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Update: The Confusion About Copyright of MLS Photos and Tours Continues

July 10th, 2012

Back in May in post pleading to end the copyright confusion about real estate photos and tours I said, “This can’t be rocket science! I cannot see why it isn’t possible to have a TOS agreement that works for all parties.” I was wrong. This problem makes rocket science look like child’s play! Every MLS in the US solves this issue differently and has different motivations for their rules.

To briefly restate the problem:

  1. Real estate photographers clearly own the copyright for their work.
  2. Real estate agents don’t really care about copyright or licensing they just want their listings to have great photos.
  3. Many MLSs believe they can and need to take over the copyright of photos and tours on their sites to stop scraping of listings and to protect themselves from risk. Most MLSs don’t even think in terms of the existence of professional real estate photographers.

So what’s happened since May? Malcolm Waring, a long time PFRE flickr group participant, Realtor and Chairman of the Pocono Mountains Association of REALTORS in northern PA has hired one of the best law firms in the country to work on this problem for his local MLS. Here is Malcolm’s description of what he’s done on this problem:

We hired the best law firm in the country to review our MLS copyright agreements, and to start registering the MLS compilation on a quarterly basis. Now I’m truly stumped on how to proceed.

First let me give you some background as to why this is a real life issue and not just an exercise.

There is a company out there actively scraping listing content from probably every MLS in the nation, posting the content, and then when someone clicks or calls, they contact the agent and try to sign them up to get the lead in return for a 30% referral fee. I sent an inquiry on one of our own listings so I know this for a fact.

Basically, they feel entitled to use whatever they find on the internet, without authorization, and monetize it. They are stealing content owned by brokers and agents, then selling leads back to the owner. There are already two large MLS’s suing them but they are defiant.

So now I have been learning more about copyright then I ever wanted, including reviewing everything I could find on the PFRE site and group (even my own postings from 4 years ago when I was just shooting our own listings). I intended to come up with a new set of agreements that worked by licensing everything.

Here is the problem, and the reason why so many MLS’s have statements about transferring copyright: If you don’t own the copyright, you can’t enforce it. The law firm recommends requesting copyright transfer whenever possible or the copyright owner will have to do their own enforcement.

When the MLS registers the compilation without owning any of the content, then all they can do is go after the violator for stealing the structure. That’s like someone taking a box of goods from a store but all you can go after is the box, not the goods.

So now what? That nice friendly language I was wanted is effectively useless. I need something innovative, and so far all I can think of is temporary transfer or joint transfer but I haven’t seen this put into use. I’m not sure how this will fly either but I actually do not know of any pro photographers with content in our MLS so I’m looking for ideas everywhere.

I should also point out that there is a discussion thread in the PFRE flickr group on Malcolm’s approach to this problem. I raise this issue again here primarily to give Malcolm’s comments as much exposure as possible since he is looking for idea’s on how to proceed.

At this point I’m not even sure how many different motivations there are for MLS’s wanting to own the copyright. From what I’ve seen there are other motivations than Malcolm describes.

The fact of the matter is this mess is not going to be solved any time soon and we all are going to have to live with copyright confusion with MLSs for sometime. In the mean time I think all professional real estate photographers should be vocal advocates for photographers retaining copyright but we need to be flexible enough to make business work for our clients.  The fact is that as Malcolm’s situation illustrates, MLSs generally believe their motivations for demanding copyright are in the public good.

 

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20 Responses to “Update: The Confusion About Copyright of MLS Photos and Tours Continues”

  • I can imagine a real estate photographer who is active for even a few years would have many thousands upon thousands of images. These are not iconic shots of Monroe by Eve Gardner, although they probably take a lot more work than Gardner exerted. Wouldn’t it be easier just to sell the rights?

    Alternatively, the creation of an entity with a real estate image database that chases down the violators. One would think it wouldn’t be that hard to find the culprits, every image is tied to a unique physical land address.

  • Rob, I don’t see how it’s even a copyright issue. I think the Pocono MLS will have to identify specifically how they’re being harmed. If they don’t own the copyright to any of the photos, then there’s no infringement taking place against them. Any infringement is against the photographer, who likely isn’t feeling much damage, either. Most professional RE photographers are totally OK with syndication. Even if my client doesn’t like the site, there’s little incentive for me as a photographer to pursue a case. If a real estate agent takes his or her own photos, and neighborcity.com picks them up illegally, then that agent can certainly take steps…a DMCA takedown should resolve the matter. That gets the site’s ISP involved, and if the ISP ignores the take-down, then there’s big trouble brewing for somebody. Any lawyer would take that case.
    If there’s a written description of the property, then someone (presumably a real estate agent) could claim ownership of that, and pursue an infringement. Someone on the Flickr group mentioned that it’s a little dubious to be claiming copyright over a group of facts, like the number of bedrooms, and whether there’s a gas furnace, etc., so I’m not sure how that would play out. But prose could be registered and protected, for sure.
    I suspect that the real complaint here is not the appropriation of the data and photos, but the business practice of trying to shake down the listing agent for a referral fee. That strikes me as a separate issue. Why not just say “no” to that, and hang up the phone? I would think that a truly serious and motivated buyer would find the listing agent another way.
    The other big complaint seems to be neighborcity.com’s agent rating system, which agents think is unfair and doesn’t represent them accurately. Again…not a copyright issue. As a photographer, I would not be convinced to turn over my copyright so someone could pursue an agenda that has nothing to do with photography….they’d need to explain how I have any skin in the game to begin with.

  • I used to think this subject was confusing and difficult to sort out, but oddly enough, this article has caused me to think maybe the issue isn’t so difficult. I’m tending to agree with Scott on this one. Every image in the MLS has always had a copyright owner, though most of them don’t understand the concept or really even care. If the MLS goes after the one scraping the listings over the “box” of data, then they have accomplished what they set out to do, that is recover the listings from those who don’t have a right to use it. Owners of the individual pieces of data can choose to join the fight if the want. I say all this from the standpoint of having been an MLS chairman for many years and now as an employee of a local association.

  • A simple solution for this would seem to be a Creative Commons license, a trouble-free alternative to traditional copyright. Instead of my trying to explain it here, check it out at http://creativecommons.org/ or look for the explanation of Creative Commons in Wikipedia.

    I am still very new to this field but I think a Creative Commons license with the proper options selected will probably fix all the problems cited here.

  • Not only do the photographers not have a dog in this fight, real estate agents don’t have one either. They can stomp their feet and get red in the face about it, but that’s about it. The agents don’t own the listing, the brokerage does. This is clearly spelled out in their independent contractor agreements. As soon as they enter the information about a property onto a data sheet, which subsequently gets input to the MLS, the brokerage owns it. Many brokerages themselves have become web aggregators. Leads on listings don’t go directly to the agent, they get funneled through the brokerage. If the agent wants they lead on their own listing they have to pay their own brokerage a referral fee to get it. Real estate brokerages don’t make money from the homes listed in their name, they make money by skimming from the agents. Always have and alway swill. This is just one more way to earn a buck for them. As far as third parties doing it? The only one with a dog in the fight is the brokerage. They won’t spend the money to fight it because they’ll still make money by taking commission splits from the listing agents if the property sells.

  • Here’s what the Rhode Island MLS has to say on the subject –

    MLS Policy on using other member’s photos – Members are prohibited from submitting photos previously entered into the Service by another agent or agency without written permission from the photos original owner/licensee. $50 per offense

    Transfer of Listing Photos – REMINDER: When you order photos through a photographer, they continue to hold the copyright. This means that you cannot transfer or sell the photos to another licensee without the permission of the photographer. Copyright laws prohibit the unauthorized use of original content – ranging from photographs and drawings to software and marketing materials. For more information on copyright law, please see http://www.copyright.gov

  • Not so fast there Mark….

    As a photographer I definitely “have a dog in this fight” Unless the work you do is “work for hire”, the copyright for the images belongs to the photographer. I never relinquish my copyright not matter what the MLS agreement says, and I register every single images.

    Having said that, you are certainly right, there is an awful lot of scraping and data-mining going on by various for profit entities. At this point I’m not pursuing any infringement cases as it relates to real estate syndication type sites, but that is only because to date, most brokers to seem to think that these sites are a problem. That could change though as they start digging deeper into the brokers pocket.

    It’s one of those areas that we need to keep an eye on and adapt as the landscape changes. Keep one thing in mind, without your images, none of those sites would exist. They are making money on your work, so don’t be too quick to dismiss it as something that doesn’t concern you – it does.

    my 2 cent’s

  • Bill,

    Good for Rhode Island MLS. They are being very smart and proactive in not only explaining, but also protecting there agents against accidental infringements, but also looking out for the photographers that provide a valuable service to their members. Kudos to them.

  • Scott, I misread the premise here and thanks for clarifying. Distilled down, the shakedown can’t take effect without photos to draw in the customer, hence the listing agents wanting the leverage of the photo rights to prevent it. The shooters may not have skin in the game, but couldn’t they assist the hands that feed them to prevent the fee scammers?

  • If the problem that the MLS is truly concerned about is:

    “Here is the problem, and the reason why so many MLS’s have statements about transferring copyright: If you don’t own the copyright, you can’t enforce it.”

    Take a page from the stock agencies. I’ve been an active stock photographer for over two decades with three stock agencies (one very high end and two high volume). Part of my agreement with them is that they have permission to act as my agent and to protect MY copyright (and their income from my images placed with them for licensing). They can sue on my behalf, just like an agreement between a photographer and an attorney. So far they have only had to send letters to a couple of people for cease and decease and have included a bill for usage. They (and therefore I) have been paid and the infringes have either stopped using the images or legally licensed the images.

    I don’t see why there could not be an agreement that the photographer allows use of the images within the MLS (and of course to the agent) and the photographer agrees that the MLS may represent the photographer in any infringement issue.

  • At 11:30 today I am going to shoot a home for a Real Estate Agent, I am going to charge her $495.00. After I deliver her the pictures I don’t care what happens to them. I am done and on to the next project. They are just a snapshot in time I can’t get too worried about who owns what. I just don’t have the time to care. These are only used for a small period of time and poof they are gone. As far as the business practices described, I agree correct thing to do is hang up the phone.

  • @Paul- “I don’t see why there could not be an agreement that the photographer allows use of the images within the MLS (and of course to the agent) and the photographer agrees that the MLS may represent the photographer in any infringement issue”

    Yes, I agree. It would seem a solution for this isn’t very difficult but apparently there is a lot of misconceptions and conflicting interests.

  • Dave,
    As Larry points out there are conflicting interest. The world has become much more complicated with the internet, digital images, etc. We as photographers have changed and adapted (some) and I think the brokers need to change also, pocket listings are a thing of the past. What difference does it ‘really’ make that pictures of their property is on other sites? These are sites that home buyers are using and the brokers are still going to get their share of at least the listing sale. Sure, they may miss out on the seller side but, so what? Half of something is better than all of nothing!

  • George and Bill, Rhode Island’s policy is a slap on the wrist compared to Wichita’s. The Wichita Area Board will fine $1,000 per image used without permission. (24 images in a listing x1,000=$24,000!) I retain copyright for everything I shoot as well, but if you give a Realtor permission to use your images in syndication (you have to, or why hire you) then you’re images are gone down the information super highway being grabbed by whatever entity wants to use them and call it “syndication.” As long as there’s a property attached to it as “for sale,” what are you going to do? Once you’ve shot the home, handed over the images and they’ve been input into an MLS, it’s a syndication free for all. Trying to do anything about it is like pissing up a rope. I’m more concerned with Realtors, builders and developers handing out my images to other to market their business than I am syndication.

  • As Scott Hargis continues to try to point out, most real estate photographers don’t really care about this issue. We license our photos for all marketing purposes pertaining directly to the listing, which may include magazine and newspaper ads. So how are traditional media that are in business to make profit different from on-line media? If a magazine were doing the same thing as the unauthorized websites, it would not matter to me in the least, as long as this explicitly related to the marketing of the property. Usage of the photos without the proper listing information would definitely be another matter.

  • I have been producing virtual tours for about three years. A problem that I ran into recently was that another virtual tour company has signed an agreement with a national brokerage. As a part of that agreement, they strip the photos from the brokerage’s listings and create a virtual tour/slideshow with their branding and upload that to the MLS. While I don’t really care if the Real Estate agent uses photos for marketing in postcards, flyers and the MLS, I do have a problem with another virtual tour company using my photos with their branding!

  • @ Sharon – I agree with you wholeheartedly. Especially since my clients & the brokers want a product from me that is not branded. Therefore, my images should not be branded by another company.

    I do not find myself concerned with other websites at this point. I do, however, have a concern with the real estate agents who feel it is ok to hijack the images when taking over another agent’s listing. I have advised my clients that the copyright stated in my contract not only protects me, but protects their investment as well. I am interested to see how this subject continues to be addressed.

  • Here’s another angle on all this that I do care about – my publicity.
    When I get paid for a real estate shoot I understand that the photos will get syndicated the moment they hit the MLS: Trulia, Redfin, Realtor.com, etc. The agent gets more exposure for their listing. Didn’t know about neigborcity.com before this thread and don’t care.
    BUT, I do care when Redfin grabs photos from MLS and a blogger for CA Home and Design takes the photos from Redfin and writes a post that lands my photos on CA Home and Design’s web site with “photo courtesy of Redfin”. I love the magazine and would like to have bragging rights, an in with the editors, and anything else a photo credit on their site might bring me. What do I get? Nada. That bothers me. I’d like my name attached to my images when they go out in the world because you never know what potential client may see them. How can we address this issue?
    And:
    @Sharon – I’d go after that company in a hot minute. Clearly copyright infringement. Send an email quickly followed by a DCMA take down notice if needed.

    @Erin – My terms clearly state that the images are licensed to my client (the listing agent/s) for the duration of the listing only and I make sure my clients understand that. I explain it’s in their interest since they don’t want another agent to get images they paid for for free (especially if they’ve lost the listing to that agent!). When I find it I send a bill to the new agent along with an explanation of how they are guilty of copyright infringement. THe few times I’ve had to do it the new agent has paid up.

  • […] “Update: confusion about copyright of MLS photos and tours continues” -PFRE Blog […]

  • The false and misleading information about Neighborcity’s “shakedown” posted by Malcom Waring (to whom I have personally spoken and clearly explained the NC business model) needs to be corrected. NC advocates the use of buy-side agents, and listing agents are NEVER contacted by NC for referrals on their listings. We match the best agent for the client’s needs, and contact that agent and offer that agent a referral (as a buy-side agent, not on that agent/broker’s own listings) for that client. If the agent accepts the referral and a successful transaction results, we get paid a portion of the commission earned; there is no other form of compensation or charge for the service we provide. The listing agent get’s paid the same as he/she would have for received if any cooperating broker had participated on the buy-side. The result of NC’s particpation in the process is the exact opposite of what the foaming-at-the-mouth attackers are claiming: the listing agent/broker, without paying any more that would have occurred in any transaction involving a cooperating broker, has a greatly expanded opportunity to sell listed properties. Why are they complaining? The answer is obvious: they want both sides of the deal and don’t care whether or not their practices are detrimental to the interests of their own clients, to whom they owe a fiduciary duty to market their properties in manner so as to to receive the best price in the shortest time.

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