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Copyright Registration and the Importance of "Chain of Evidence Custody"

Published: 09/03/2020

Author: Mike Boatman

This is my personal viewpoint. This is my opinion based on my personal experiences. Other people have different experiences and therefore, their viewpoint may be different than mine.

Understanding What You’re Up Against

I will boldly repeat something that I stated in my previous article because I believe it is worth repeating: “If you’re not going to defend or enforce your copyrights, don’t waste your time or money registering.”

Make no mistake about it; when you enforce your copyrights, you are going to get into a fight. Your opponent has already proven that they are not bound by moral behavior or legal and civil rules. So why do you think this fight is going to be fair? If a person was willing to steal from you, do you honestly think they are going to tell the truth in depositions?

Thieves and liars will try their best to paint you as the bad guy using every possible spin to convince the court that you’re an evil person who’s out to extort money from them. They will claim that you intentionally set up a trap, that you did not convey terms of use, and then sprung copyright litigation on them as an extortion to strong-arm money from them.

A liar can be very convincing, but what a liar can’t change or overcome are facts that are backed up with evidence.

Understanding the First Wave of Attack

The first attack by defense attorneys is their attempt to void the copyright registration. If they are successful, you will be forced to re-register the images. But by then you will be outside the three month grace period from first publication and no longer eligible for statutory damages or attorney fees.

The copyright registration system that I’ve developed was done with numerous direct conversations with William Briganti, Assistant Chief, Visual Arts and Recordation Division, U.S. Copyright Office. Then I participated in a beta program, where a precisely detailed procedure was given to me and I was supervised through numerous registrations to get the procedure down perfectly. The procedure requires a tremendous amount of prep work on exactly how the image deposits are to be treated and prepared for the registration process.

The Second Wave

Once a defense attorney determines that the registration is rock solid, they are going to move on to attacking the creation of the images and looking for technical reasons to void the deposit. For example, did your assistant photograph any of the images and if so, were those images also copyright registered on this application? If the answer to these questions is ‘yes’, the registration is void.

The Chain of Evidence for Custody

You have to build an archive system that supports copyright registration. This is the chain of evidence custody (the facts) that all the spin in the world can’t negate, deny, or set aside. As important as copyright registration is, the chain of evidence for custody is crucial to a successful outcome. It starts with photographing in RAW, then archiving the RAW images in a D.A.M. (data asset management) system. You need to program the metadata in your camera to record your formal copyright notice as part of the creation of the image.

a) The Importance of RAW Files to the Chain of Evidence

RAW formats are one directional. You can create any format from a RAW file, such as a JPEG, DNG or TIFF but you can’t create a RAW format from an existing image. One photographer told me that after he creates his JPEG’s and delivers to his clients, for the sake of storage, he deletes his RAW images. A defense attorney is going to challenge whether or not you actually created the image versus copying it. Without the original RAW file, you can’t prove that you created the image.

In the discovery process, I’ve had defense attorneys demand that I show them the original RAW images with metadata proving embedded copyright notice, then show them the images that were delivered to the client, and lastly a detailed comparison to the actual infringed image. This is a chain of evidence and I’ve been asked for this chain numerous times. Finally, they want to see the chain of sequence by which the copyright registration deposits were created.

It’s a lot easier to produce the demanded evidence when it’s all properly organized in a D.A.M. system that was pre-designed to produce this chain.

b) The “Worthiness” of Your Photos

One of the other favorite attack tactics is the challenge of whether or not the image is worthy of being copyrighted. In other words, how much creativity and individual choice did the photographer put into the creation of the image? If you’re using lighting, this is a very easy argument to win. If you’re using only HDR it’s still winnable but may require a few extra words of explanation why your image is unique as compared to someone else coming into the room and setting up in the exact same spot and shooting the same image.]

To date, I believe every single real estate image has been challenged as to the copyright worthiness or whether or not my images qualify creatively to be copyrightable. As insane as this sounds, defense attorneys will throw everything at you, no matter how ridiculous it may seem to you, just to see if anything sticks.

I’ll Say It Again

There is no way to overstate this point: It’s a fight, and you’re going to be challenged. Nobody is going to roll over and willingly admit that they stole your work and then write you a six-figure check. I once heard it said that a poor man will walk a mile to save a dollar and a rich man will walk five miles. In copyright litigation, you’re likely up against a financially successful business that has demonstrated that they are not bound by moralistic thinking or the rule of law. To what extent are they willing to go?

In my mind, the choice is simple. You can be a photographer that takes no professional responsibility, that allows anyone to steal from you and thanks them for the privilege of stealing your work. Or, you can run a business that recognizes the value of your product. You can conduct yourself in an upfront, ethical manner and be professionally responsible to the entire industry of photographers.

If your business model is to transfer dual ownership or complete ownership of your images to your client, then be ethically upfront about it. I’m not going to criticize anyone for choosing this business model--it’s your choice to make. What I will criticize is someone who rights manages their work but then refuses to defend their copyrights. This is professionally irresponsible, diminishes the professionalism of the entire industry of photography; and is extremely damaging.

Do a Google search for D.A.M. system for photography. One of the best was designed by an APA commercial photographer. You need to build an archive system for your RAW images, for the images that were delivered to the client, and the images that were deposited per application with the Copyright Office. Are you archiving all your emails? You should, as it’s evidence. You need to archive and save in a D.A.M. system all your emails. As such, don’t put anything in emails that you don’t want the defense attorneys to read. In the demand process, they will probably ask for all of them. This has happened to me twice.

This article would be way too long if I were to detail out the procedures for your archive system, and it probably wouldn’t be effective because each of us have our own way of doing things. But being properly organized in a manner that we can explain and defend is critical in a copyright fight.

Additional Resources for You

  • Here is a link to my Dropbox that contains instructions for preparing your photos and documents for registration. In it, you will find three PDFs. Two are identical with the exception that one has screen capture images. The third is from Kerry Bern, showing how he uses Adobe Lightroom to track images for the next copyright application. To date, none of my copyright registration applications have been rejected or returned from the Copyright Office nor has a single application been voided by a defense attorney. To do it right is complicated. There’s a lot of preparation that must be done in a particular manner so that the actual registration application process goes smoothly.
  • The nature of copyright infringements has changed and is evolving. Third-party infringers are now harvesting images from aggregators' databases. A really great article on how to address copyright with your client is in my blog titled, Is Your Photographer Registering Third-party infringements.
  • Basically, everything you wanted to know about US copyright law can be found here. Written by Carolyn E. Wright Esq., ii is easily understandable language and searchable. You can also access copyright information from Lynda.com; interviews with Carolyn E. Wright. Also please review Carolyn’s latest blog February 17, 2020 titled, Learn How to Register Your Copyrights with Instructional Videos. Disclaimer: I have not watched the instructional videos.
  • Lastly, for additional resources and good reading, you can also click here.

A Final Consideration

I cannot say this forcefully enough--your work needs to be registered as published images. Even if you’re a photographer outside of the US, you can copyright register your images in the US Copyright Office for the same fees as a US citizen. This allows you the same protections and eligibility for statutory damages and attorney fees as US citizens for all infringements in the US. This is substantially different than international law which only allows you to be paid actual damages.

In Conclusion

My goal has been to give you a realistic glimpse of the process of defending your profession. For me, when my work is stolen, it is like someone just punched me in the kidney. I just want to throw up. I physically get sick to my stomach. Make no mistake; in my opinion, it is highly probable that your work is currently being infringed.

The choice whether or not you defend your profession is yours to make.

31 comments on “Copyright Registration and the Importance of "Chain of Evidence Custody"”

  1. Brandon,

    How big is the independent real estate photographer community? How many unique visitors do you get on a monthly basis? If I wanted to advertise on your site, these are critical questions I would expect an answer too.

    I ask these questions because how in the world could we expect to change the attitudes toward copyright if these articles don't have the necessary reach? If only 10% shoot raw. If even less register. And on top of that, have a rights managed workflow AND have all agents sign agreements? I'm betting most tour companies don't do this. Does anyone think agents will simply be pushed into the arms of the tour companies?

    I'm all for protecting what's mine but if you can't get everyone to do it...?

    Isn't there a much simpler way? Can't register jpg? Have to have a sit down with every new agent? Couldn't we just put the terms on every invoice? I was looking at a list of MLSs today. 2 of them had a list of preferred photographers. In order to become preferred, the photographer has to sign a TOS. Take a guess at what the terms are?

  2. If you're litigating you have probably already lost. Especially in the USA. Even if you win you still have to enforce the judgement. The value of the image would have to be huge to be worth it.

  3. Mike, another stellar installment in this copyright series of articles!

    I couldn't agree more about the importance of registering your copyright, and the importance of responding when it is infringed. Having said that, I'd just like to offer some thoughts. This last article paints a bit of a scary amount of work required in going to battle. Clearly, a battle in Federal Court, the gloves are off and you need to be prepared as it can get ugly I'm sure. I just want to say, that unless you are battling a large corporate style infringer, it is unlikely that it will actually go to trial, provided of course that you in fact did register your copyright!

    Yes if it is a significant case, I completely agree, it will be a drawn out battle process, and it will require you to have all your ducks in a row, just as Mike lays out. Just keep in mind, that in most cases, a letter from a copyright specialized law firm, gets an infringers attention and it starts a negotiation that is usually settled long before having to actually go to court.

    Like Mike says, and I wholeheartedly agree, you are being infringed as I write this. To what extent? Hard to say, maybe a few hundred images, maybe thousands. In my case, now close to 12,000 images, on just 3 major sites, that we've documented to date. Because of the size of these infringements, will these need to be battled in court? I would imagine, and I'm fine with that as I willing to invest the time and energy to do it.

    But, I've settled many many other cases without needing to go to court. So don't be scared of going after those that steal, what is yours! Trust me, it's a right you have worth protecting, whether you look at it from a moral, or financial standpoint.

    If you still feel overwhelmed with the whole copyright registration idea, or simply need some help, I know there are people on this forum that have offered to help, and I'm one of them.

    Best,

    George

  4. George,

    Should we expect an article from you soon telling us about the 12,000 x $750 you won in court? That's a serious question.

    If the agent can be informed in a less formal way and I don't have to shoot raw, that would be great.

  5. @ Frank,

    I share your concerns, so let me answer as best as I can from my own perspective. We will never have every RE photographer get onboard with anything that requires extra work on their part, and that's unfortunate, as this series of articles by Mike Boatman is some of the best I've seen on the subject. A free 101 education on copyright, how to do it, and why it will benefit you. Think about it, he is not selling anything, not offering paid for coaching, or anything that is costing us anything. Still, most will not take advantage of this free education that is being offered to them in what I see as an effort to slow down the race to the bottom.

    Yes, you can register jpeg (I do). Yes, you can simply have your licensing terms on your invoice (I do, and also include a letter stating all the terms as port of my electronic delivery of images to my clients). It really doesn't have to be complicated.

    @ Chris Convey,

    I would disagree with you when it comes to going to court. First of all, very few cases would require you to go to court, (unless that's your preference), as most all infringers but very few would want to settle.

    As a registered copyright holder that did the proper filings etc, and, has a legitimate infringement, I'd say that it be unlikely that you'd loose if you actually was forced to go the distance. Sure, if the judgement is a significant amount, there may be appeals filed etc in an effort to stall, but unless somebody is seeking bankruptcy protection, a Federal Court Judgement, does carry a bit of weight and there will come time when it's over.

  6. George,

    Boatman and I have spoken to each other a bit about this. I have much respect and appreciation for his time and effort. I agree, his 3-4 articles are the best I've seen on any topic posted on PFRE.

    I'm only trying to be as open, honest, inquisitive and thorough as this subject demands. I would love to see the industry stand up. It's a battle out there. Agents have lots of choices and my biggest concern is dealing with the tour companies since I live and work in a great location for this type of work.

    Btw, can anyone tell me how many independent real estate photographers there are in the US?

  7. Unfortunately, I'm going through this right now. I shot a home for a builder and not so surprisingly a pool company got a hold of the photos and published them in 3 different magazines on 4 occasions. This is in addition to social media, Google, Online Catalog, Printed catalog, and a regional mailer from what I can tell. I did not have the photos registered initially but they have been since I noticed the infringement. I still have the RAW files and the metadata did have my contact information as well at the Copyright claim within the EXIF data portion. (A lawyer is now involved so I'll leave the rest of the story there) but...

    How does anyone calculate the value of the photographs? There are statutory damages yes, but there does not seem to be a standard across the industry as to what the value of any particular photograph is. I chose Fotoquote because it had ballpark pricing on various forms of use. Getty's seems to be astronomical in terms of pricing and not sure if anyone actually uses that or not. Would we not be entitled (use that word loosely here) to the value of the particular license of use?

  8. Frank,

    It's obvious that VHT does in fact register their images. Otherwise they would not have been able to file an infringement case in federal court against Zillow. I'm not sure about the other tour companies but my guess would that most probably do.

    I don't think that there is a way to determine how many independent RE photographers there are in the US. That number is constantly changing on a daily basis.

    I agree with George in that Mike has described "worse case scenarios" in his article and that most, probably over 95%, of cases never reach formal litigation. What Mike has provided us is what we need to do in order to be prepared if we end up in court. If we follow his guidance, religiously, then we can feel confident that we have a better chance of getting a settlement before going to court. Or if we do go to court that we can win the case.

  9. I guess I've been really lucky that I haven't had any issues with copyright infringement that lead to litigation. I have been shooting real estate and architectural (mostly the latter lately) for almost 15 years now, and while I've dealt with my fair share of violations, a carefully worded email works wonders. With that said, I have never come across a case where the violator used them in an irreversible manor such as print (like Rich's case), in which case we'd have a problem... There may be such violations out there, but I haven't come across them yet. Otherwise, for online use I just ask that the image(s) be removed from the website/social media, and give them the option for purchasing a license; thus far they always comply, and often purchase licenses. The tough violators, however, are these useless blog-like websites (I'm sure there is a term for them), that basically just keyword certain topics to get search traffic, then use images that they find online that support the blog post's subject; there is never an actual author or person to contact, but the sites' hosts are always very quick to shut them down when I send them a warning. I certainly hope a case never comes to litigation though, because that's a headache I really don't want.

  10. Kerry,

    Yes, I forgot about VHT (although I did say most). Funny thing is, the case doesn't seem to be cut & dry.

    The reason I want to know about how many RE photogs there are is to understand the numbers and % of people who can take up the fight.

    If it simply isn't that many who will stand up and enforce copyright, this is just a small cost of doing business, no?

    As far as the infringers are concerned...who are they? Small companies? Who are the big guys? Redfin, Zillow?

  11. Mike, thank you so much for this article and for your fight. I am going to follow your steps as I so strongly agree with following up with coypright infringers. I have also put on my order sheets, you can see it online on my website if you click on order, that the agent/assistant must sign that they agree to the terms. I constantly go after builders, architects, kitchen designers and it is about 10% of my income getting them to pay a decent fee.
    Thank you so much!!!

  12. What is the procedure for saving images is you composite 2,3, or 4 raw images into a final jpeg? I know Mike mentions to keep the raw images but I usually delete all the raw images that went into my final jpeg once I know the client is happy with the images and doesn't want anything changed? In a worst case scenario, is the jpeg going to hold up in court? If I have to keep all the raw images that went into producing the final image that is going to put a strain on my storage system.

  13. @George, from what I understand, an award from a Copyright case cannot be discharged through bankruptcy. If the defendant does declare bankruptcy, you move to the head of the line. It's like student loans.

    @Shannon, when you register your images, you upload jpgs as your "deposit". Those are the images that are used in any litigation. I'd suggest throwing out your jpgs and saving your raw files instead. Hard drives are cheap and if you ever need to deliver those images again, you can output them in whatever resolution the customer needs. I use Lightroom so my edits are saved. I can also re-edit images to fit the customer. If they want outlets and switches removed for an advertising photo, I'd rather work on the RAW file than a jpg. Hard drives are cheap these days. I have all of the raw files of every property I've photographed in two places. If somebody calls needing a photo of a kitchen, I have loads to choose from and all can be manipulated to fit the brief.

    @Frank, some of the infringers are mainstream builders and trades. They may not have even contributed to the home whose photos they've pinched. It could also be lenders, title companies, DIY stores, you name it. So far, it can be cheaper for some companies to steal images and pay off the couple of claims they get every year rather than spending thousands to commission or license images. Most photographers don't register their Copyright, of those that do, most of those won't catch or pursue the case. The ones left may be easily scared off by a claim of "Fair Use" or other nonsense. Once they get a letter from a Copyright attorney (they'll check) that includes a registration number and a demand for an accounting of the usage, many will settle quickly to keep from racking up a huge legal bill. They know what they are doing and mark the settlement up to the cost of doing business. They may even budget for it annually. Even a non-profit may have loads of money, so don't think that it's not worth going after someone. Let your attorney figure that out. If they tell you it isn't worth it, go with their advice and just foot the bill to send them a cease and desist letter.

    @Chris Conway, I'm with George. You have to be ready to go to court. What you may find is that the infringer folds before the court date. You, or your attorney, have to pay the filing fee and the other side may just be pushing you to see if you just go away. It means you have to settle for more since your attorney has likely spent some time preparing. Copyright Trolls often drop cases if the defendant is willing to appear. Their model is to get a settlement and not go to court since there is no guarantee of a win but a certainty of a big cost. They only file the cases to encourage the settlement or to get a default judgement if the defendant doesn't show up.

    Enforcing the judgement from a Federal court isn't that hard. If it comes down to it, you can get a writ and visit their place of business or home with a truck and start loading up their stuff until you are made whole. I remember a story from somebody that went after a bank and the bank stalled paying the judgement until the marshall/sheriff showed up at a local branch with the plaintiff and were going to start collecting up cash and property until the judgement was met. The bank manager made some frantic phone calls and cut a cashiers check for the amount. Liens may also be a possibility.

  14. Frank, that's the main reason for Mike posting these articles is to try to convince all of us to stand up and start enforcing our IP. As far as who the infringers are there are both small and very large companies. The small companies typically are fairly easy to deal with and we can get them to change their ways. It's the large companies with deep pockets where it's going to take more than just you and I to get them to change their ways. How many more is it going to take? I don't have that answer. But, it surely is not going to take all of us or even a majority of us for that matter.

    Shannon, like Ken stated above and Mike pointed out in the article, you need to keep all of the RAW files that went into the final image that you deliver to ensure that you will be able to prevail if you have a case against someone that ends up in formal litigation. For storage I use WD 4tb portable hard drives. Typically, I can fit a full years worth of RAW, TIFF and JPG onto one drive. Best Buy runs specials on them periodically (usually around the end of the year) for as low as $79. Late last year I was able to pick up a few WD 5tb drives from them for that same price.

  15. Certainly appreciate all the info Mike and thank you for putting it together. Nothing teaches like experience and I'm glad you have shared this with all of us.

    This was a big talk with Rachel "Law Tog" Brenke at the conference. Perhaps there's room for another break out session or full talk devoted to this at the next PFRE?

    In my view, the general RE photographer doesn't use it nearly enough. There's also a bit of a learning curve with actually submitting the photos to the ECO system. There's an excel spreadsheet that is needed to be submitted along with your photos that includes the titles of every image you submit. The first time I submitted the registration it got kicked back because it was sent without it.

  16. Chris Conway..... The value of the images are huge!!!!........ The value of the image is derived by the usage of the images. It doesn't matter that it was originally photographed for real estate which has a small local geographic footprint, extremely short limited time of usage and relatively small financial return to the user. Once the infringer uses the image the assessment needs to be based on their usage and the usage rights they took. These are lost fees to the photographer. The usage rights there taking our global, usage license into perpetuity, the right to sublease to third parties for profit, rights to make derivative works, rights to copy and share without limitation. Getty sets this value at $30,000 an image. Shutterfly starts negotiations for this usage at $15,000. It's a common mistake to value the image at what and why you originally created it for. Defense attorneys make this mistake willingly constantly because they want to ignore the actual value in the usage that was stolen.

    George Guttenberg...... THANK YOU!.... For your support and reinforcing the facts about copyright. As you know the goal is to defeat all of the attacks before they start this will shorten the time to a settlement and increase the value of the settlement. But you should never enter a fight that you're not willing to go all the way with that's why I built my archive system and put the time into creating a copyright registration system. I'm prepared to go all the way on every fight that I engage in. I sometimes liking it to playing poker. The copyright cases I engage in are as close as possible to smoking gun open and shut. Or the equivalent of holding a royal flush. If you're holding a royal flush does it really matter to you how much the other side bluffs or is delusional about their possibilities of winning.

    Casey...... (In My Opinion)
    You should reach out to George and ask him to show you where your images are being infringed. Or you could go back to the previous article and search for Ava Kamm comment. Follow those instructions. 95% or better of your images are currently being infringed dating all the way back your entire 15 years how many images is that for you? This infringement started in 2017. At the absolute minimum of innocent infringer per each image how much money is that for you? These are your damages due to loss usage fees. There is an entire chain that allowed these infringements that starts north of your real estate agent by multiple infringers each separately liable, plus some of these infringers are definitely not innocent. (In My Opinion)

    Shannon...... technically all the retouching and processing to an image after raw makes them a derivative work of the original. But me personally for my HDR and panoramic images I register the compositions as a new image. I output the DMG file and store it in my folder with my raws for my archive system.

    Ken Brown.... THANK YOU!!!... your responses save me a tremendous amount of time writing the exact same thing.

    Rich King.... (In My Opinion)
    It seems to have become a catchphrase in the real estate industry, "I own the copyrights" or "I grant you usage rights." These aren't just willy-nilly words the way MLSs seem to be throwing them out helter-skelter. These words have very strong legal defined definitions and authority and consequences. To falsely claim you own the copyrights carries with it a minimum $2500 fine per each image and each time... DMCA. How and why the real estate industry as a whole has adopted such a libelous position of completely disrespecting not only the photographer but federal law is beyond me. In my opinion the industry of photography cannot allow a wholesale complete disregard of federal law and our rights to become acceptable standard operating procedure. If we allow this then we might as well say goodbye to the industry of professional photography. Whether you guys realize it or not in my opinion you're in a fight for survival. I agree with you Rich it should be and is a big talk thank you for giving me the opportunity to voice my opinion here.

  17. I had a conversation with a person in top level management for a large tour company yesterday. I worked there many moons ago. Here are his comments...

    We do over 10 million photographs a year. How are you going to know that that photograph they used is one that you took on so many houses? They look the same or are designed the same or are staged the same.

    Times that by the other companies that do photographs in the area. You would be hard-pressed. It would be like finding a needle in a haystack.

    Or maybe 10,000,000 but is very very high. Let's be conservative and say every tour is a 30 photos. And all the photographers in all the areas taken photographs. You are going to get a very high number then add the fact that there are houses being done in XXX which are huge houses and in XXX which are huge four and five bedroom houses are more than 30 photos. The numbers start scaling upwards very fast

    It's not 10 million. Maybe closer to 2 million but still times that by the number of companies that are in the area. XXX area then times that by all the photography that is taken around The world then all the different companies and individuals taking real estate photography. Trying to prove that person stole your photo is going to be very tough. Especially if they took just a generic looking photo to use as their advertisement

  18. Frank ......."Zillow has got to be the biggest infringer, no?" .... NO.... Zillow is not the biggest infringer in my opinion.

    As for your conversation with management of a tour company. I'm not sure what the policy is here about profanity but I'm gonna scream ...bullshit.... On his analysis. Send them my direction I'll be happy to demonstrate how they can determine the infringements especially since the infringements are virtually hundred percent.

    The goal is to have the real estate industry reform there currently infringing ways to a noninfringing state which would be in compliance with federal law.

  19. I have taken Mike's advice and although it is tough to learn how to register with the copyright office, I have gotten used to it and it's getting easier every time I do it. I am very grateful to Mike for all his wisdom and next I need to figure out how to store my images in a D.A.M. system like he does. We are photographers and we have to learn new things all the time. Registering your images is a new challenge, but you can do it!

  20. Mike, you state that "This is substantially different than international law which only allows you to be paid actual damages." This is incorrect. Under Australian copyright law, infringers may be liable for additional damages as well as actual damages and there is no specified maximum to the amount that may be claimed for those additional damages, which is usually far greater than the amount of actual damages. I believe that there are many countries that have similar copyright provisions to that of Australia and that it's only the US (I might be wrong) that requires registration before claims for additional damages and compensation for legal fees are allowed.

  21. Here is a little fact finding exercise for you:

    I'm not sure how you all file your assignments, but many of you probably use the actual address of a property. If not, look at your old shoot calendar and pick any assignment (or a few) from, say 2-4 years ago.

    Now, just for fun, put that address into Realtor.com, and take a look at the photographs they'll pull. Find any of yours from that old expired listing?

    George

  22. Dave Williamson..... Thank you for the correction....I was basing my comment on legal information given to me about some of my claims in the European Union and Germany. The goal is always to get the best information out. Thank you for the correction it's always welcome.

  23. "@ Eric,

    They are selling a content feed to 3rd party users"

    They may also be granting those 3rd parties with unlimited licenses to YOUR images. Some MLS's will allow subsequent agents that pick up a listing that another agent had to reuse the images without compensation.

    We aren't going be be privy to the specifics of any contracts an MLS has with their clients over images unless a lawsuit gets heard in court and the details are made public. Most Copyright suits don't go to court. It's straightforward law and most of defendants attorney's know they'll lose many of these cases and recommend a settlement to their clients with a NDA. The bad publicity is one thing, but a MLS may not want the details talked about to prevent further lawsuits.

    While they may not do it now, an MLS could open an account at a stock agency and populate it with your's and my images. It's not much money per image, but it can be millions of images. Certainly more than enough income to have a small staff culling images to post and looking after the account. You may not find that a big deal if you don't relicense your images, but your clients could. You will drive an attorney nuts if it turns out that "famous stock agency" has a clear argument that their customer has a clear title to the image(s). That will hurt a lot if the image of yours is being used to advertise a multi-national appliance company's products in a widely distributed magazine. That could be tens of thousands that won't be deposited in your bank account and no way to do much about it. Have you seen what a full page ad costs in Dwell or Architectural Digest? More than my house cost me! It's in the same bracket as a new Porsche Taycan.

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