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Open Letter To The NWMLS: Seattle/King County Multiple Listing Service

August 21st, 2012

Congratulations to the NWMLS (the MLS in the Seattle and King County area) for taking the initiative to work on fixing outdated photo rules that, like many MLSs don’t acknowledge that photographers own the copyright to photos they shoot for Realtors. MLSs all over the US need to be doing this same thing. However, in this case the licensing agreement that replaces the old rules does not consider the interests of professional photographers.

The licensing agreement that professional photographers who work for members of the NWMLS are, as of last week, being asked to sign has the following language:

For good and valuable consideration, Photographer grants Listing Firm the fully-paid, nonexclusive, perpetual and worldwide license and right to use and sublicense the Photographs, which license shall include, among other things: the right to copy the whole or a of any Photograph via any medium and by whatever means, including distortion, alteration, cropping or manipulation of the whole or any part of the Photograph; the right to create any derivative work of the Photograph; the right to provide the Photographs to NWMLS, NWMLS members, and other third parties for publication and republication, in hard copy and electronically, for all known and as of yet unknown media (including, but not limited to electronic or online transmission, CDs or DVDs) for all purposes; and, to avoid any doubt, including, but not limited to, for the uses described herein and in NWMLS’s Rules and Regulations…

We all understand that any MLS needs protection from legal action that may arise as a result of syndicating photos to all the other online sites listings are sent to. But most professional real estate photographers I know will object to signing such a broad license agreement with no limitations on what Realtors do with the photos. Here’s why:

  1. There is nothing in this license that prevents a Realtor from giving the photographer’s copyrighted listing photos to anyone for any use. Realtors routinely give listing photos to home sellers, other Realtors for re-listing, interior designers, home stagers, architects. Yet real estate photographers expect to re-sell photos to all these same parties.
  2. As stated above, the license is in perpetuity! The license should be LIMITED to activities and media relating specifically to listing and selling the subject property.

Why not write this licensing agreement so it protects the interests of all parties involved? I realize this license was written by legal council for NWMLS with the intent of protecting the NWMLS and it’s members, but why not consult some professional real estate photographers for their input and write it to protect their interests too? The fact is professional photographers are becoming an integral part of the real estate marketing process and their interests need to be protected by any such license agreement as well as that of the NWMLS and it’s members. 

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5 Responses to “Open Letter To The NWMLS: Seattle/King County Multiple Listing Service”

  • There’s a bit more to the story. Dan Achatz, a Seattle-area RE photographer asked NWMLS for clarification of this issue and received the following response (unedited):

    “First, no one is required to use the form(s), these forms were created
    to assist you and to protect yourself. If your photographed does not
    want to sign the form, he does not have to.

    Here is the problem: Let’s say that you take a listing and upload
    photos of that listing. Under NWMLS Rules, when the listing broker
    uploads photos to Matrix, the listing firm warrants that it has acquired
    the necessary rights to use the photos. Those photos are not only in
    the NWMLS database, they get distributed to every IDX web site out
    there. If those published photos are the proprietary property of you or
    the photographer then you are probably fine. If however, someone else
    can claim that photo is theirs, they can sue you, and anyone else that
    is using the photo. Since you warranted that you had the right to use
    the photo, you are now indemnifying the entire NWMLS membership. If
    this sounds farfetched, it isn’t. Some of our members and NWMLS have
    already been sued for displaying photos without the rights to do so.”

  • @Glenda – Yes, I believe the Form 13 as written does give the Realtor and NWMLS protection against claims they don’t have the right to use the photos. It does what it’s intended to do. My point is it’s Too broad and puts no limits on Realtors… there’s been no one in the process of writing this looking out for the photographers. With some very minor limitations it could work for everyone.

  • In an effort to be helpful, I think the NWMLS is doing more harm than good. All they needed to do was remind realtors that they need to confirm that the photographer holds copyright to the images and is granting them the usage rights they need to be in accord with MLS requirements.

  • I think an important distinction in this case is that the photographer does not have to sign the agreement. Why not substitute your standard photography license agreement? Regardless, they are actually given a choice not to, unlike the situation of some MLSs that essentially have you give them all these rights as a condition of using the service…

    I think Larry sums it up perfectly with his last statement.

  • […] the Northwest Multiple Listing Service (NWMLS, which services Seattle and the surrounding area) made some updates to their Terms of Service, he and various other sources were unable to point to any other changes […]

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