For years on this blog we've discussed, wined about and ranted about the fact that many MLSs claim that they own the copyright for photos that are uploaded by agents to the MLS. We've all pretty much known that this claim is BS but haven't have all the facts we need to act intelligently in this area. Back in September of 2013 a post I wrote attracted Joel Rothman and Steve Schlackman who both are Intellectual Property Attorneys in Florida. Joel and Steve promised to help us understand and cut through the craziness of MLS copyright rules so last month they wrote a series of fantastic articles called Does The MLS Really Own My Photos My Photos? This series is the best and most authoritative information on this subject that I've seen anywhere! Here is a summary of the material they cover in their series:
- Does MLS Really Own My Photos? (Pt. 1) - What are the rules for your local MLS? Joel is in the process of compiling MLS rules. He already has a 21 page spreadsheet of MLS rules that anyone can download. It is not yet complete, but it has rules from about 68 MLSs in the US. Joel also explains how Section 204 of the Copyright Act states that the only way copyright can be transferred to is the copyright owner must sign an "instrument of conveyance". The conveyance must be in writing and be physically or digitally signed. So it's not likely that you've transferred your copyright to the MLS accidentally or unknowingly.
- Does MLS Really Own My Photos? (Pt. 2) - MLSs own a compilation copyright (defined in section 101 of the Copyright Act) for the listings they compile, but photographers still own the underlying copyrights to the photos. Can a real estate agent that the photographer has granted a non-exclusive use license to, transfer copyright to the MLS? Unlikely, unless the photographer is working as an employee of the agent or real estate broker.
- Does MLS Really Own My Photos? (Pt. 3) - Should real estate photographers use a copyright notice? Yes, Steve explains how and why. Should real estate photographers use a written license agreement?
- Does MLS Really Own my Photos? (Pt. 4) - Copyright infringement is easier than ever before. But so is protecting yourself. Require agents to sign a written license agreement. Use metadata on photos. File copyright registrations regularly. Patrol the internet for those that are infringing your copyright.
I recommend that all real estate photographers read Joel and Steve's four posts that I've referred to above and follow their advice. This is essential information for all real estate photographers. You can't get any better information than this since these guys represent professional photographers in court.
I'd like to publicly thank Joel and Steve for compiling this fantastic explanation. They did all this as a response to my plea to help the real estate photography community cut through the confusion that is caused by so many of the MLSs in the US claiming that they own the copyright to photos uploaded to their sites.