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Let’s End The Confusion About Real Estate Photography Copyright

May 27th, 2012

For as long as there has been professional real estate photography there’s been total confusion about who owns the copyright to real estate photography. agbeat.com has a good example of the crazy TOS of most MLSs. There are only very a few exceptions. Here’s the situation:

  1. Real estate photographers believe and behave like they own the copyright (which I believe they do if this was settled in a court case).
  2. Listing agents for the most part don’t care about, pay attention to or understand copyright and photo licensing. They just do whatever’s necessary to get their listing online ASAP.
  3. MLSs are concerned about the potential legal risk of having copyrighted photos that they don’t own the copyright to in their listing databases that they syndicate to large number of real estate sites, so they say in their terms of service that the act of uploading photos transfers the copyright to the MLS or specify that no copyrighted photos can be uploaded to their MLS.

This can’t be rocket science! I cannot see why it isn’t possible to have a TOS agreement that works for all parties here. It would say the photographer or whoever created the photos owns the copyright (standard intelectual property law since they created the photos) and the creator of the photos grants a limited use license to the listing agent and the MLS that allows both the agent and the MLS to do whatever they need to do to take care of business. The listing agent would have the photographer sign this page and adds it to the 30 or so other pages of the listing agreement that they file with their broker and the MLS when they take the listing. 

I think this is a good time to get this craziness fixed because the recent flap about listing syndication is raising the awareness of agents of who owns the listing data. They are starting to think more about having control of their listings.

I’m in the process of attempting to contact some legal people involved in creating MLS rules to see what they think about resolving this issue. Seems like if it’s solved in one large MLS perhaps others would follow suit. If anyone knows of any MLS that is already setup this way I would love to know about it. I know their is at least one in the US but I can’t remember where it is.

 

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19 Responses to “Let’s End The Confusion About Real Estate Photography Copyright”

  • Funny you posted this today. Iran Watson and I are having the same discussion and trying to figure out how to combat this e-mail we received from the FMLS (First Multiple Listing Service) in Atlanta. It’s just not right, and I think there are enough agents that have an ax to grind with their MLS that an uprising could be in order here. In my opinion, brokers control the MLS’s in this country, however it’s the agents and photographers that deliver the content while we sit idly by and let MLS companies sell our data and hard work. If you’re in Atlanta and want to join the fight, send myself or Iran Watson an e-mail. We were talking on the phone just yesterday about putting a small team together to figure out the best way to proceed. This is the problem of monopolies.

    Attention all FMLS members:

    Copyright issues are escalating in the real estate industry, especially concerning photos. It is important that our members obtain ownership rights to any photo or any other media they upload into any FMLS system so that we can protect the content as appropriate from scammers, scrapers, etc. In an effort to better protect the integrity of our content (data and media) and to minimize unauthorized use, FMLS will begin watermarking all photos of newly listed properties effective July 1, 2012. Also at that time the primary photo of all the other listings in the FMLS database will be watermarked (i.e. solds, expireds, withdrawns).

    Please note that the FMLS Terms of Use (and the Fusion End User License Agreement) speaks to members uploading photos or any media, including virtual tours – see portion of FMLS Terms of Use below:

    ASSIGNMENT OF CONTENT, INCLUDING PHOTOS AND VIRTUAL TOURS Any and all content, photographs, virtual tours or other materials that you hyperlink to the Site, upload onto the Site or provide to FMLS in any form or medium for inclusion on the Site or in the FMLS database are collectively referred to herein as the “Work”. You hereby irrevocably assign and transfer to FMLS all right, title and interest (including, without limitation, all copyrights and all other intellectual property rights) in and to the Work. You warrant that you have the full right, power and authority to assign the Work to FMLS. If you agree to these Terms of Use by clicking “I Accept” below, the Work you provide to FMLS, including all photos, virtual tours, and other materials and information, will be the sole property of FMLS. FMLS grants you a non?exclusive, royalty?free license to use the Work in your real estate brokerage business.

    For questions concerning this information please email support@fmls.com.

  • Thank you Larry, this is a subject with a simple solution and should never have become such a distraction for REPs and agents. In lieu of a legally defensible TOS model from NAR, which would respect the rights of all parties involved, it seems this subject is headed to a legal showdown someday. Its sad that NAR and the other rule-making groups have not reached out to non-agent stakeholders to ensure the rights and concerns of all parties are considered and the technical realities are addressed. It is amusing when an MLS claims they also own the virtual tour when the reality is all they have is a hyper-link. Also, if the photograph has had the power lines in the backyard or the athletic stadium cloned out and the MLS claims they own the photo, are they now the liable party when the seller sues them for misrepresentation?

    As many folks have pointed out in previous discussions, the real estate industry has changed from being the gate-keepers of the data (via the old MLS books) to this global clearinghouse thats available to everyone and the response seems to be one of exclusion rather than inclusion. Good luck in getting a common sense solution to this issue and thank you again for your efforts in finding a resolution.

  • Will never be resolved at the $99 tour level. At that level – let them have the copyright – what the heck do you need those photos for? But, some of us take incredible shots, spend a huge sum of money on equipment and rentals and lighting and video,and voiceovers, etc. These are the photos, videos and multimedia presentations and websites that we should retain at a minimum – marketing rights. Actually, when you think about it – other than our own portfolios and securing new business what are these pictures ever used for again? – Stock? Unless you have a property release on a distinguishable property, you can’t really sell the photos for stock.
    Also, are we all talking about registered copyright or just ownership? Copyright that is legally protectable by law and has the possibility of winning a legal case, at least in the United States is when you register the photo or group of photos with the US Copyright office for….$35 per batch online. Those photographers that are complaining about copyright – have they done this first?
    And, I’m not so worried about the MLS as I am real estate agents reusing the pictures without paying a second time if the listing changes hands. I just solve this issue with a contract with the real estate agent and make sure the owner signs a consent form (property release in case I use the shot for stock) If they don’t sign – they don’t get my photography. So far, everyone is in such as rush – they just sign.
    Did you know that with some upgrade photo companies – when you upload their terms of service are that they can do as they please with the photos – so the FMLS is not that far out of line. Most companies that offer a free album or gallery have this clause in their terms of service. It’s only when you pay for the PRO service that you retain the rights to your photo gallery.
    Finally, if the real estate law or the MLS in your area states – they own the copyright – charge more and say the heck with the copyright. Also, your pictures uploaded will have a watermark and protect other uses if this FMLS actually happens – but you own the originals – make another copy for yourself for $10-$15 for the tour if it is that great a tour for your portfolio.
    Finally, there is the digimarc service or services like it. Paying for this service definitely helps keep track of where and when your pictures are being used if you are into self policing.
    We copyright all of our pictures that we put onto our website with the US Copyright Office and use digimarc on them. We don’t for our average off the shelf real estate tours. Sometimes in a pack of 30 pictures we only copyright one picture – and guess what – we save it for ourself and don’t post it to the tour. After all, our contract with the agent and the owner allow us to do this!

  • Larry, I’ve had several conversations with the Wichita Area Association of Realtors regarding this issue. They have enacted a policy the exactly states what you’ve mentioned above. The Wichita MLS has had a longstanding policy that agents are required to either own the images they post to the MLS or have a written release to use them. A recent battle with Getty Images and demand letters that Getty sent to local brokerages and the board has caused WAAR to put teeth into their policy of agents either owning or having a licence to use what they post in the MLS. Yes, someone actually posted images to the MLS that were owned by Getty! The revised policy basically states that an agent must have either taken the images they post or a license to use the images. Use of images that the agents do not have permission to use will result in a $1,000 fine…per image. In other words, if you steal all 24 listing photos from the listing of an agent who previously had a property listed, or that someone else commissioned to have taken, you can be fined $24,000!

    The licensing requested by our board states in short, that I grant a limited, non-exclusive license to the agent to use the images for the purposes of marketing the home and an unlimited, non-exclusive license to WAAR, for the purposes of syndication to IDX sites through the MLS. I email all of my invoices to the agents that I work for. The language in the email states that by paying the invoice they accept the licensing terms printed on the invoice. The terms printed on the invoice indicate their license to use the images, WAAR’s license to use the images, and an indemnification of WAAR should the agent violate the licensing terms. At first I was leery of providing WAAR with an unlimited license, but that’s far better than assigning all rights to them. In reality, they have no need or desire to use the images for anything other than syndication anyway.

    On kind of a side note, I also encourage my clients to delete photos from the MLS once a property has closed or when they’ve lost a listing. This prevents other agents from stealing the images on transferred listings or listings.

  • The local MLS website around here “solves” the problem by disallowing photo uploads. If you want photos for your listing on their site, you have to hire their photographers to shoot your listing.

  • @Mark- yes, this sounds like a very rational policy… perhaps it was WAAR that I’d heard about. Do you have a copy of their rule that covers this that you could send me, I could use to promote this cause? Usually there is only a paragraph of legal language that has the key words.

  • Need to get PPA involved. They have a team of lawyers who’s main job is protecting the rights of photographers.

  • It’s not about reselling the photos (necessarily), or some obsession with owning the rights. I think what it really comes down to is getting credit for our work. It’s the photos and videos we provide that make the MLS and their syndicates relevant. They are profiting from our work – as much as they are profiting from the agents we serve. I don’t have a problem with that, at all. But like the agents I serve, I just want credit for my work.

    @Larry, your thoughts on the subject, and your approach, is right on and simple. I think most multiple listing services are run by reasonable folks who just need to see all perspectives so they can serve their membership well. Remember that… these are mostly volunteer Realtors with a heart for leadership. Approach them with reason and I think they’ll respond reasonably. hopefully!

  • 1. Copyright isn’t “a” right, it’s a bundle of rights. Right to distribute, right to sub-license, right to resell, right to modify, etc., and you can’t transfer more than you have. So an agent who doesn’t take their own photos, absent a purchase of all rights from the photographer, is unlikely to ever be able to meet an MLS requirement to transfer “the” copyright” to the MLS via uploading. In fact such language is legally adolescent and shows some level of ignorance about copyright laws. Language like that is cover-my-liability-butt language from the MLS and would probably end up unenforceable as creating a contract of adhesion and/or being too broad to be enforceable as a matter of commercial practicality. MLS language that requires an agent to have sufficient rights in the image to transfer it too and sub-license the MLS to use it is not only more practical, but is also probably enforceable and provides more protection for the MLS than the over-broad requirements because it is enforcable.

    2. An automatic copyright vests in the creator at the time the work is created, but a work-for-hire agreement would mean that the copyright would immediately transfer to the person/entity that the photographer was commissioned by. At some point real estate agents may wake up to this (I think) and only hire photographers willing to do work for hire. It would solve all their problems, but the professional photographer would charge a greater rate for work for hire as they have no residual rights in the photos to generate additional income. It’s unlikely that agents would pay that (fair) rate and so the effect of agents pushing for work for hire agreements means most of the work would go to the bottom feeders, franchises that don’t care about reselling the photos and those willing to work for cheap or who are trying get entry/experience in the field. (Yes, I know you can have different terms in your agreement–but then it is not a work-for-hire agreement–which is a specific term of art for an agreement that transfers all creative rights to the commissioner of the work. By definition, if your agreement doesn’t transfer all rights, then it NOT a work for-hire agreement–freelance software programmers know about this in spades.)

    3. Middle ground is a work agreement that passes all rights to use, distribute, license (but not re-sell) the photos for any reason related to the sale of the real estate for the life of the listing and any subsequent renewal by the same agent. If the listing expires or the house sells, the license expires by its terms. This should be adequate for any legitimate MLS use and provide a window of recourse if the photos are lifted by a syndicator and reused after the listing has expired.

    4. What recourse is available? Well there are three basic kinds. Take down efforts, a lawsuit to recover actual damage from copyright infringement, and a lawsuit for statutory damages from copyright infringement.

    -Take Down: formal or informal letters from you or your attorney to the offender demanding removal of the photos from the web (or stopping whatever the offending use is). There is also a new array of tools that let you notify Google and ISPs that you assert a copyright claim on the material and they then block/remove them pending a painful process fromt he other side to prove your assertion is untrue. These new tools could prove to be very effective against the syndicators, especially if wielded by an MLS–Syndicators with blocked content on Google searches won’t last long. But…you get no money, just satisfaction.

    -Actual damages: You go to court and demonstrate copyright and prove actual monetary loss/loss of sales to get any damages. If you can’t show actual damages (i.e. real lost sales) you can get a judgment that copyright is in your favor, but you get NO MONEY–just a big bill from your lawyers. Unless you are well-established commercial photographer billing 7 figures or more a year you are unlikely to find an attorney to take your case unless you pay them (many thousands) in advance. Also be prepared for an abuse of process counter suit if you are going after one of the big boys or they have in-house counsel.

    -Statutory damages-Last I checked it was $10,000 per infringement. It works like this. FIRST you register your photos with the US copyright office. Then if they are used by someone else, the presumption is that they were on notice (the copyright is registered publicly) and so, have no defence. And, because they have violated federal law by using “REGISTERED” copyrighted material, they must pay statutory damages (i.e. $10,000 per infringement). You don’t have to show any actual loss of income–the damages are presumptive. You’ll have no trouble getting an attorney for this–if the offender actually has assets and can pay.

    Lastly, we have to ask ourselves–seriously–are we producing work worthy of really worrying about this? Some of us are (you know who you are), but most of use are simply providing a minor service as part of the real estate marketing scheme and should probably not get too wrapped around the axel about this.

    If, on the other hand you only do high-end homes and notable landmarks (the “Smith” mansion), then you should be doing 2 things. First, get a property release from the owner (so you don’t end up on the wrong side of this stick). Don’t forget that you may need one from the architect too for many properties (and it’s a good way to market yourself at the same time). Second, register your photos as a group monthly.

    If you are not registering your photos–but are all worked up about this–then you are more-or-less whizzing in the wind.

    Cheers JD

  • I for one would like to see a work flow of copyrighting your images. When I looked into it, at the official copyright site,
    http://www.copyright.gov/
    it is not very straight forward.

    So, if any one does this, could they share a typical work flow on how your prepare, how many, how often you do this?

    thanks, I think this would be a good lesson for all

  • @Steve- “Remember that… these are mostly volunteer Realtors with a heart for leadership” Yes, I agree, the MLS boards are Realtors but they typically employ legal council to draft rules and forms that have legal implications and for some reason the legal council seem to want to take a narrow, simplistic MLS only view of the world.

  • @J Miller – There is a workflow written by Carolyn E Wright of http://www.photoattorney.com/ on how to register using the eCO system here:
    http://www.naturescapes.net/docs/index.php/articles/341

    @John Driggers – Statutory damages of up to $150,000 can be awarded. http://www.photoattorney.com/?p=2588

  • I am glad you posted this, Larry. As Terry mentioned the practices of the one rogue (read: not affiliated with any GAR or NAR) MLS in our area, FMLS, are finally coming to light. The MLS that is affliated with NAR, GAMLS, does not have this policy and actually spells it out quite clearly that the act of uploading the image simple grants them a license. First Multiple Listing Service has apparently had this in their TOS for years now although not a single agent out of the 20 or so that I have talked to since the ‘watermarking’ email was sent had any knowledge of this. It is no where on their site or anywhere else I looked. No, it is in a pop-up window that you electronically agree to the first time you sign on to FMLS. For the agents that do not own the copyright (the agents that I shoot for) they are breaking the terms of the TOS and can be fined. The people it really impacts are those like Terry and myself, among others, that put a lot of time and effort in creating the best possible images we can to market the home. We do own the copyright and if this undercover copyright grab would hold up in court we are effectively handing all of our work and claim to compensation and attribution with nothing in return. I say nothing because we already pay to have our listing on this site.

    So what does FMLS do with these images and info we upload? Well, no one really knows for sure. What if, just maybe, they were selling the images and info to a third party? What if they were profiting handsomely from such an agreement? In the case of the agent that uploads images I only granted a license to use, FMLS is infringing on my copyright, no?

    FMLS doesn’t have a lot of fans in these parts, a lot of agents I know view them as a necessary evil. I won’t go into everything I have heard about this company because I cannot verify it at this time. Needless to say the fact that they are currently, and have previous been, involved in anti trust lawsuits does not instill a lot of confidence, especially knowing the ruling on the previous suits. Now that GAMLS is getting their act together, perhaps this will change and we can all simply stop using FMLS and not have to worry about this one way or another. In the meantime, I think there is a serious question to the legality or validity of how they are trying to steal the content creators property. I have referred this to the copyright department at PPA, but I think this is going to take a huge public backlash to set this straight. I am confident that if the members actually knew what was going on they would not stand for it.

  • My local MLS doesn’t outright claim copyright. What they copyright is their compilations of data and reports which is resaonable, and no attempt to strip others. The also watermark the photos, MFRMLS, which is literally a watermarks for identification, not establishing a copyright. The water marking was in responce to complaints that other agents who acquired the listing were using the prior agent’s photos despite Rules that explicitly prohibit the practice. Their Rules and Regs are online and easilly searchable using a key word like “Copyright”. http://mfrmls.myismart.com/pages/home

    While I do register all my photos with the Library of Congress with quarterly filings, I have an interesting situation that developed on one in the current batch. The home sold quickly, and the buyer’s agent sent “Just Sold” postcards to the neighborhood which by Rule, either party to the sale can clain “sold”. The listing agent contacted me as a neighbor alerted her to the mailing. The postcard had the photo (elevated PAP) that I took and obviously took it from the MLS as still had the watermarkk on it. When my client confronted the agent about the mailing, she just minimized it as “something the admin office puts together for her.” I am having a lawyer look at it for potential action as I have an obligation to protect my client who paid for the photo, only to see another agent use it for their business development effort. I also haven’t told my client yet because I don’t want things to change, but looking at that brokerage website and the agent’s individual the property is features on their “Sold” page with biline reference to the listing brokerage. This wasn’t some IDX linkage feed to the website as 1) IDX drops when the property is no longer ‘active’ and 2) on the front ‘money’ photo – not the remaining 12, so was manually created. Also included on the website, and the primary reason I have delayed tell my client, they cut-n-pasted the original content description of the property created by my client – which has copyright protection in it’s own right. Don’t want her to force them to take it down while my attorney looks at it – and obviously getting dated screen prints.

  • Let me know when you get this figured out. As a long time broker and now MLS executive and part time real estate photographer, I’d love to have a solution that everyone can live with.

  • Iran and Terry – please email me/call me or let me know the best way to contact you guys about this! ryan (at) premieratlantarealestate.com or 404-630-3187…maybe we can sit down this week for lunch and discuss???

  • […] […]

  • […] a strange AGBeat story was featured on a Photography for Real Estate (PFRE) website, one reader pronounced in comments that he has responded by submitting a emanate to […]

  • in canada, the copyright act says that if you take the photos you are the owner of the work and the copyright, however, if you are paid to create the photographs as soon as payment is received, the ownership and copyright now becomes that of the person paying for the images to be taken. In this case a signed release or contract is needed for the photographer to regain the ownership and copyright.

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