Can An Agent Be sued Because Another Agent Misuses Copyrighted Images?

February 10th, 2014

DMCAtakedownLee Jinks sent me a link to this article on last Friday.

The article claims that:

If a Broker lists a home and uploads copyrighted images as part of their listing feed, which is then in turn placed in RETS/IDX, which you promptly display on your site — the answer is YES.

Lee said this was contrary to his understanding and it sounded pretty outrageous and unreasonable to me. So I contacted Joel Rothman, our man in Boca Raton who is a board certified IP Attorney to see what he thinks about the situation reported. Here is Joel’s article on the subject.

Here is my short summary of what Joel said: If you are accused of copyright misuse the copyright owner must send you a DMCA takedown notice (Joel refers to this as DMCA safe harbor) asking you to take down the copyrighted material. If you comply and remove the copyrighted material, the issue is over. That is, the law says you get a chance to take down the copyrighted material before the copyright owner can take you to court or start imposing remedies. Taking down the photo in the case sited involves getting it out of the IDX feed… meaning it probably has to be dropped from the listing by the MLS.

I’d like to thank Joel for being available to answer questions on these kinds of issues for PFRE readers.



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3 Responses to “Can An Agent Be sued Because Another Agent Misuses Copyrighted Images?”

  • A definition of RETS/IDX is in order.

  • “Safe Harbor” is a function in the DMCA laws to provide a mechanism for content hosting companies (YouTube, Flikr, ISP’s, MLS’s, etc) to be allowed to remove copyright violating material or even links to infringing material in the case of search engines without being liable for the infringement. If these companies are sent a properly written and formatted DMCA take down notice, they are required to remove access to the material(s) within a short period of time.

    If you find your photos being used in an unlicensed manner online in an MLS or other venue, you can send a DMCA take down notice to the hosting company and it should be removed. The person responsible for posting the material is still liable. The content hosting company should have a record of who posted the material or at least the account used to post it and should send them a notice that their post was removed due to an infringement complaint. The poster can respond and rebut, but they usually don’t. I have read in MLS T&C’s that if an agent’s posting on the MLS is accused of copyright violation, the agent could be fined and ultimately have their membership revoked. The first offense is usually a warning. This leaves a RE photographer a route to minimizing unpaid accounts if they have stated in their licensing agreement that payment in full is required to be in compliance with the terms of the license. Not only would the photos of a listing disappear, the agent could receive a ding against them with the local association. If the MLS doesn’t remove the images in a timely manner after receiving a proper DMCA notice, they would become liable as well.

    Safe Harbor wouldn’t apply to a user of the image that had copied and used it illegally.

    Some of the links in Joel’s article cover all of this very well.

    Sorry Larry, your summary was confusing regarding Safe Harbor.

  • Also note, that if you have spent the money to register the copyright, you have a better shot at remedies if the person or company doesn’t remove the image. Also using digimarc or another competitive service can help you track images.

    Keep in mind, 90% of real estate photos or videos are only used once in an MLS or by agents and don’t command enough money to be worth the effort to pursue.

    The other 10% (and quite a few of the readers of this blog fall into this category) create incredible works requiring great thought, time and talent to produce. These are the images that should be registered and pursued if a violation occurs.

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