A Professional Real Estate Photographers Guide To Protecting Copyright

January 6th, 2014

copyrightFor years on this blog we’ve discussed, wined about and ranted about the fact that many MLSs claim that they own the copyright for photos that are uploaded by agents to the MLS. We’ve all pretty much known that this claim is BS but haven’t have all the facts we need to act intelligently in this area. Back in September of 2013 a post I wrote attracted Joel Rothman and Steve Schlackman who both are Intellectual Property Attorneys in Florida. Joel and Steve promised to help us understand and cut through the craziness of MLS copyright rules so last month they wrote a series of fantastic articles called Does The MLS Really Own My Photos My Photos? This series is the best and most authoritative information on this subject that I’ve seen anywhere! Here is a summary of the material they cover in their series:

  • Does MLS Really Own My Photos? (Pt. 1) – What are the rules for your local MLS? Joel is in the process of compiling MLS rules. He already has a 21 page spreadsheet of MLS rules that anyone can download. It is not yet complete, but it has rules from about 68 MLSs in the US. Joel also explains how Section 204 of the Copyright Act states that the only way copyright can be transferred to is the copyright owner must sign an “instrument of conveyance”. The conveyance must be in writing and be physically or digitally signed. So it’s not likely that you’ve transferred your copyright to the MLS accidentally or unknowingly.
  • Does MLS Really Own My Photos? (Pt. 2) – MLSs own a compilation copyright (defined in section 101 of the Copyright Act) for the listings they compile, but photographers still own the underlying copyrights to the photos. Can a real estate agent that the photographer has granted a non-exclusive use license to, transfer copyright to the MLS? Unlikely, unless the photographer is working as an employee of the agent or real estate broker.
  • Does MLS Really Own My Photos? (Pt. 3) – Should real estate photographers use a copyright notice? Yes, Steve explains how and why. Should real estate photographers use a written license agreement?
  • Does MLS Really Own my Photos? (Pt. 4) – Copyright infringement is easier than ever before. But so is protecting yourself. Require agents to sign a written license agreement. Use metadata on photos. File copyright registrations regularly. Patrol the internet for those that are infringing your copyright.

I recommend that all real estate photographers read Joel and Steve’s four posts that I’ve referred to above and follow their advice. This is essential information for all real estate photographers. You can’t get any better information than this since these guys represent professional photographers in court.

I’d like to publicly thank Joel and Steve for compiling this fantastic explanation. They did all this as a response to my plea to help the real estate photography community cut through the confusion that is caused by so many of the MLSs in the US claiming that they own the copyright to photos uploaded to their sites.

 

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27 Responses to “A Professional Real Estate Photographers Guide To Protecting Copyright”

  • Larry, TREND MLS, the largest in eastern Pennsylvania and New Jersey, is not listed in the database provided. Should you wish to forward it to Joel and Steve, I have posted it at: http://www.thebuschs.com/TREND_MLS_Photo_Policy.pdf

  • Thank you! You are really too kind. We are really privileged to know and represent many fine real estate and architectural photographers. The photographers we know are all good people who work hard and use the creative process to produce great results for their clients.

    We hope you never need our help to pursue an infringer, but if you do please let us know. Happy New Year!

  • The photo rules in the database for MRIS (Metropolitan Regional Information System) is incorrect. Here is the actual terms to which agents must agree before they can upload photos:

    “Photo albums are uploaded on a per listing number (ML#) basis and are not transferable to another listing. So that you may continue to use the image in your business, MRIS grants to you and your broker the perpetual right and license to use, copy, adapt, modify, display and distribute the image for your own business purposes, including posting the image on your own web site, your broker’s web site, or in your own property listings, in any form or manner now or in the future available. All images submitted to the MRIS Service become the exclusive property of Metropolitan Regional Information Systems, Inc. (MRIS). By submitting an image, you hereby irrevocably assign (and agree to assign) to MRIS, free and clear of any restrictions or encumbrances, all of your rights, title and interest in and to the image submitted. This assignment includes, without limitation, all worldwide copyrights in and to the image, and the right to sue for past and future infringements.

    If and to the extent you retain any copyrights or other ownership rights in or to the image despite this assignment, you waive and agree never to assert any such rights against MRIS or its successors, licensees, or customers, including without limitation, any moral rights that you may have in or to the image. You warrant that any image submitted is your sole property, that no third party owns the image or any rights in or to the image (or any rights that, to your knowledge would undermine this assignment), and that you are not submitting materials for which you do not have the right to make the assignment described above. MRIS reserves the right to accept or decline any image submission and may, at its own discretion, remove any image from its systems for any reason it deems to be appropriate. Inappropriate information includes, for example, images containing broker or agent name/contact information, web site addresses, personal property, and obscene or profane material.”

    (Source: http://www.mris.com/mris-products/core-products-services/keystone)

  • Thanks to Bruce for the TREND rules. I have updated the database and the link in the article. Thanks too to Glenda. I will take a look at the MRIS rules too.

  • I think the key here is in example provided by Glenda Cherry, the agent agrees to assign all of “their rights” to the MLS. The agent does not own the copyright and therefore cannot assign or transfer those rights. The agent may however transfer the rights to photos they take. I think that is what the MLS was getting at.

  • I know I am in the minority with this opinion. But I really don’t care about copyright on basic marketing photos for real estate listings. I make my fee and go on to the next one. The amount of issues versus the time/brain damage of worrying about it is not worth it.

    This is not fine art photography, where you are creating a limited number of shots. This is for a house and a small snapshot of time…………..

    Anyways that’s my opinion.

  • @ Dave,

    While I can understand that it can seems like a lot of work, and I do understand where you are coming from, let me just give you some food for thought.

    The fabulous house you just shoot get’s sold to a worldwide celebrity, and now everybody is clamoring for photographs of it. Your photo’s wind up online and in magazines worldwide. Not only that, a book publisher decides to they want to use the images in a book about that celebrity, and it’s a best seller. Not only did you not get paid for any of that use, you didn’t even get a photo credit, so all that publicity had zero benefit to you. Well, you did get paid that original fee, but I’d say there was a lot of money left on the table, right? Far fetched? No, I’ve had similar situations happen more than once in my career, and this exact scenario once. Because I had registered my copyright and am a stickler when it come to use of my images, I collected a significant amount of from all the additional licensed use., and I mean significant.

    Your work has value. If it is good, it can have a lot of value in additional licensing, so don’t let others capitalize on your hard work and talent.

    my 2 cents

    George

  • This post could not have come at a better time for me! It recently came to my attention that a national company is somehow obtaining my photos from the MLS system and creating their own “virtual tour” in their own viewer and also connecting that to the listing in the MLS (along with my tour). I’m currently investigating how and why this is being done as it would seem to me that a) it is a violation of my copyright as I did not authorize them to use my photos b) it is a duplication of the service that I provide to the agent (not really sure why they would want to pay for both services) and c) it could be considered false advertising. It really irks me that an approved provider is being permitted to do something so blatant as making money from my work. I’m also in the MRIS region. As Frank Gutowski mentioned, “The agent does not own the copyright and therefore cannot assign or transfer those rights.” It certainly would be nice if the MLS’s were educated on copyright and there was consistency across the board…

  • @Amanda – All MLSs syndicate (send their listing information) to literally hundreds of real estate sites (Zillow, realtor.com, Truila, etc), this is part of marketing a listing. Most listing agents and home sellers want their listing syndicated to all these other sites. Real estate photographers need to expect that the photos are used in this way. The intended use of the photographs is to market a property. Part of marketing a property is, while that property is on the market, get the photos in front of every possible home buyer by syndicating the photos to hundreds of real estate sites. The MLSs have licensing agreements with the sites they syndicate to.

  • Yes, Larry, I understand that. However, the photos are syndicated by me as well as the agent. However, I don’t think that is what is happening in this instance. My photos are being taken from *somewhere* (either the MLS system (with their superimposed watermark) or another syndicated site. While I give permission for the agent to use the photos for marketing the property (this includes the syndicated sites mentioned) I do not give permission for another vendor to simply take my photos from someplace and put them in their own proprietary viewer as if they took the photos and had ownership of them (and I can’t believe the MLS system is allowing an approved vendor to do so).

  • @Dave

    I second your opinion, even if one of my exquisite bathroom shots eventually becomes featured on Antiques Roadshow…

    –Gary

  • @Amanda – I guess the main issue is, are the photos being used on a real estate site that the MLS syndicates to. There is probably a lot of illegal use of real estate photos. Your MLS can probably tell you if they syndicate to the site where your photos are.

  • @Larry – the photos are being used in the vendor’s proprietary viewer (with *their* logo, name, etc.). I have seen their tour with my photos used in the exact same listing even though I took the photos and created a tour. So the MLS currently shows 2 virtual tours for the listing – my original one and one created by the other vendor with my photos. I have no idea at this point where else the other vendor is posting the tour they create with my photos – your guess would be as good as mine. To try to make this a little clearer – it would be like me taking Scott Hargis’ photos from online, putting them in *my* virtual tour viewer, and posting that tour wherever I wanted to without any credit being given to Scott. That’s the type of thing happening here.

  • @Amanda – I don’t see why what viewer is used has anything to do with whether or not it’s a copyright violation. Photos syndicated to Zillow.com or Realtor.com are displayed in their particular viewers/pages with their logo on it. A viewer is just a webpage.

  • I *think* it’s an issue because the photos are presented as having been taken by the vendor. It is *their* name in the URL and on the viewer – no notice is provided such as “Photos provided/taken by……” So anyone seeing the photos in that vendor’s viewer is more likely to contact *them* for photos rather than calling *me*. I do think the majority of people realize that photos are not taken by Trulia, Zillow, the MLS, or Realtor.com. It certainly seems that at the least that what this vendor is doing would be faulty advertising. I’m sure that Scott would certainly have a thing or two to say about my putting his photos on my website or in my viewer without providing any credit or compensation to him for their use as well as my allowing other people to assume that I (or an employee) was the photographer.

  • @Amanda – I would first find out if your MLS syndicates to the site with your photos. If they don’t, you have a clear case of infringement. If they do, you’ll need to discuss the issue with someone like Joel or Steve to find out if your belief that they are infringing has legal basis.

  • @Dave – Hang on to your copyright. If you assign it, you cannot use the images in your portfolio or anywhere else. While you might not get any secondary license opportunities now, you may get inquiries in the future to use some of your photos. For many photographers, selling photos to third parties can be a sizable addition to their income each year. One poster (here or on the Flickr group) admitted to earning an extra $20K/year in third party sales. The ultimate RE shoot would be where you have a commission from the developer, builder, RE agent, model interior designer, cabinet maker, landscaper, pool company, tile company and the roofers. You would be stuck if you signed a contract with the agent and gave up your rights to them. It might be a full day shoot, but based on usage rights, it could be worth a nice pile of the needful and no mistake.

    @Amanda – I hope you are not to fixated on photo credits in relation to copyright violations. If somebody steals your pictures and gives you credit for the image, they are only advertising whom they stole the photo from. A photo credit only comes into play when a judge is determining what level of penalties apply to a case. And, that’s just if the thief deleted your information and substituted their own. I keep seeing people trying to defend themselves by saying that they gave the photographer credit and that makes it all ok. It doesn’t. Hopefully, you have registered your images. I know it’s not easy to do with published images. There is a pilot program that isn’t advertised on the Copyright.gov website to allow registration of published images in larger batches that were created within the last 90 days. This should help RE photographers since we are expected to deliver images within a day or two and registering job by job @ $35 a go isn’t cost effective for us. Between the government shutdown and the holidays, I haven’t signed up for the program. This article has reminded me to get on it.

    From what I understand, for non-employees, assigning a copyright must be done as a deliberate action/contract and cannot be part of a larger contract or buried in the fine print. Does the assignment also have to list the image titles (numbers or some other identifying description)? I would guess that a WFH (Work For Hire) agreement could cover assignments more broadly. Do WFH agreements have to be based on per job basis or only be valid for a limited period of time?

    The most insulting thing that could happen is if you resell an image and get sued by some entity that believes that you assigned them all rights. You should win if you never signed an assignment document, but the attorney fees might make you a loser anyway.

  • @Ken – no, I’m not fixated on providing credit to the photographer. I was just attempting to provide an example of what is occurring – perhaps it was a bad example. This is what is contained on the other vendor’s website: “By using the images on the MLS, whether they’ve been photographed by a professional or an agent, (redacted) creates a Property Site, Listing Video, mobile platform, auto-generated narration and 24 hour information line automatically. It just happens.” In other words…it doesn’t matter who the photographer was, they just *take* them.

  • Larry, the link in this post to Part 3 is giving a 404 error. The correct link was found on Schneider Rothman’s site: http://www.sriplaw.com/mls-really-photos-pt-4/
    (yes, should read ‘pt-3’, but…)

  • @Amanda — please feel free to email me joel.rothman at sriplaw.com and include a link to where your photos are being used to promote the viewer. It sounds like an interesting issue.

    @Dave and @Gary — I agree that there are certainly situations where the fact that a work is copyright protected is really unimportant in the scheme of things. However, consider the following scenario: you are hired to photograph a home inside and out for a listing. The photos are great but, as is always the case, you are not paid nearly what your time and attention to the job was worth. That’s because RE agents are cheap. But, it’s a living, right? Okay, so time goes by and the home does not sell. The listing agreement expires and a new agent at a different brokerage gets the listing. The new agent just takes your photos from the last listing (maybe by downloading off MLS, or by getting them from the owner, etc.) and posts them for the new listing. Doesn’t bother to ask you for permission. And now the home sells for the same amount that the prior listing agent was asking, and the buyers tell the selling agent that were drawn to the house by the great photos (and by the way, can they have copies?).

    You did great work that sold a house but you were never paid by the agent who made the sale. This is (sadly) a very common scenario that, in fact, just played itself out in a case I handled and settled for many hundreds of times more than it would have cost the broker if he had just picked up the phone and paid my client the same low price he charged the last agent. Oh, and did I mention that the brokerage’s insurance policies (yes, policies plural) paid the settlement, not the broker?

  • @Joel Rothman – done! Thank you!

  • George,

    They are going to use my low resolution pics scraped from a MLS for a photo book……….. I don’t think so. Let me be very clear, I don’t care what happens to my MLS marketing pics. I have not left money on the table. On a couple of high end homes, I had separate contracts for the pics that were to be used on a web site and magazines. I just don’t have the time or inclination to spend any time going backwards. My time is better spent getting new business!

  • Dave Salgado, your initial comment was not just about MLS. It was a general comment about real estate photo usage and quality. I continue to see people make this kind of seemingly self-serving comment as though it should apply to all photographers and all markets. It does not. Even for real estate purposes, the usefulness of the photos does not necessarily end when the home is sold. The listing agent may continue to use some of the photos to illustrate a sold home in his or her marketing, and he or she may continue to use the marketing materials containing the photos to obtain new listings, which in turn means more business for the photographer. In any case, whether the purpose of the photos is to help market the home or the realtor, the quality of the photos can be very important for some markets; and, the higher the quality of the photos, the more likely it is that other parties might want to use them beyond the initial real estate usage. So, don’t assume that what applies to your market, talent level and skill level necessarily applies to others.

  • David,

    I was only applying to myself. It is not my purpose to impose a general opinion on what others should do. Everyone needs to be adaptive to their business needs and practices. If a Realtor takes pictures without permission they can be subject to Ethics charges which could lead all the way up to having their license revoked.

  • Is anybody else having trouble accessing the website to download the free material?

  • @Ron and all – when you click on the download link the page displays an error message but when you click on the blue “here” link the document actually downloads… it’s always been like this. I’ll point out to Joel.

  • I know this topic my be a bit old but I was wondering for those that do have there clients sign contracts, do you have them sign one for every listing? Could a photographer just send the Terms & Conditions portion along with the photographs? This way the agent doesn’t have to sign every time. Just wondering what people are doing?

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