Michele in Maryland just sent me an example of the current terms that agents agree to when submitting photos to her local MLS:
Photo albums are uploaded on a per listing number (ML#) basis and are not transferable to another listing. So that you may continue to use the image in your business, MRIS grants to you and your broker the perpetual right and license to use, copy, adapt, modify, display and distribute the image for your own business purposes, including posting the image on your own web site, your broker's web site, or in your own property listings, in any form or manner now or in the future available. All images submitted to the MRIS Service become the exclusive property of Metropolitan Regional Information Systems, Inc. (MRIS). By submitting an image, you hereby irrevocably assign (and agree to assign) to MRIS, free and clear of any restrictions or encumbrances, all of your rights, title and interest in and to the image submitted. This assignment includes, without limitation, all worldwide copyrights in and to the image, and the right to sue for past and future infringements.
If and to the extent you retain any copyrights or other ownership rights in or to the image despite this assignment, you waive and agree never to assert any such rights against MRIS or its successors, licensees, or customers, including without limitation, any moral rights that you may have in or to the image. You warrant that any image submitted is your sole property, that no third party owns the image or any rights in or to the image (or any rights that, to your knowledge would undermine this assignment), and that you are not submitting materials for which you do not have the right to make the assignment described above. MRIS reserves the right to accept or decline any image submission and may, at its own discretion, remove any image from its systems for any reason it deems to be appropriate. Inappropriate information includes, for example, images containing broker or agent name/contact information, website addresses, personal property, and obscene or profane material.
Yes, there seem to be many MLSs around the US that have this kind of language that make it sound like the MLS owns the uploaded photos. As a long time PFRE reader, you probably already know, that Joel Rothman has assured real estate photographers that photographic rights cannot be legally transferred without the copyright owner (the photographer) signing a document to that effect.
The problem with this kind of MLS language designed to protect the MLS is that it creates a confusing environment for agents that are asked to sign license agreements by photographers who intend to resell photos and it encourages agents to do their own photography to avoid all this craziness.
I guess the best approach to counter this foolishness is to publicize Joel's advice and successful litigation by real estate photographers.
Thanks Michele for the example!