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Can You Do Anything About MLS Rules You Don’t Like?

April 5th, 2017

Ted in Indiana says:

After sparring with my local real estate board for years, I’m on their radar screen and they’re coming after me with everything, from blacklisting me with brokers, telling agents they don’t have to pay me if I use a copyright, telling agents with active listings they have to remove pictures with copyright info on the pictures. In short, they want to shut me down.

Do I fight? Can I report agents that refuse to pay to the police for theft of services? Can I take them to small claims court for not paying their balances? Can I report them to the state licensing Groups? They are hitting me with everything they have to intimidate me into following their orders. While they imply I’m the one breaking the law, they offer no proof. I need all the legal help I can get. I’m reaching out to you first to get an idea for what game plan to follow. Can I use social; media as a platform to gather attention?

It sounds like you are in a feud with your local MLS and there are  two issues that you are you are having trouble with:

  1. Putting a copyright watermark on your photos: real estate photographers need to follow the rules of the local MLS. Many MLSs in the US don’t allow watermarked photos. You don’t have a choice in this. Your clients are members of the local MLS and have to follow the MLS rules. This means you in term have to follow them too. You are NOT going to change this. Get used to it. It’s not big a deal anyway. Sure there are benefits to you if you have images watermarked but you can’t break MLS rules, or change them!
  2. Not getting paid for shoots: The classic way to deal with agents that don’t pay is collect your fee up front at the shoot or when you deliver the photos. Very easy. Just use SquareUp so you can accept credit cards. Many real estate photographers do this. See this poll.

In summary, as a real estate photographer, life will be better if you comply with the rules of your local MLS. Sure there will be many things you don’t like but it’s not worth trying to fight them.

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16 Responses to “Can You Do Anything About MLS Rules You Don’t Like?”

  • It’s their ball, what’s your problem? The MLS has no reason or need to do things your way, all you have done is put your self out of business. Now to the part about getting paid, if the Brokers are using your images, they owe you. If they don’t use them because of watermarks etc, your SOL. You where hired to do a job and the onerous is on you to know the rules.

    If the Realtors are using you images and haven’t paid, then ask the MLS to remove them, they HAVE to. If they are using your images and haven’t paid, send the bill to their Principal Broker (their boss and who holds the franchise) They own the listing, not the Realtor who obtained it. They will pay or make the Realtor pay.

    I suggest you look for a new line of work because you will not come out on top if your battling the MLS. BTW, they can not require a Realtor to not use you, but they can reject all images that do not fall into their guidelines. When I was a Realtor in the San Juan Islands the MLS passed a rule that all scenic shots HAD to be taken from the listed property, not off the property.

    And why the copyright? to advertise yourself. If so there are so many better ways to have done that.

  • 3. Become an associate member of the local real estate association and see if you can work your way onto the rules committee.

    Most MLS’s disallow any watermarking of images. If they are telling agents to not pay you for work you have performed, they might be on very thin ice and if you can get evidence in writing it will be time to talk with your attorney to see what your options are. Same goes if the MLS is “blackballing” you through intimidation of their members or defamation. If you dig around it’s not hard to find a copy of the Rules and Regulations of most MLS’s online. Since most of them copy each other’s regulations nearly verbatim, finding anybody’s is going to work if you can’t find it for your local association. The chance of changing an association’s rules from the outside are nil. They have paid some ambulance chaser to sign off on their regs and they are going to stick with that and not pay the money to have them review any changes that they don’t feel are necessary. The MLS’s all prefer that you sign the Copyright to the agents whom they have much more sway over knowing that the agents are never going to register the images and are no threat.

    You need to be registering your Copyright to have the big guns available for agents that don’t pay. Small claims court is an option but it often takes the whole day and you will have to balance taking that route against what you might have been able to earn if you didn’t take the day off. Copyright infringement is only heard in Federal Court, so small claims would have to be on the basis of an unpaid invoice and not Copyright. You can send the MLS a DMCA notice if the client doesn’t pay and the MLS will be required to remove the photos within 24-48hours or they would become liable for an infringement and the agent will get a warning or fine. Lawyers and courts are like nuclear bombs, if you use them, there is gonna be a bunch of fallout.

    I ask to be paid at the photography session for RE work and will accept checks or cash. I will take Paypal in advance of the photo session or before delivery depending on the agent I’m working with and how much business we’ve done together. The thing I like with PayPal is the money is immediately available for withdrawal or with my PP debit card. Square didn’t used to do that, you had to transfer the money into your checking account, but that may have changed. Both services charge 2.9% +$.30 per transaction the last time I compared.

  • Maybe it is just me, but I get the sense that Ted has no experience in RE work. The attitude that I get from his rant is one I see with all that fail in business. Not just RE photography, but any business. If you want to make change, it has to come from within and even that is no guarantee. As it is now, he looks like he is just creating a bad reputation for himself.

    Bottom line, your local MLS and agents that use it, is a small group that word spreads….

  • This is the first I’ve heard of a photographer having a ‘feud’ with the MLS board – or these kinds of issues. A photographer can’t expect to have their watermark on any images that he/she is paid for any published on the web or in print. We don’t get our watermarks on our images in magazines or newspapers (yes usually credit line underneath) or on clients websites etc. It’s ridiculous to expect anyone to pay for your work and then publish your images with a watermark. When photographers started having websites most of us had the images quite small to
    make them undesirable to steal and be used/published without our permission – some added watermarks. We now realize that it’s best to show your images large on the screen with no watermarks – no point, I’ve never seen a watermark I could remove in photoshop if I wanted to – Of course most of us would never use another photographer’s work, but there will always be thieves taking things that don’t belong to them. Some agents think they they can use images paid for by a homeowners previous realtor. Take action if/when it happens.

    Getting paid – I tell a new client that they can pay by cheque at the time of the shoot, by etransfer, or by credit card, and that the fees are due the day of the shoot. If they request credit card I tell them I will take down their credit card details and process the fees the night of the shoot – or by the next day if I’m busy – and that I add the 3% Paypal credit card processing fee to their bill (no one minds). Paypal doesn’t like you processing your clients credit cards yourself, and after about 2 years they may notice the same IP address for the seller and buyer of some of your transactions – and then block that particular card. When that happens you sign up for Paypals (annoying) virtual terminal for about $40. a month – problem solved (with virtual terminal you don’t get a detailed invoice with the address of the shoot and whether it was video/stills or just stills etc) so I also make a normal Paypal invoice and then manually mark it paid (*marked virtual-terminal on the ‘note to yourself’ box) and send a pdf copy of the invoice to my client. So credit cards I have control and process right away unless the client (rare occasion) asks me to wait a day or two. Those that pay by cheque pay on the spot and receive their invoice the day or evening before the shoot. Those that use etransfer get their invoice the day of the shoot or next day. After sending the invoice to clients that pay by etransfer and cheque (or the 1 that is set up for their assistant/office to pay their credit card invoices and don’t want me to do it) I text the client and whoever processes the credit card to ‘please verify you see your emailed invoice in case it’s in your junk mail). It does happen (especially with gmail on occasion) and that way we both know they have received/seen their invoice – a friendly reminder that they are expected to pay right away. On the rare occasion I’m not paid within a week I send a friendly-reminder. I’ve been lucky so far and have always been
    paid by realtors, architects, builders etc.

  • Where did it went wrong? What happened?
    Offering business starts with agreements and terms of conditions.

    Like, I’ll make the photos delever them in agreed size and quality, if you like them pay And you can use them. Or I’ll stay the owner of the images until your client or the end user has paid for it.

    Use your metadata / exif to place your copyrights with something like:
    All images can be only used after written permission from the photographer.

    Just keep it simple and have fun instead of trying to fight the system and get irritated.

    Again, it’s all about being clear to your clients.

  • *typo in my above post
    no point, I’ve never seen a watermark I COULDN’T remove in photoshop if I wanted to (watermarks do not protect your images – of course no ethical photographer would show another person’s work as their own
    )

  • Collect money up front. No one objects to my policy that I have been using for almost a year. (I started this policy after having several clients either go out of business or just decide they didn’t want to pay or took forever to pay. No more).

    If you feel your name is being sullied and you have proof (audio recordings or emails, etc.) and you can prove damages, HIRE A LAWYER. If you’re doing something wrong, according to their terms of service, (like watermarks on the images) perhaps you should stop. I’m not sure from your explanation what their beef is with you. If they are going after you so hard, you must have done something to piss them off. I feel like you’re not telling us the whole story.

  • Things to remember about copyright:

    Copyright is a property right.
    Just because you buy a print does not mean you have purchased the copyright.
    Professional photographers are the smallest of small copyright holders.
    Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation.
    Photographers have the exclusive right to reproduce their photographs (right to control the making of copies). Copyright
    Unless you have permission from the photographer, you can’t copy, distribute (no scanning and sending them to others), publicly display (no putting them online), or create derivative works from photographs.
    A photographer can easily create over 20,000 separate pieces of intellectual property annually.
    Professional photographers are dependent on their ability to control the reproduction of the photographs they create.
    It affects their income and the livelihood of their families.
    Even small levels of infringement—copying a photo without permission—can have a devastating impact on a photographer’s ability to make a living.
    Copyright infringements—reproducing photos without permission—can result in civil and criminal penalties.

  • My advice…

    Quit your whining and do business under their rules. They are not laws (that govern your behavior, they have laws that govern the Realtors behavior) they are rules and they are their rules. You have to play by their rules. They are not hard rules.

    If you do not confront them and follow their rules they will ignore you. You will make money.

    Perhaps today some people feel there should be no rules and they can do what they want and chose what rules to follow or not. That’s a bad attitude.

    It’s stupid to believe you can win that one. You won’t. Move on and pick your battles very carefully the next time. Get the chip off you shoulder, that I suspect is there, and your will see more rainbows in your life.

  • Regarding the copyright watermark, you are not required to watermark your photos in order to preserve your copyright. In addition to Larry’s advice, which I believe is correct (I highly doubt you will ever get the MLS to concede on allowing your watermark on the photos), there is no legal precedent that requires public displays of copyrighted works to have a watermark in order to preserve copyright protection. The best way you can preserve your rights is to make sure your contract specifies that it is NOT a Work Made for Hire. This is not required as the only way for you to sign away your copyright is to do so in writing, but it certainly helps solidify the understanding you have with the agent, so they can’t later argue that there wasn’t a “meeting of the minds” if you end up in court for their non-payment.

    Which brings us to, no, you cannot have people arrested for non-payment. Debtors’ prison was left back in the days of Charles Dickens. You can contract with a collection agency that will generally charge about 25 percent of whatever they collect, or you could try small claims court. If your contract has a clause that allows either party to compel binding arbitration, be aware that sometimes this can be more expensive than going to court. If your contract specifies that the usage license is granted only upon payment in full, you could issue DMCA takedown notices and/or pursue an infringement action, but that is basically the “nuclear” option and could garner an unfavorable reputation in your market.

    I’m not an attorney and can’t give legal advice, but I think your best bet is to stop trying to single-handedly change the expectations and requirements of an entire MLS board. Unless their rules require that the agent “own” the copyright, or worse, that the copyright actually transfers to the MLS, then it sounds like their only argument is with your watermark.

  • Our local MLS has plenty of guidelines… and I follow them. One is that there can be NO ADVERTISING in the photos. Not a business, not a realtor sign and especially not the photographer watermark protecting the greatest image of a two bedroom bungalow ever captured. Any violation of that rule and the Realtor gets fined $500.

    How is fighting the rules of the MLS a smart business move? They can refuse to host any image they want… it’s their site.

    What benefit is it to you to put your copyright info on the image? That’s just advertising. Do what the rest of us do… embed metadata and submit ALL your works to the Copyright Office. Every single mundane image that I create is routinely submitted for copyrights. It’s $55 for one image or 30 million images. Furthermore, a copyright watermark means nothing in a court of law. Taht would be like me putting my copyright info on an Ansel Adams image… but he still has the US Copyright proof. All you are doing is making enemies and losing business.

  • Note that VHT, the US national RE photo & VT service that recently won $8.3M in its lawsuit against Zillow, always watermarks its photos with a copyright notice — at least here in the northern Illinois MLS. I always assumed they did the same in other markets. The posts above, indicate differently?

    My MLS (northern IL – Chicago area) does have rules that indicate that they think my photos and my copyright, belong to the agent and the brokerage that has the listings. I, and others, have complained about this wording and they have acknowledged this as a problem that they are working on to fix in the next iteration of their rules.

    So, sometimes you CAN generate change from the “outside”.

  • @Michael Allen, It appears that the MLS is fixing a gross error in their wording rather than making a change to the photo requirements. The original draft of their rules may have claimed copyright on the images posted to their service which isn’t valid. I’ve seen that in a couple of MLS rules, but I personally ignore it since they don’t have a leg to stand on. It’s still going to be good to join the local real estate association.

    I’d love to be able to put a small watermark on my images and my clients would rather nobody else know who I am so I remain their secret weapon.

  • @Michael Allen, we are in the same market. Have you and other photographers been presented with this “Photographer Agreement” by clients that they say the MLS requires us to sign? I have had a unwritten agreement with my clients for years that they have full usage rights for the photos they pay for, but I retain the copyright so that I may use them for my own personal advertising only. I have never given photos to an agent or brokerage who didn’t originally pay for them or have permission from the original agent. This agreement is a 100% rights grab and I feel very uncomfortable about giving away full rights to my work. Technically I would have to request permission from each brokerage to use a image on my website.

    I have also been adding a watermark on web sized images for a few months now, but have had no complaints from clients or the MLS. Could my clients get fined if they use these images? I have no problem removing it but I see a lot of other photographers and companies doing it too.

  • @Kat Frankovic
    I’m with you on this…. They (Chicago area MLS) just today sent out a notice of a change requiring agents to click a checkbox affirming that they have permission before uploading photos and videos to the MLS. Their explanatory video refers to the NAR templates that seem to assign (transfer) ownership rather than simply give permission, so are not acceptable.

    I penned this response to the MLS video:

    “You correctly explain the need for permission to use copyrighted material. However, the NAR template document you refer to does not simply give permission for a license to use copyrighted photos or videos, it transfers the copyright, giving all rights and ownership of the work to the broker — as a “work for hire”. To paraphrase the doc: “Broker and Sales Licensee intend that all photographs … shall be the property of Broker and a contribution to a collective work consisting of Listing Content of all Broker’s sales licensees. ”

    No professional photographer will sign such a document. We grant a license to use our work for the single purpose of marketing a particular property by a particular agent and brokerage. This covers syndication, but not use by third party vendors for other uses such as promoting other business ventures not related to the marketing of that property.

    Perhaps you can refer to a different document that gives a limited license (permission) to use copyrighted material but not a total assignment of the copyright and ownership.

    Perhaps you might consider changing the MLS rules and regulations that still (the last time I looked) require that ownership of IP material be transferred to the broker.”

    Let’s see if they respond.

  • @Kat, Nearly every MLS uses the same or very similar boilerplate rules and regulations. Every one I have seen forbids any watermarking of images, graphical (non-photo) images, broker/agent signage, etc although enforcement of those rules will vary. In my local area, there were many images with yard signs in the front exterior (required) photos. Recently, the Real Estate Association has been cracking down and sending notices to brokers which has had my clients calling and emailing to have me put a “coat of paint” on images with their signs showing. The rules allow for fines for a second or further offense within a certain time period. Without a re-read of the rules I am going to say that they use the phrase “may fine the broker/agent” with the operative word being “may” to give themselves some wiggle room. I believe that several violations lead to a suspension which is worse than just getting fined. A suspended listing agent or office is going to have a harder time marketing properties.

    Once or twice a year some franchiser tries to get it’s franchisees to inflict a WFH or copyright transfer agreement on photographers. If I was able to charge $200/image for the most bland home, I’d consider signing but at $10/image I’m not interested in the least. Secondary licensing is heating the house during the slow winter months and I have high hopes of it paying for groceries too this year.

    Nearly every photographer that earns a substantial portion of their annual income shooting real estate is not going to sign. Certainly not if they’re any good. Perhaps the offices will be successful in getting the $30 for 60 photo photographer advertising on Craigslist to agree. The best tactic is to say no politely. If you are giving great service and providing good images, they’re likely to be back before too long.

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