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Does My MLS Have the Right to Put Their Copyright on My Image?

November 22nd, 2017

Larry in Washington DC asks:

I occasionally look at Pixsy to see how my photos are being grabbed online for unauthorized use. Recently, I saw a couple of photos I shot for a Realtor appear in the Washingtonian Magazine in Washington, DC. They have the ©MRIS mark on them. If I license my photos to a realtor to post on MRIS, does MRIS then have the right to put their copyright on that image? And does a journalist have the right to grab that photo and include it in a magazine?

Does the MRIS have the right to put their copyright on your image?
The answer is no, they don’t own the copyright to your image (for details see https://www.sriplaw.com/mls-really-photos-pt-1/) but many MLSs do this. The question is, is it worth your time, money, and energy to make them stop?

Does a journalist have the right to grab that photo and include it in a magazine?
Much depends on the licensing agreement that you have with the listing agent. If the listing agent is allowed to use the photo anywhere in the process of getting the property sold and the listing is still active, having it in a magazine will help get the listing sold. It’s also important to know if the agent gave the magazine permission or if the magazine just grabbed it off a website somewhere. If the license agreement restricts the usage it’s being put to or if the agent didn’t give the magazine permission then no, you can take action to get them to take down the image. The first step would be to send the magazine a DMCA takedown notice. This page at Pixsy explains how to do that.

Update 11/23: Andrew points out below that real estate photographer need to band together to fight both of the issues raised above. Exactly! Joel Rothman an IP attorney in this area claims that a real estate photography association focused on fighting these issues is badly needed! See Joel’s post on this subject here.

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12 Responses to “Does My MLS Have the Right to Put Their Copyright on My Image?”

  • As Larry said….is it really worth the time and effort to bitch about a kitchen shot?? I look at these issues with the thought of how has it harmed me for what it is…. just another kitchen that I shot. Is it wrong, yes, is it something I can pull my sword out and swing at the windmills? Yes, but is it productive??? No

    I will save my energy for those special shots of mine that I have deemed worthy and taken the time to register to fight for. Every now and then, I produce something that I feel is worthy of protection and take the action to protect them.

  • @Jerry Miller. Larry’s “is it worth it” comment is about trying to get the local MLS from adding their logo to the image and I’ll agree that spending the money on an attorney to fight THAT battle is not a productive use of cash. Taking the time to send a DMCA takedown notice to the magazine can be worth it. If you find that the MLS is providing images to publications for which they do not have a clear license, action should be taken since it’s very likely that you have just seen the tip of the iceberg. If a reporter at a magazine (which knows all about licensing or should) is grabbing images to use without a license, their attorney might have a word with them about how much liability they are assuming by continuing that practice. If it was the agent, the photographer needs to communicate better about what sort of uses are licensed and what might be considered an infringement.

    Filing an infringement case, provided the photographer is registering their images, could be overkill. A DMCA notice is more like a shot across the bow and lays the ground work for further action if the infringement isn’t correctly quickly. It can also elicit a response from the magazine that lets you find out where the infringement originated from. A good Copyright attorney can evaluate how much an infringement might be settled for in or out of court and it’s often well worth the time if the attorney is confident enough to take on the issue on contingency. If it does get to court, showing that a DMCA notice was sent first followed by an offer to settle at a reasonable price might convince a judge that the defendant hasn’t bargained in good faith so a larger award might be forthcoming.

    So few photographers will go after infringers that stealing photos is generally without consequences and financially cheaper to do. If the magazine is stealing most of the photos they publish and only has to settle for a few thousand a couple of times a year, that’s the way to go. Why would they spend tens of thousands and the time to do it properly if that costs them more money? Finding an infringement is often down to luck and if you have been making pictures for a decade there is no telling how many of your images have been stolen so you need to go after the infringers that you do find. Ed Greenburg Esq has emphatically stated that low res boring, run of the mill images are infringed as or more often than photos of very high quality. If you go into a DIY home improvement store and see one of your images on a store display, chances are that there are thousands of those displays across the country. It could be a very boring kitchen shot you made in a very boring beige flip. The infringement could be worth millions given a certain set of circumstances since awards are “per infringement” and not “per photo”. So who wants to bitch about a kitchen shot? Me!

  • It may very well be worth it to pursue copyright infringement case against them. See https://www.lib.purdue.edu/uco/CopyrightBasics/penalties.html.

  • The (reprehensible) way organizations get around this, is they put in the uploading terms “you own the copyright to the photo or have permission to upload it here (and also give us the right to add out watermark…)”. I don’t know for a fact this is exactly what the mls does, but others do it for sure. They essentially put the responsibility all on the uploader, even though they know damn well they are not the copyright holder and don’t have those permissions.

    Another question of huge importance for us is who has the right to create embed links of our photo sets. I see all the time an article is written and somehow the author get an embed code from say Redfin, and a slideshow of the images plays and Redfin is credited. This happens on houzz too; you can go in houzz right now and embed any photo you’d like in any blog or website you’d like.

    Honestly, we’ve got to get better about this stuff. I think collectively we can definitely make a difference. Acting solo, sure it’s an uphill battle. There’s many organizations like houzz or Zillow that rely exclusively on images they have not licensed to run their entire business. No more photos from interiors photographers and you could bring these places down. I sincerely believe something as simple as a Facebook group for photographers that gains steam and directs its members on how to handle the Zillows houzzs of the world could work. It’s all about having a united front. They have nothing without us, we have the power, we all just need to be of the same mind.

  • Probably the biggest outtake is “Is it worth the time and money” with an almost universal “No…save effort for other issues.” A better question is why did various MLS start it in the first place? The answer is quite simple, policing their members. Prior to the watermark policy lifting photos…and the subsequent complaints from members reporting it…was rampant. The MLS would then become entangled in a dispute as the offending party would have multiple excuses ranging from their taking same picture framed exactly to ‘given to me’. Of course, with most photos even today DIY by the realtor, they never bothered (or heard of) registering the copyright for the additional protection and whining to the MLS was much easier than pursuing the limited legal options. Since instituting the watermark policy, the complaint problem of other realtors ripping off the prior realtors photos has virtually disappeared as origin becomes fully established with the original watermark. Now the issue a journalist using a watermarked photo in an feature article about the home, doesn’t say much about their journalistic standard when they could have gotten an non-watermarked version from the Realtor who presumably was interviewed for the article marketing the home.

  • Since that are using the copyright symbol, it is possible they are batch submitting all the MLS photos for copyrights. Even so they don’t own the photos there is no way for the copyright office to know that. In addition, a court would consider that evidence of ownership. So any legal fight would be long and expensive.

  • Thanks for those insights everyone. I will go by the comment “is it worth the time and effort to bitch about a kitchen shot” but will also send out the DMCA notice just on principle alone and move on. Happy Thanksgiving to all my fellow photographers!

  • Even though I would generally consider what the MLS did to be an egregious offense, if doing so made the images unsuitable for Zillow rules and thus took some control back, I would look the other way for awhile. 🙂

  • Thank you for mentioning this website (Pixsy). Pretty cool service.

  • That is a very convenient excuse about the mls using their own watermark to stop others from using photos. Why wouldn’t they send out a statement permitting photographers to stamp photos with their own watermark if this was actually their concern?

    We can go back and forth on any of this stuff, but the truth is there are entities out there generating revenue by either violating copyright, or having lawyers write extremely egregious and manipulative upoload terms. These companies we are discussing are literally built off of photographs, so this is a big deal. Stopping all the offenses only requires that interiors photographers band together and take action.

  • Most people, agents included, don’t really understand copyright. I think it’s important to spend a little time explaining the benefits. Recently, I was told I needed to provide a ‘blanket’ release. Rather than argue, I asked a few simple questions. “If your listing expires, are you OK with the next agent using the pictures you paid for?” “Are you OK with another agent using the pictures you paid for to advertise their services?” I then went on to explain how my copyright release protects both of us and in no way inhibits the agents ability to market the home. Not only did I keep my terms, the client is happy. Yes, I know it’s not always that simple, but it is a good place to start.

    All that said, I do think Andrew has a good point. Individually, we’ll eventually lose the battle. The problem is compounded by the proliferation of amateurs happy to accept whatever they get and agents willing to accept poor quality in exchange for a cheap price. Somehow, we need to find a way to keep our profession ‘professional’, and that starts with copyright protection.

  • @Neal McGuire, The MLS’s in my area doesn’t add the circle C copyright symbol along with their watermark. If any MLS were to register and claim the Copyright of images, that would be great. My attorney would place the order for his new Mercedes the same day as I brought him the case. Sans a signed transfer of Copyright from the photographers, the MLS would be in a very bad position and I’m not even sure that you would even have to have previously registered your images. I can easily look up when I made the photos, the agent that commissioned them and I will have a copy of the invoice with my license text on it. It would also be like knocking the keystone out of the arch. Once the MLS loses the first case, the flood gates would open for other photographers to sue. The only thing the MLS could say was that the images were uploaded to their service by a registered user but that isn’t a case for claiming ownership.

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