaded images by a new listing agent.

    As for the Daily News – if it’s an editorial use that’s un-connected with the sale of the property, then by all means go after them. Whether the local MLS “claims” ownership is irrelevant.

  • @Suzanne…With the tight deadline delivery and “publishing on MLS” within 24hours, registering before publishing is unrealistic and cost prohibitive ate $35 each registration. There is a provision where can batch register every 90 days post publication for the same $35…which I ironically did today.Also, to charge them what you normally would have charged – or nothing at all – rewards the behavior when you consider how many times it was done that they were not caught. Basically a tip of the iceburg issue.

    One of the keys is to have a solid terms of service that spells things out. Essentially, mine is very liberal for my clients with unlimited pre and post sale marketing use and even gifting to the homeowner if they so choose, however, gifting has to include the limitations imposed. My limitations are no re-sell or other transfer to another party, which relieves my client as the homeowner cannot give to another agent if they lse the listing. In all cases it is stipulated that I retain copyright, but I phrase it in a positive light with registration with the US Copyright office actually protects them at a much higher level than their misinformation they have about their having the copyright transferred as more of an ego thing that they never formaly register. As an example,last week a client called me as another agent had a business development “Just Sold” campaign and used my photo of the home on the postcard. My client was upset as she paid me, but the agent who brought the buyer (and could claim ‘just sold’ by MLS rules) was getting it for free. Worse, while my TOS allow my client to use the photo for similar marketing campaigns, I know I will get future business from her efforts,while I won’t from the other agent who appears to use a P&S. That photo is in the batch that I just uploaded as the house sold quiclky. Further research shows that the photo is also used,and featured as #1, on both the agent’s and broker’s site and they even copy/pasted my client’s property narrative. My client is not aware of it yet, because I want them to remain active until after fully registered, then get a dated screenprint, and let the lawyers handle it.

    I am fortunate that my MLS kind of gets it. They don’t try to strip you of your copyright but more of an extended license, and they copyright their compiled material and reports which may include the photos and the agent’s narrative but do not ‘assume copyright of’ the contributor’s individual works. The do now watermark photos, but that differs from copyright as it is primarily for identification purposes in complaints as so many were ignoring the established rule prohibiting using other agent’s material without permission if they later list the house.

    Probably the biggest issue I have is when a 3rd party takes the material for free, repackages it for their commercial benefit. Don’t get me started on Realtor.com and others who then try to sell it back to the listing agent, and if they don’t buy, they auction off the zipcode and funnel any inquires to them. It is misleading to the public as the zipcode buying agent hasn’t a clue about the house, but worse, they intercept the marketing effort of the listing agent who probably won’t sell them that home (about a 5% conversion) but find them a home that better suits them.

  • Brokers furnishing their own listings data for syndication may wish to consider substituting their own local image URLs in lieu of the URLs for (the same) images provided by the MLS. That would presumably side step any overly-aggressive copyright assertions by the MLS and assure search engines take their copies from pristine, high-quality originals rather than from copies resampled, watermarked, or otherwise abused by MLS processing. 😉

  • Chad-

    If a *newspaper* stole your picture, you should find an attorney to help you on contingency. You likely own the copyright despite what the MLS says (and I doubt the other website asked for permission from the MLS anyway).

    You should take a screenshot with the infringing image so you have evidence before they change it. Then talk to a good copyright lawyer; sites like these have deep pockets and statutory copyright damages are pretty painful; you might be able to get a nice settlement out of it.

    Of course IANAL (I am not a lawyer) so what do I know. But my neighbor is a photojournalist and has told me stories of how easy and quick it can be to get paid for your work when it’s used incorrectly. Good luck!

    Alan

  • As an MLS committee member of a the CVAR board in SoCal I know that the NAR has a IDX rule that the pictures of any listing used by syndications like Zillow can be used up to one year after the property has been sold or taken of the market.

  • I recently found my work ‘borrowed’ by the Daily Mail. They had attributed the images to realtor.com which based on my best guess is likely where they found the images themselves. I contacted realtor.com and the Daily Mail both with a polite but firm note requesting attribution in return for the right to use the images in any editorial pertaining to the sale of the property. Both me and realtor.com contacted the Daily Mail informing them of the appriopriate attribution.

    Within several hours, the site was updated to reflect my name rather than realtor.com.

    As Scott mentioned, I believe that anything that can be done to further the cause of selling the property is extra value for my client and I want them to succeed. This includes editorials that pertain SPECIFICALLY to the property being listed/auctioned/etc.

    If the photos are used subsequently in an editorial but NOT in the context of the property’s sale, then I would expect additional compensation or removal of the images.

    Here’s a link to the article which uses no less than 8 of my pictures:

    http://www.dailymail.co.uk/news/article-2231875/A-home-fit-cowboy-Billy-Kid-star-Robert-Taylors-65m-western-inspired-ranch-sold-cut-price-auction.html

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