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Palm Springs Board of Realtors Wants All Photographers to Assign Photo Rights to Brokers

October 8th, 2018

Patrick in Palm Springs recently told me that:

Palm Springs has two Boards of Realtors (CDAR and PSRAR) in the Coachella Valley (Palm Springs, Palm Desert, Rancho Mirage, Cathedral City, Indian Wells, La Quinta, Indio, etc.). CDAR has sent an email to their brokers stating they will require all photographers to sign an agreement assigning all rights to them. This is for all past shoots as well as future shoots.

Update 10/14/2018: Patrick wanted everyone to be able to see these 2 documents: 1-CDAR current rules and regulations. 2-Memo from CDAR with assignment agreement

There have been other attempts like this in other geographic areas for a number of years. Here is one example we discussed.

This approach by MLSs, Realtor organizations, and brokers arise for several reasons:

  1. There are annoying problems that can arise for MLSs, Zillow like sites, and Realtors that go away if Realtors just own photo rights.
  2. Real estate photographers are not unified in their attitude towards photo licensing. Larger companies and photographers that relicense their photos oppose signing away their rights but many high volume real estate photographers don’t want to spend the time and energy to defend their photo rights.

The rights of everyone involved must be considered. One solution to this issue that Joel Rothman has advocated for is to form a real estate photographers association. This post from 2016 by Joel where he makes the argument for an association of real estate photographers.

Primarily because of Joel’s leadership in this area, a real estate photographers’ association is well on its way to being formed but it is not yet complete.

So for these kinds of situations like this one in the Palm Springs area, photographers who are in favor of defending their photo rights need to make themselves heard by the local Realtor board and explain that photographers rights must be considered along with Realtors and MLS rights. That can be done but frequently, it takes the education of everyone involved. This is the ultimate goal of the upcoming real estate photographers association.

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39 Responses to “Palm Springs Board of Realtors Wants All Photographers to Assign Photo Rights to Brokers”

  • For one, I think an RE Photographers association is an excellent idea. It is tough enough for photographers working in the commercial field to protect their rights even when dealing with pro’s like art directors and graphic designers who do understand the rights of photographers. But in a market like RE where few do, it is especially difficult.

    RE photography is notoriously poorly paid in the field of commercial photography. So to add insult to injury by striping photographers of their rights of authorship is not only shameful but underhanded. If there is a concerted movement to do so, then there has to be a united and concerted movement to push back, first by education and then backed up by representation. So I am all for it.

    It may just creep forward in certain areas, but if those regions succeed in violating artists rights of ownership and copyright, then the large organizations, who clearly have nothing but contempt for photographers, will just keep on going from one victory to another.

    Perhaps, if we offered to double our fees for the sale of ownership, there might be some wiggle room and some benefits gained. And perhaps just a tad more respect and value of the product we create.

  • I think Peter brought up a potential solution. I have actually stated this exact number in the past. If RE photography rates doubled across the board, I think that would be an overall fair compensation for not maintaining copyright. I sincerely think it would be fair for everyone.

    It would not even be that bad for us. Think about it, to karket yourself you only need a photo or two per nice home. You would just shoot an extra image, light it a bit better, and keep that one or two for yourself for promotion, marketing etc.

    They get what they want, our income doubles. I think it would be fair, although of course they will not agree to those fees, but kaybe they can be convinced if they understand copyright.

  • A Toyota will do just fine, don’t really need a Lexus. That is the problem with doubling rates. Some photographers are either clueless or don’t care and take advantage of the pricing gap. Realtor’s are clueless anyway (and I say that as a Realtor). While they already own the copyright to their glossy narrative writeup of the property covered under the exact same copyright laws, yet 1) don’t realize it, and 2) don’t obtain the extra protection registering their narrative at least quarterly with the U S Copyright office. Notice how in the MLS power grab, even they don’t suggest as a benefit the copyright registration, not budgeting that cost, degrading the product to fair use only.

  • These image stealing MLS boards need to be sued out of existence. It’s hard enough trying to compete with the lowball photographers out there that don’t have the first clue how to run a business, so doubling prices won’t work. The lowballers already make a bad name for true professionals and would probably roll over like whipped dogs and comply with stealing images by these boards so that would leave quality photographers out of business. I, for one, will NEVER give up my copyrights to idiots that run these boards. Fortunately I have been in the photography business long enough to know how to shoot other types of photography and will start to pursue a different direction for my income. Realtors already think they are buying hamburgers at McDonalds and that there is no difference between one photographer and another. Most are totally clueless as to what a good image is in the first place and only look at price.

  • I can double my income?

    As long as there are photographers willing to work outside of an associations guidelines (can an association force compliance? Maybe? I don’t know the answer), photographers not joining the association, large tour companies with market power, companies like Redfin having their own photographer network, platforms (Zillow etc.) not caving in etc, I don’t see what affect the association will have.

    How is the NAR so successful with their REALTOR trademark? Copy that somehow and spend the advertising $$ they do and we might have a chance?
    I’m just throwing stuff against the wall to see what sticks. The only association I’ve ever been a part of is the NRA so I admit I don’t have deep knowledge of how associations work.

  • They want something, ownership of photos, and I do not think I am stretching when I say when anyone wants something, something had to be given in return.

    They do not just think they can have ownership, and give nothing, do they? Even if they do, just set them straight.

    I think about 98% of my real estate images turn out to be completely useless to me. In fact, I may relish purging that swill off my hard drives. So, there is some room for negotiations here without us losing hardly a thing in my opinion. A one liner at a board meeting seems like it could set everyone straight, and make them realize double is a bargain to own images. “You go to see a movie for 12 bucks, but to own it and be able to profit from it in any way you see fit, forever, would cost a bit more”. How is anyone even going to pretend they do not understand that?

  • Pece

    It’s the easiest solution for them (add a check box or line to sign on) and they have market power.

  • I am in on forming a RE Association. Not only will it help protect us as photographers on this issue, there will be other issues coming up at some point in time that might need to be dealt with. By having an association, we will help each other become more educated and there is always strength in numbers.
    Real Estate agents in my area may not be willing to pay more, but education and strength will help protect us as professional photographers.
    Please keep us updated on the forming of an association.
    Thanks!

  • I completely agree that we need to have a real estate/architectural photographers group and for us to inform the local MLS’s and local real estate offices the policies on usage and licensing photos.

    Another thing is that when the property is sold or contract is ended with one realtor, the photos on all IDX sites need to come down for that property.

    I would love to join the association. We need this before we become just another work for hire. And I think that photographers must abide by the rules and not give away their photos.

  • Why don’t realtors just assign us their listings?

    Here’s the thing. If YOU don’t stand up for your industry, nobody else is going to do it for you. This is an intellectual property right business. IF you give that away, or give it up, you might as well start looking for a new career. And that, in turn, is when this industry fails. We saw complete failure happen in the portrait industry, and it took less then a decade.

    Palm Springs can go…. (you know how this sentence ends)

  • You cannot be a Real Estate Broker without being licensed by the State you are doing business in.
    You cannot be a Realtor without belong to the NAR National Association of Realtors
    You cannot use the rmls / mls without belonging to the local chapter of the state chapter of the NAR.

    So, the local rmls / mls has a very big stick, if you want to use their listing service (which you don’t have to use, but then who will know the property is for sale). then you have to be a Realtor.
    The NAR is huge but they are an association of Real Estate Brokers calling themselves Realtors. They are not an association of Real Estate Photographers.

    The only way to win is to have the State require all photographers of property for sale (like the FAA and drone pilots) be licensed by the state, do you want that to happen? Personally I don’t care about the images after I have taken them and been paid, what I do care about is having it shoved down my throat. Ask my nicely or get out of my face. How many people are out here calling themselves Real Estate photographers? This is the largest RE Photography forum I know of. Linkedin may have a larger number but their groups are dead.

    My point is that this forum by it’s size, or lack there of and the number of photographers actually showing concern is minimal, we as a group just doesn’t really exist.

    So when the time comes, read the small print, you will find that their attorneys have written the contract so they not only own the photography, but own you as well. Take your black marker with you.

  • While the copyright issue is important, my health is more important! I hope this association can negotiate with health insurance companies to help bring down insurance costs for us self employed. $1300/mo for a family of 4 is stupid and insane.

  • What’s happening is that the Coachella Valley (Palm Springs, Palm Desert, Cathedral City, Desert Hot Springs, Rancho Mirage, Indian Wells, La Quinta, Indio, Coachella and Mecca) have two Boards… CDAR with 3,000 member is located in Palm Desert and PSRAR with 800 members is located in Palm Springs. Over a year ago CDAR inserted into the Agreement they have with their Members/Realtors that the Member is responsible for obtaining the Photographer Release from the Photographer. The Photographer Release assigns all rights, exclusively, to the Agent/Realtor. When the Agent uploads the images/video to the MLS, the Agent then automatically assigns all of those rights to one or all (Im not sure of the breakdown) CDAR and/or The California Association of Realtors (CAR) and/or The National Association of Realtors (NAR). PSRAR (the other Coachella Valley Board) has no such language in their Agreement with their Members (that we know of)…. however the two Boards have been in discussions of a merger. Over the past year CDAR haven’t enforced what the Agents/Realtors agreed to in their Agreement… until now. A lot of the primary photographer had a meeting and discussed the situation… we all came to the same conclusion… we don’t like it but we are not opposed to signing away our rights however it would only be fair to be paid more since we are giving more. Many of us have already turned down working for the Agents who are requiring the Realease. For instance Tarbell, has said that all their Agreement MUST get the Release. Other Agencies have not said anything and most of my clients have said that this will reduce the quality of the images and are very concerned. The Photographers have formed a local association… AREP… to organize and fight back.

    One Agent sent the following text to one of the Photographer who refused to sign the Release:

    FYI THERE ARE TWO LOCAL ACCOMPLISHED PHOTOGRAPHERS WITH OVER 20 YEARS EXPERIENCE, EACH, WHOM DONT NEED ANY ADDITIONAL COMPENSATION BEYOND THEIR BASIC SERVICE OF PROVIDING SHOTS OF HOUSES, WHO WILL RELEASE ALL COPYRIGHT OWNERSHIP. I WILL HELP THEM DEFEAT YOUR GREED AND YOUR PRIMA-DONNA SELF-ABSORBED LAUGHABLE COLLEAGUES. HOLDING REALTORS HOSTAGE IS PROFESSIONAL SUICIDE… WELL BEYOND STUPIDITY. GOOD LUCK TO YOU AND YOUR UNJUSTLY GREEDT PARASITICAL COLLEAGUES !! NOBY NEEDS YOUR MONOPOLISING BS. GOOD LUCK BLACKMAILING YOUR CUSTOMERS !!!

    CDAR has called a Broker meeting on October 24th to specifically discuss the copyright issue.

  • They are attempting to change a contract. Who on earth tries to change a contract in their favor and feels they do not have to give up anything more? Can you imagine me telling Nikon, “no no no, I get a ten year drops and spills warranty on the D800, and I will pay the same price, not a penny more, don’t be greedy!” lol. Sorry but this stuff is lala land, I can’t, even…

  • Anyone who doesn’t want to sign one of these is free to not sign it. Does it suck? Sure but what are you losing? Seriously, give me a dollar figure you will lose over the next 12 months.

    The biggest issue, and the only one I really care about, is agents giving/selling the photos to the next agent of they lose the listing. Well, that and if the Zillows leave the photos up and another agent can simply use them.

    Now, how the bleep are you going to fight that? What is an association going to do about that? Specifics please.

  • I need to point out that even though the majority of reader comments on this issue over the years is always loudly in favor of defending your copyright (like most of the comments above) polls we do on this subject show that as little as 12% of PFRE readers actually register and relicense their photos.

    See – https://photographyforrealestate.net/2018/02/05/on-feb-20th-the-cost-of-us-photo-copyright-registration-goes-up/

    This reality is what creates the attitude of Patrick’s agent comment!

  • Possible solution…

    Offer 2 prices. 1 price for a link to a slideshow with the photos and another price to make the photos downloadable.

  • The PPA already exists. Why not work with them and use their existing resources rather than starting a new real estate association from scratch? The PPA is the largest photographers’ group advocating copyright protection for all photographers on a national level.

  • Any update on the $80,000,000 lawsuit against Zillow?

  • There’s a shift going on here that many people aren’t seeing or just don’t care about. In the Facebook groups, numerous photographers are “wanting to move into real estate photography” and there is, daily, a barrage of repetitive posts asking what lens to use, is crop sensor enough, people complaining about “vertical Nazis” etc. Those photographers are coming over and bringing their old practices with them from event, portraits, wedding photography and whatever else, and some decide to offer advice to others about copyright in the almost daily posts from someone whose photos are being appropriated by a stager, designer or realtor. That advice is almost always dog****. Why? Because how can you offer advice on copyright to a real estate photographer based on your previous experience in newborn portraits (or whatever), where by and large, photographers sell copyright to the photos the customer has picked and chosen? You get people saying, “As far as I’m concerned, I got paid! They own them!” Whether that last one is from previous experience in another photographic discipline or from outright ignorance or apathy, that depends. I belabor these points a lot here and sometimes feel like I’m beating a dead horse, but in truth the dead horse beats itself.

    I get to the point where I want to tell them off. I’m no lawyer, don’t get me wrong. I don’t and can’t claim to know as much about copyright as a copyright attorney would. But, in sort of a skewed and not totally relevant analogy, if you’re a patient of a terminal illness, you get to where you know as much about the disease as the doctors treating you because of necessity. So it should go with real estate photography (or with any kind of photography, really). If we don’t take it upon ourselves to get educated about our own rights, no one is going to educate us without a hefty retainer in the form of a personal check. We have to know these things, and honestly, we need to nip bad advice about copyright in the bud before this crap spreads like a cancer. For every photographer who doesn’t screw around with people taking their photos, there are ten who either don’t know or don’t care. From those ten, half are flippant about it, saying, “Your photos aren’t worth much anyway. Why fight this? It’s not worth it!” Because if we don’t, our profession will go the way of the dodo bird. It may not be worth it immediately, and may never be to any given individual photographer. But neither will stemming climate change–that’s for future generations. I think the most flippant of photographers should hang up their hats and go do something else, because they contribute every day to the death of our profession with their flippancy and apathy and terrible advice they have no business giving. They are the ones who won’t care whether they are still standing later. It’s like living in an apartment building and saying, “Go ahead and use your grill on the tiny balcony, the fire codes don’t matter,” except you’ve got a place to go when the building catches fire (yes I know I’m heavy on the analogies).

    With that said, I feel like I still tell people every day not to get lawsuit happy, because that hurts us too. Not only can you not really sue someone and hope to even have the case heard without registering your copyrights, but there are steps that should be taken before considering a lawsuit. What IS the photo worth? What could you potentially make off it in the future? What could the infringer make off it? What value to you is this client? Could it have been ignorance (in most cases, in our field anyway, it’s Realtor ignorance, and it CAN be corrected)? Are you burning bridges? So you get two extremes–people getting overly litigious over small infringements when they really can’t or shouldn’t, or people not caring enough.

    How can a Real Estate Photographer’s Association help? Community. Someone has their photos infringed, maybe someone’s a lawyer who can give general advice really quick. Maybe a pre-paid legal fund or service can be created. Maybe people can pool together money for someone who can’t afford an attorney retainer, or membership dues can help in these regards. A pre-paid legal service (perhaps included with membership or an extra fee) could draft C&D and DMCA takedown letters. And many other benefits I can’t think of. And, any photographer who doesn’t give a crap can just not join, so it would be my hope that only photographers who really care would want to be a part of this–so in the end maybe this hypothetical association would be filled with people who are passionate about their work and the business as a whole and want to see it continue on.

  • I think people are missing the point here.

    The reason why the powerful American Association of Realtors want the rights to photograph is a scheme cooked up by their lawyers. They see the writing on the wall that eventually Zillow and Zillow-like agencies will have to fork over some money for the use of photographs. By obtaining full rights from photographers, the Realtor Associations want the licensing fees to be paid to them exclusively.

    Essentially this is a giant scheme to deprive photographers of potential future licensing money from the Zillows of the world.

    By giving away your copyright, you are sacrificing far more than your dignity.

  • I’m with Andrew Pece on starting with a 2x price factor for Copyright or unlimited rights assignments. Looking at my third party licensing over the last year, the images that resell the best are from the more expensive homes which are often professionally decorated and are prepped much better for photos so I’d have to put in a surcharge, perhaps based on listing price, in addition to the increased base fee. Since I would have no further interest in photos where I have assigned the Copyright, I’d have no need to archive those photos either. Agents and brokers would have to be responsible for archiving the images once delivered and confirmed as received or pay a periodic maintenance fee. It would be better for me to just delete the images save any that I have negotiated to use in my own portfolio. The customer would also be responsible for all releases and indemnifications since the images are their property. I would also assign Copyright on a job by job basis. I would not enter into any blanket “Work Made For Hire” agreements so there is no confusion should I be hired for images that are made for a different application. I may also tack on another $10 as an administrative fee to fill out the form and maintain copies with my invoices.

    Zillow is getting popped for using images in a way that was not anticipated by the agents or photographers. The local MLS’s may just be scared into CYA mode by a bunch of lawyers or they might be looking at being the ones to collect a usage fee from companies such as Zillow. They’d be in a position to sell an intangible product that they get for free.

    I would not be amenable to just handing over my Copyright or assigning unlimited/exclusive rights as standard practice for what I currently charge. I’d be much better off putting more effort into other segments of the photography market. I like making RE images. It’s not not as high stress as school photos or as being an assignment photographer that must come back from every job with high quality photos where there is little to no control such as with sports and news. I am willing to accept lower pay in exchange, but I’m not going to earn less than a worker at an Amazon fulfillment center doing it.

  • One last thought, the Realtor is caught in the middle, this isn’t anything they want or care about. It’s more than likely these 80 million dollar law suits that’s forcing the issue. A few get rich, the rest of us get the shaft.

  • Has anyone given thought to building a platform that addresses everyone’s concerns?

  • This seems like fallout from the law suit filed by George Gutenberg for $81m against Zillow. Nice for him and his retirement, but in a way screws the rest of us IMO. For me Zillow and the other outlets that pick up my photos from the MLS for the purpose of marketing the property for sale are all just part of the deal with this type of work. I’ve had instances where I’ve sent DMCA takedown notices to zillow, truilla, realtor.com, etc… for clients failing to pay, and never had a problem with the other marketing outlets honoring my request. I would expect more local associations following suit in the future.

  • I’m a real estate broker in Oregon. I was a news photographer in a past life so when I became a realtor I adopted digital photography equipment and started taking my own real estate photos as a way to differentiate my business from the hordes who used point-and-shoot cameras and did a horrible job. There were no cameras on the flip-phones then. Now everyone with a camera is a “photographer”. I quit Instagram last week because if I saw one more waterfall photo I knew I would become physically ill. And those Instagram accounts all say “For Prints see my Profile”. Really….people are buying prints from these people? No. There are so many wedding photographers in the small ski town I live in that it makes me laugh. Every young woman with a DSLR is now a wedding/newborn photographer. Their photos, for the most part, are crap but their peer group doesn’t know any better so they hire them. I received the following from a local “real estate photographer” yesterday. It says all you need to know about what true photographers already know they are up against. And remember – the average age of a real estate broker in this country is fast approaching 60 years of age. So the younger people getting into the business think it’s just dandy to see an email like this and hire the guy. Here is that email:

    Hello,

    Our team of professional photographers shoot homes, apartments, land projects and commercial buildings all over Deschutes County. The company is owned by a Real Estate Agent licensed in Oregon and California with over 18 years of experience, and understands how important professional real estate photography pictures are for marketing your property.

    We are FAA Drone Certified to take photos of residential and commercial buildings.

    Let my team of professional photographers help you show your property with stunning professional photos.

    1) HDR Photography Packages
    2) Drone Photography

    Basic Package Prices:
    35 HDR pictures – $100.00
    35 HDR pictures + 5 aerial drone pictures – $150.00

    The prices above includes any size house within a 20 mile driving radius of Bend. If the diving distance exceeds 20 miles then an additional fee of $.52/mile will apply.

    Additional services available – Ask for pricing!
    – Drone Video
    – Virtual Tours
    – Virtual Staging

    Limited Promotion – Receive a $50 referral fee credit towards services for every new customer referral if they use my services. New customers name must be provide to track referral fee credit.

    Please e-mail me schedule an appointment.

    Best Regards,
    Real Estate Photos

    So there you have it. The future of the real estate photography business. I live in a town of only 80,000 souls and make over $200K a year selling homes. There is no way I would want to be competing with these “photographers” doing real estate photography full time. Wedding photographers I have spoken with who are over 50 years old say the same thing. At the end of the day, real estate agents are CHEAP. Really cheap. Sorry to babble-on. I feel your pain.

  • The $80 million headline for George’s suit is if a judge awarded him the full $150,000 per infringement penalty which would be very extraordinary. Zillow does know better and has had to defend a large case in the past so they aren’t going to get much sympathy, but the award is up to the judge/jury. If Zillow told George or his lawyer to “just sue us” in writing, that would likely put the award at the top of what the statute allows. Frankly I’m surprised that I haven’t seen anything that says the case has been settled already. If Zillow were to make an offer to settle at $10 million, delete the images in question and promise never to steal any of George’s images in the future, George and his attorney could come away with nice checks in hand without having to spend a prolonged period of time in court. On the other hand, if Zillow wants to fight, George could very possibly end up with 2-3 times the payday.

    It’s very easy for MLS’s to keep from having the same issues. An indemnity clause in the contract that makes the agent/broker responsible for anything they upload which is likely already in place and stricter enforcement of penalties when infringement complaints are lodged. Photographers aren’t looking to take people to court, they just want to be paid for their work. Copyright infringement needs to be treated the same as other crimes by the local real estate associations and there won’t be any problems.

  • Starting an organization of RE Photogs is going to be an uphill battle and the RE associations know it. The fact is that the photogs that have full time skin in this business is far less than those doing it as a “side job” and they will influence if it actually works or not.

    I am with Andrew P and Ken B on this, yet I believe that some “part timers” will gut any effort.

    Something that a lawyer friend brought up about all this is that if we end up “working for hire” that opens the door for employment suits against the individual agents, brokers and companies by the photographers

  • Does anyone know for a fact that this is a new MLS rule for that area? It has happened that brokers have misconstrued or misrepresented the rules to photographers, or photographers have misunderstood what their client was asking for.

  • “Over a year ago CDAR inserted into the Agreement they have with their Members/Realtors that the Member is responsible for obtaining the Photographer Release from the Photographer. The Photographer Release assigns all rights, exclusively, to the Agent/Realtor.” This is incorrect. I have read the current CDAR MLS rules (have Patrick and Larry?), and they specify the following:

    “By submitting photographs/images, including but not limited to photographs, images, graphics, audio and video recordings, virtual tours, drawings, renderings or any other representations (collectively referenced in these Rules as photographs and or images) to the MLS, the Participant and/or Subscriber represents and warrants that he or she either owns the right to reproduce and display such photographs or has procured such rights from the appropriate party, and has the authority to grant and hereby grants MLS and the other Participants and Subscribers the right to reproduce and display the photographs in accordance with these rules and regulations.” — from Section 11.5-Photographs/Images on the MLS.

    The above language means that photographers can license photos to real estate agents in the usual way, without giving up copyright to the images or granting the agents usage rights beyond what they actually need to market their listings.

    Larry should have vetted this information before presenting it here and encouraging a lot of ill-informed debate and discussion.

  • THIS IS THE SPECIFIC LANGUAGE USED BY CDAR WITH THEIR MEMBERS… Mr Eichler, Perhaps you need to learn to read a little more:

    11.4 Authority to Put Listings in MLS Compilation. By submitting any property listing content (e.g., photographs, images, graphics, audio and video recordings, virtual tours, drawings, renderings or any other representation, descriptions, remarks, narratives, pricing information, and other details or information related to listed property) to the MLS or inputting listing information into the MLS compilation, Participants and Subscribers represent and warrant they have obtained from the seller or any third party providing any listing content the right to enter the listing content in the MLS and to transfer all rights, title and interest, without any reservation, to the MLS with full understanding such listing content shall become the sole and exclusive property of the MLS and can be used by the MLS in any manner it elects, including without limitation the production of derivative works. Participants and Subscribers warrant and acknowledge they have obtained exclusive rights through license or otherwise to provide the MLS with an exclusive, transferable and nonrestrictive license to all of the information, data and other material submitted with the listing content, including, but not limited to photographs, diagrams, renderings or other materials. Participants and Subscribers understand and acknowledge the MLS listing content is conveyed and transferred to the MLS and Participants and Subscribers have been authorized to grant license and also thereby do grant authority for and license the MLS to include the property listing content in its copyrighted MLS compilation. By submitting any property listing content to the MLS, Participants and Subscribers represent and warrant that they have been authorized to report information about the sales, price and terms of a listing, have authority to grant and also thereby do grant authority for the MLS to include the sold information in its copyrighted MLS compilation.
    11.5 Photographs/Images on the MLS. By submitting photographs/images, including but not limited to photographs, images, graphics, audio and video recordings, virtual tours, drawings, renderings or any other representations (collectively referenced in these Rules as photographs and or images) to the MLS, the Participant and/or Subscriber represents and warrants that he or she either owns the unlimited and unencumbered right to submit, convey to the MLS all rights to the photographs/images, reproduce and display such photographs or has procured such rights from the appropriate third party, and has the authority to grant and hereby grants the MLS and the other Participants and Subscribers the right to reproduce and display the photographs in accordance with these rules and regulations. Use of photographs by a subsequent listing agent requires prior written authorization from the originating listing agent or other appropriate party with the legal right to reproduce and display such photographs. Branding of photographs and or images, including but not limited to photographs displaying “for sale” signs posted on the property, is prohibited. At least one (1) photograph or image accurately displaying the listed property (except where sellers expressly direct that photographs of their property not appear in MLS compilations) is required to be posted on the MLS within 5 days of submission of the listing in all categories other than business opportunity. The MLS reserves the right to remove any non-compliant photographs and or images from MLS display should Participant or Subscriber refuse or fail to bring said photographs and or images into compliance with the requirements of this rule after being notified and
    27

    instructed to correct by the MLS. Once submitted, the photographs become the exclusive property of the MLS and neither the Participants, Subscribers or a third party taking the photographs may assert any right to the photographs, except as specifically granted in writing by the MLS.
    11.6 Copyright Ownership. All right, title, and interest in each copy of every MLS compilation created and copyrighted by the MLS, including, but not limited to photographs, diagrams, renderings and depictions, and in the copyrights therein, shall at all times remain vested in the MLS. The MLS shall have the right to license such compilations or portions thereof to any entity pursuant to terms agreed upon by the Board of Directors.

    CDAR also provide a PROPERTY IMAGES AGREEMENT in accordance with the above language.

  • Patrick, I have read and cited the language in the MLS rules as currently posted on the CDAR MLS website, from section 11.5 of those rules. The language you cite for that section is different from what is currently on the CDAR website. From where did you get the language that you cite?

    Here is the link to the CDAR MLS rules as currently posted on their website: https://www.cdaronline.org/images/assets/Forms/CDAR_MLS_Rules_and_Regulations_Updated_01-05-17.pdf

  • It would be great to have Joel chime in. Isn’t it required that assignment of Copyright is done by a for-pupose document and cannot be conveyed by a blanket agreement such as Patrick posted?

    If agents/brokers were employees of the MLS, the MLS would own the Copyright upon creation or if there were a “Work Made for Hire” contract, that would convey Copyright to the MLS. Yes?

    If the text Patrick posted is canon, I would not be make any RE images for agents in that area. It would be a huge train wreck if I went after somebody for infringement and found they sub-licenesed the images from the MLS. That would be me throwing my customer under the bus since the grief would trickle down to them and if there were also an indemnity clause in the contract, the agent would be on the hook for all legal expenses and any awards without even having to be notified about the case.

  • Ken, from US copyright law:

    204. Execution of transfers of copyright ownership
    (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

  • @David Eichler. I have seen that but, it would be nice to have an attorney’s interpretation of the MLS wording that Patrick posted. Some blanket agreements are valid. If I were to work for an RE office exclusively, I could execute a blanket agreement with them where I reserve the Copyright to the images I make even though I am an employee whose job is to make the photos. In that case, there would likely be language in the agreement that gives the office some broad rights in exchange though maybe not transfer/sale. I wouldn’t have to execute a new agreement for every assignment. The US legal system is a bit wonky since there is the written law and then precedence on how it is interpreted. As a layman, I would interpret 204(a) as requiring a new conveyance document each time naming the images being transferred. I don’t know if that’s how judges are interpreting it or prior decisions that might be used to force another interpretation. A good attorney should know.

    At one point I was an associate member of one of the local MLS’s so I could attend meetings and have the chance to do some networking. I can’t remember if it was an article or just my own thoughts that made me think that by being a member and signing the membership agreement, I was bound by the MLS’s rights grab should they suddenly decide to put one in place. I didn’t renew to keep some distance between myself and the MLS. That membership also created a direct relationship between me and the MLS. By not being a member, I am not subject to their rules and there is an arm’s length distance. As I noted above, that puts my client in the hot seat so if I pursue an infringement case where the MLS sub-licensed some images, I am sacrificing my client that hired me to make the images and it’s easy to see that word would get around very quickly and I wouldn’t be hired to make RE images in that territory any more. At that point it’s not worth doing it any more and I’d be better off putting more time into shooting school sports and events.

  • It turns out this post was instructive after all. I went to the NAR website and looked up their rules regarding MLSes and photos, and discovered that MLSes are not allowed to require their members to transfer ownership of the photos to an MLS. Furthermore, the NAR rules make it clear that it is perfectly acceptable for a photographer to retain copyright to the photo and license the rights necessary for inclusion in the MLS. Thus, while a brokerage or an individual realtor might require it on their own, any claim that an MLS requires ownership of the copyright to the photos is either false or the MLS is in violation of NAR rules.

    Here is the relevant language on the NAR website: https://www.nar.realtor/handbook-on-multiple-listing-policy/participants-rights-section-15-ownership-of-listing-and-listing-content-policy-statement-785

  • Thanks David. The text on that page looks like very rational and well thought out policy. It’s certainly inline with the licensing I give with my standard RE images and no problem at all.

  • It would seem to me that Section 11.4 of the updated CDAR rules that Patrick has provided is in direct contradiction to the NAR rule that MLSes cannot require members to transfer ownership of their listing content, including photos, to the MLS.

  • Ken and David,

    Awesome work. I would like to see the both of you on the board of the AREP…Association of Real Estate Photographers. Seriously.

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