An Example Of The Photo Ownership Language That Some MLSs Use

December 22nd, 2015

3rdParyViolationMichele in Maryland just sent me an example of the current terms that agents agree to when submitting photos to her local MLS:

READ THE FOLLOWING CAREFULLY, AS THESE TERMS ARE LEGALLY BINDING. BY SUBMITTING AN IMAGE TO THE MRIS SERVICE YOU ARE ACKNOWLEDGING THATYOU HAVE READ AND UNDERSTOOD THE FOLLOWING TERMS AND THAT YOU AGREE TO BE BOUND BY THEM. FAILURE TO AGREE TO THE FOLLOWING TERMS BARS YOU FROM SUBMITTING IMAGES TO THE MRIS SERVICE. THESE TERMS OF USE SUPERSEDE ANY PREVIOUS (e.g., UPSHOT) TERMS OF USE, AND ARE SUPPLEMENTAL TO ANY OTHER TERMS OF USE AND AGREEMENTS GOVERNING YOUR USE OF THE MRIS SERVICE.

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, website addresses, personal property, and obscene or profane material.

Yes, there seem to be many MLSs around the US that have this kind of language that make it sound like the MLS owns the uploaded photos. As a long time PFRE reader, you probably already know, that Joel Rothman has assured real estate photographers that photographic rights cannot be legally transferred without the copyright owner (the photographer) signing a document to that effect.

The problem with this kind of MLS language designed to protect the MLS is that it creates a confusing environment for agents that are asked to sign license agreements by photographers who intend to resell photos and it encourages agents to do their own photography to avoid all this craziness.

I guess the best approach to counter this foolishness is to publicize Joel’s advice and successful litigation by real estate photographers.

Thanks Michele for the example!

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8 Responses to “An Example Of The Photo Ownership Language That Some MLSs Use”

  • Indeed. It would seem to me that they are asking and requiring Realtors to sign away rights they do not own or even control if they used a professional photographer unless the photographer signed away the rights to the Realtor. My question to a lawyer is can boiler plate agreements such as this stand up legal when people are being asked to sign over rights that are not legally theirs to sign over? And can any organization insist on rights they are not legally entitled to. Usage rights are one thing but ownership rights surely are another.

  • @Peter – There are some or perhaps many MLSs that have abandoned the kind of language above and tried to come up with more reasonable rules… for example 3 years ago the NWMLS in the Seattle area used to have language similar to above but improved it (see: http://photographyforrealestate.net/2012/08/21/open-letter-to-the-nwmls-seattleking-county-multiple-listing-service/) and made it more reasonable and even have a licence agreement for photographers to use (but it has problems and most don’t use it)… But at least they are trying to be reasonable.

  • Don’t ask, Don’t tell…

    Simply put you own the copyrights unless you sign them over. Why would you even bring up the point ahead of time in a written agreement between you and the realtor. If you don’t talk about it you still own the rights no matter what. That always places the realtor in the wrong. Never upload the images for a realtor. Don’t ask don’t tell.

    conflicts about copyrights can’t cost the average photographer a fraction of a fraction of a fraction of a percent in income. There are only those very rare instances where this could ever impact your earnings for more than a couple hundred dollars worst case.

    Get smart… don’t ask don’t tell. Don’t even talk about it and don’t ever sign something. You’ll be much farther ahead than the cost of one discussion with a lawyer.

  • That is quite extreme and feel fortunate that my local MLS only mention of copyright concerns their compiled reports without the faux ownership grab. Additionally, they make fineable offence (no warning to adjust to comply) if another Realtor uses another Realtors photos or narrative without their permission (assuming the could give permission on photos). Extreme language like that is really more to protect the organization, so if there is a copyright issue, they can point the finger at the Realtor for uploading what they accepted in good faith.

    Few Realtors realize that their glossy narrative describing the property is a creative work with its own copyright protection – yet they universally fail to register. That is what is so pathetic about these “copyright transfer demands” including those from the brokerage, as they would fail to register those too, ultimately downgrading the protection to the most basic level. The once or twice a year that I encounter that conversation, I not that it obviously has value or they wouldn’t want it, and question how much they are willing pay – and not my corporate rates for builders and architects – without copyright transfer. That tends to shut them up real quick as they were thinking of it as free. I also use the opportunity to educate them on copyright in general, expanding beyond their creative narrative to photos they take with their iPhone (keeping me out of the discussion).

    The biggest problem I have is not with MLS but with the syndicators. They essentially receive the raw material (narrative and photos) for free, create a totally new product (leads/referral) then sell the package back to the Realtor that provided the material in the first place. If they don’t buy the leads package, they then sell it to the Realtors competitor (or do both and show the listing agent among the three who bought the leads package.) Frankly, I think they owe royalties to both the Realtor for the narrative (and photos if they took them) and to the photographer as a cost of doing business. After all, those are key factors that created the lead in the first place! In a way, it is also stealing from the listing agent as they give to other Realtors based on the listing agent’s work. There is a general saying “List to survive.” By that, leads generated from a listing are, in a way, more important than the listing itself. The probability is that the individual will not like the home when they see it buy are in the market for a similar value home which the Realtor can find. It makes little different in the Realtor gets both sides of a single transaction or half on 2 transactions in the same price range.. And even if the listing didn’t sell, the half on another property generated by that listing covers their cost.

  • @Frank GUtowski,

    “… Never upload the images for a realtor. ”

    Why not?

  • A very interesting discussion. So much so that I have written to my local MLS to ask them for their policy on this since all my clients upload to them. They have nothing on the open part of their site. From Larry’s post and other comments, it would appear that different MLS’s have differing policies. Stating the obvious I know but I am a master at that.

  • @Peter- Yes, MLS policies and rules are all over the map… they are each run by an independent local board.

  • @Larry yes they are all over the map and vary in each state. Interesting topic here thanks all.
    @Frank and @Michael sometimes the realtors don’t know how to download upload we see that sometimes LOL! I know even at this day in age. To meet dead lines we will take care of this for them when they are in a panic.

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