November 9th, 2015
I photographed a listing for the seller, and the buyer’s agent took the photo off of MLS and is using it for his own purposes. This is a response I just received from a realtor in my area to an email I sent to him regarding his unauthorized use of one of my images on a marketing postcard:
“When agents upload the their photographs to the MLS they transfer the rights of those photographs to the MLS. The MLS then transfers the rights of the photo to 3rd party sites such as Zillow and Trulia for the purpose of advertising the property and for the use of the MLS members.”
I would appreciate any feedback as to how to respond to this guy. I am just getting my name out as a real estate photographer, and he happens to work for one of the top agents in the area. I don’t want to alienate any big time agents, but I also want to let him (and other agents) know he’s incorrect. Thanks for any help you all can give me!
Great question! Education of real estate agents on the subject of photo copyright is a continual battle for everyone in real estate photography! The education job is made more difficult in areas where the MLSs have incorrect statements and rules that are sound at odds with the message you are trying to get across to agents.
The best way I know to combat this problem is to present the agent with some solid facts. My source of solid facts in the area of copyright is Joel Rothman of Schneider Rothman Intellectual Property Law Group. Joel and his associate Steve Schlackman wrote a series of 4 posts on their blog a couple of years ago of me in response to all the questions like this that have come up on the PFRE blog. This is a post I wrote that links to Joel and Steve’s explanation of photo rights in the context of real estate and MLSs and syndication sites. This is the best source I know of for explaining this. Joel has been involved in many litigations involving MLSs.
You have to explain to your agent that believes the MLS owns the copyright to your photos that no, the MLS owns a compilation copyright, not the photo copyright. And that the only way you can transfer photo copyright to someone else is you (the photographer) have to sign a document that transfers copyright. See Joel’s 4 posts for all the details. You could email your agent the links to Joel’s 4 posts. Be firm but polite. In the end, your client will very likely respect you for being well informed.