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Does Recent Legal Ruling Affect Your View on Using Instagram?

I have really enjoyed the recent four-part series of posts by Mike Boatman on the ins-and-outs of copyright, including how to navigate the process of making a claim against an infringer. It really opened my eyes to a number of elements on the topic that I’d not previously considered. It actually gave me a lot more hope that, with a little bit of diligence, patience, and commitment to the process that Mike laid out, we can really hit back hard against those who use our photos inappropriately.

A couple of days ago, I saw a very recent article that really made my eyes roll! The article, which can be found here, reported what could be a significant ruling against the legal norm that a photographer always retains copyright. The article details a lawsuit filed in US District Court by a rather successful  photographer, Stephanie Sinclair, against a news service called Mashup. Apparently, Mashup contacted Ms. Sinclair for permission to use a photo she’d posted on her Instagram (IG) account. She declined and despite this, Mashup used the photo anyway (Sound familiar?).

In the ruling, the judge, Kimba Wood, states Ms. Sinclair’s decision to post the photo on IG “granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph”. The judge noted that when Ms. Sinclair opened an account on IG, she agreed to its terms of service, which specified that IG had "a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content." In light of this, apparently, the judge concluded that Mashable did not require a license from Ms. Sinclair to use her photo on its website. The article concludes by noting Ms. Sinclair’s lawyer stating that the district court opinion went contrary to “the binding law of the United States”.

I have only been on IG for less than a year and I'm certainly not well-versed enough on it to make any sort of definitive statements here. In speaking to many photographers in our community though, I’ve come to appreciate that IG can be a very powerful marketing tool when used well. So, I simply wanted to ask the question: Does this court-ruling give you cause for concern regarding how you proceed with IG as part of your marketing plan?  I look forward to your comments!

BTW, for those of you who didn’t catch Mike Boatman’s terrific articles, they’re well worth your time. You can find them by clicking on the links below:

56 comments on “Does Recent Legal Ruling Affect Your View on Using Instagram?”

  1. You can also find a presentation by IP attorney Leonard French on his YouTube channel on this case. He gets a bit side-tracked on the issue of an embedded link vs. Mashable hosting and serving up the image themselves. The license that IG gave them may or may not require the use of embedded links.

    The abrogation of the Bundle of Rights under Copyright by "social media" sites has kept me away from them. Some terms allow certain sites to track and record all of the web sites you visit via cookies and other means. Anybody that notices how the ads change with your browsing even when you aren't logged into your social media account should be very concerned. The spying is creepy and the taking of user's IP with user permission goes to show how little people value their privacy.

    When people ask why I don't have an IG or FB account and I tell them I value my IP and privacy, they are shocked that I can even live in modern society without them. I'm shocked that the brainwashing has worked so well on them. Are They putting something in the bottled water?

    I worked with a movie props and location business and the owner played with his FB site more than his web site because he received more contacts on FB. The problem he wasn't noticing was those contacts weren't even "C" players. They were people with no budget that wanted to make a film/video/whatever and have him "share" his extensive collection of props and use his filming location. Just up the road was another guy with a wide open desert location that advertised in industry resource catalogs that A and B productions used to find props and locations. That person was getting people calling from popular TV programs and major movie studios. Yes, fewer inquiries, but much higher quality and budgets. This guy also has a FB account and he doesn't care that it's completely blown any privacy he thought he had, but it's not what brings him business.

    Mashable apparently contacted this photographer and offered them $50 to license the image which was refused. I would hazard to guess that IG charged an order of magnitude less ($5ish). Do you want to compete with those prices? IG got the image for dimes in storage, bandwidth and website design/mechanics. Why would ad agencies looking for images go to the photographer and pay what the work is worth when they can just shop on a social media site and pay pennies on the dollar?

    MLS's and other consumer facing real estate listing sites are rights grabbing too. They strip the metadata though there is no need to save that tiny amount of bandwidth and storage space. Most that I am aware of prohibit watermarking or any sort of branding. There are watermark removal applications for areas that allow branding, but I suspect if they gear up to monetize the images, branding will be prohibited. I agree that the vast majority of images are not very special. I just photographed yet another beige collection of rectangles today. But, when you have images for the majority of homes in an area, the collection starts having more and more value. If the local MLS has unlimited rights, they can "share" the photos with their "partners" such as the state association and the national association. They can even cherry pick nice photos and upload them to Corbis and Getty. Stock photos wouldn't be much of a money spinner for an independent RE photographer, but when you have rights to millions of images and a small office of minimum wage workers, the catalog would run deep and payments would be worth the effort. Thought you would make a few bucks licensing images to the local cabinet contractor or the company that install the glass shower enclosure? If they could search a stock catalog by address, with a little effort, they could find nice photos of their work to put on their web site for tens of dollars instead your being able to get them as a client.

    Never go by intentions. There is no way to know what's being discussed in closed meeting rooms in high rise offices by people that earn their salaries and bonuses through the work of others. We don't know if They are scheming to start monetizing our images. What we do know that is if we surrender our rights, they can and there is nothing we can do about it. Hello Mr bear trap, stomp.

  2. A photographer does retain copyright, unless we relinquish it! Yes, you want to be visible, yet you need to look at their terms of use, as a lot of them amount to all-out rights grabs.

    Personally I am reluctant to post on many of these social media sites. If you feel you need to post, I would include a watermark, including a copyright symbol and my name, on anything you post on any of them, just as a precaution. If they remove that watermark, it changes things when it comes to a possible infringement case.

    My 2 cents

  3. "If they remove that watermark, it changes things when it comes to a possible infringement case."

    I don't think so. The judge went with the ToS of Instagram that gave them unlimited rights to the images, specifically the right to sub-license the image. I don't have that ToS in front of me, but I do recall seeing many that included the right to alter and make derivative works. Removing a watermark would fall under that. A local MLS near me goes as far as taking the right to change or delete metadata. Given all that, whatever you post on those sites is toast. The only thing that keeps it from being a transfer is the "non-exclusive" part. Going to exclusive would make it a Taylor Swift photographer contract.

    I like Ed Greenberg's analogy. He sells you his car. It's yours, you can register it in your name as the owner, but Ed gets to keep it at his house and drive it. With images, you may wind up with an indemnity clause that means if Ed gets in an accident, you have to pay the damages.

  4. Bottom line...you want to use their service to promote your business....pay the price.
    If you are so caught up in the copyright mania, then don't post.

    Seriously, what the hell are you thinking, posting your material on a social site and not aware that you lose control of it?

    Nothing is free in this world... play their games and abide by their rules..

  5. What makes our work less valuable than the work of musicians? After Napster lost, music has enjoyed great protection and there’s been a proliferation of outlets selling licensed music. YouTube is aggressive in taking down videos using unlicensed music, yet Google, that owns YouTube, uses photographs they have no right to.

    How does a photographer promote his business? If a creator posts his music for review, he doesn’t give up his copyright.

  6. If this is true that IG can indeed sublicense images and allow anyone to use them then I will stop using it. I have never gotten a job because of IG and don't need it. I stopped using Houzz for the same reason...

  7. Tony Thank you for the very kind words about my articles.

    If there is a little checkbox requiring you to accept terms then by all means take the time to read them! May sound stupid but I read the terms before I engage. As for IG I have an account there full disclosure, but I'm extremely selective about what I post. In this case less is more. I post just enough so that anybody using IG as a qualifier or an creditor to whether or not I am a legitimate photography business gets the appropriate answer that yes I am.

    When you know you're giving up rights to be part of something, less is absolutely the best approach. It needs to be evaluated from a business point of view, is what I'm giving up worth the value of what I'm getting in return?

    You should absolutely have a formal copyright watermark visible in the image on every image that you post on social media. Just for you guys that may not know according to the copyright office a formal watermark consist of either the word copyright or © Your NAME Date (Date being the year of creation).

    When I delivered jobs to my commercial clients for example interior designers, or builders I deliver three folders with the same images but in slightly different formats. One folders for print, one folders for web application and the third folder which I go over extensively with my clients is for social media.

    The social media folder that I deliver to my clients has a formal copyright watermark visible on the image protecting my photography as well as a notice about my client. For example with an interior designer it would be designed by (clients name) photo: © Mike Boatman Date.

    I have had no push back from my clients after I explained to them that once it goes on social media and is shared they lose accreditation for the work that they did. If the purpose for being on social media is promotion and advertising and you've lost that once the images shared without accreditation. And my clients are paying me in the license fee for the ability to put the images on social media. But since I provide them with the file it sized in such a manner that social media or web application is the only usable formats. If the image stays on social media with the watermarks attached my clients needs are met. But if the images show up on 1/3 parties website then by my contract with my client I am obligated to take action to safeguard my client's investment in their license and my copyrights.

    My clients don't want third parties making profit from images they commissioned me to create and paid for a license to use.

    Gary is also correct about music and the protections that they have. The need for quality content on social media platforms has expanded exponentially over the last couple of years. The need is greater than the ability for social media to pay for so they just took it. Photographers in the words of IP attorney Rachel Brenke are allowing this to happen. Photographer you have the ability to stop this. It's your decision. I am more than willing to assist free of charge anyone that needs coaching on how to begin. Quite frankly if you don't stop it you're going to lose your copyrights. It's going to become an implied license if you shoot real estate without the regards for ongoing usage.

    Zillow is already using its database as a stock image house bartering or selling usage rights outside of real estate. The more common the ongoing usage becomes the more difficult it's going to be to stop it. And at some point it's going to be assumed that the photographer gave an implied license for the ongoing use because they raised no objection to the practice.

    An implied license is something I end up fighting against on every copyright case where I enforce my copyrights. Even when the (real estate client) has a license from me the defense attorney still argues that the infringement was done through an implied license outside of the actual license I gave them.... REALY I know this sounds ludicrous that a attorney would argue that an implied license takes precedence over an actual license that's in place. But defending this point recently seems to be hundred percent of the time. It's my understanding as a layperson that you can't have an implied license when in actual license is in place. Why defense attorneys continue to argue this point I don't know. But they do.

    Bottom line, read the terms of usage. Evaluate if you want to participate and if so how much and what the true value is to you and whether or not it's worth it from a business point of view.

    Lastly, concerning the ruling that just came down the judge got it right. It is sad for me to make the statement, it's the photographer's fault for wanting to have her cake and eat it too. I think the most telling part of the judges ruling was, "I can't release the photographer from a contract with IG that she agreed to."

  8. The take away here is to know what you are giving up when you post a photo to social media. It's clear you give them a transferable license, that means they can sell it or give it away.

    That doesn't mean don't post to social media, just make sure that what you post is something you are willing to give away.

  9. The loss of control of your images on social media has always been a trade-off. I stopped using flckr because of the scrapping websites that collect images to create content. IG and Facebook make it very easy to steel your images so I watermark them.

    I think the issue with this ruling is not the IG or FB TOS, but the impact on the headline on photographers' rights. People will feel that it is open season for stealing images from IG or FB, and as photographers we cannot do anything about it.

    My understanding was this was an embed from Instragram, and not a copy and paste scenario which is what most infringers do. .

  10. As this pertains to real estate photography, I am a bit torn. Typically, as RE photogs, we do not post our images to social media sites. If we do, it is my our own choice. But, our agent clients certainly do post to FB, IG, and all the rest. If our TOU agreements restrict our clients use of the images on third party sites, our services have very little value to those who pay us.

  11. I think the real balance of the issue is how valuable the image is to you vs how big the fight you want to bring to secure it. Since 99.999% of real estate images are hastily taken and freely shared, there's really not a lot of value in them going forward except to generate more business for you as a photographer. I have gained several clients through my posting of images to social media, and their money and referrals are what really matter to me. If someone wants to "steal" my image of a kitchen...whatever. I may make them credit me as the photographer, but I have better things to do than deal with attorneys and courts.

  12. I admit I don't read the ToS sometimes at all, but then, I haven't posted on IG in months and I don't frequently get the kind of homes someone would drool over. Our local MLS does all the things others have commented on above. If there was a resource to fight this rights-grabbing, I'd be all for it, but short of getting on the board, how is this going to be fought against? It isn't happening at Facebook/IG. Even the local boards are difficult to influence. But, I concede it's possible. A better solution is to do as a couple others said, and post there sparingly, if it all, and watermark what we do post. I'm not all about the possibility some corporate entity can simply take a photo of mine with not so much as a thank you, so it's easier for me to just not use social media for those things. I rarely even post photos for critique on Facebook in the groups because of this, and I wonder sometimes where I can get honest, good critique without having to post my photos on a platform where they have ToS that allows them to essentially own our photos. The only thing they can't do legally is restrict our right to make money off our photos, except for the fact that if they use our photos to promote their business, they are making money--a privilege that most entities would be required to pay for. The only reason they get away with doing this is their business model and userbase in the millions to billions, so if someone wants to post their photos there they get to set the terms, draconian or not. But if someone chooses not to post their photos, it doesn't hurt them at all.

    We have portfolios for this kind of stuff, and there are other ways to market. By and large, we make very little in comparison to other fields of photography, so we don't have to allow a large corporation to make money off our photos that they don't need. We need it, but they're getting business off it. It's a perfect system for them, but for the little guy, it's legal theft.

  13. @Ryan

    "The only thing they can’t do legally is restrict our right to make money off our photos, except for the fact that if they use our photos to promote their business, they are making money–a privilege that most entities would be required to pay for. "

    The take away from this court case is that those ToS's will be enforced and it means that IG and other social media sites are well within their rights to sub-license users' photos

    The way combat the same thing happening through the MLS is to have an attorney you can turn over infringements to for resolution. I'd like to see a case where an MLS tries to throw an agent under the bus when they know that many of the more professional photos don't include transferable rights from the photographer. There are services where one can upload their photos and agree to pay a big chunk of any settlement to the search site and the attorney that works on the case. A more hands on approach could net more money by not paying as big of a percentage, but many arguments against are based on the not having the time to bother. One settled case and be worth a few weeks of shooting new properties and may discourage further infringements.

    The honest thing MLS's could do is partner with photographers on re-licensing rather than trying to rip them off.

  14. @Ken

    I was mainly saying that we are still legally allowed to continue to make money off our own photos should the opportunity arise, no MLS or social media platform can keep us from doing that. In the meantime, they are passively grabbing rights, and they are ostensibly making money off our photos. Normally we’d require payment for this, but they get it for free because of their TOS, and are making more money off our photos than most of us are making off them. That’s completely legal, but it’s still leaving a sour taste, right? The only consolation is that they haven’t gone for more.

    It took some slick lawyering to find avenues around copyright law that allow entities to do this and get judges to rule in their favor.

  15. @Ryan, I wouldn't call it "getting around" Copyright law. It's cornering somebody (agent) into doing something through extreme leverage. In other cases such as social media, it's because there are so many people that don't care and aren't going to read the ToS so they just stick in verbiage that covers their backside in all of the cases they can think up.

    I have to reiterate my point again that Social Media sites and MLS's are in a much better position to market photos for a good ROI. They already have a staff of coders that can set up a custom online licensing system so their labor cost to license each image is measured in watts and not man-hours. Yes, we still have the "opportunity" to sell our images, but we aren't going to get very far if we have to compete against our own work for a small fraction of what our time is worth to conclude a transaction and process the payment. If somebody sees one of my images and is considering licensing it, they can drop it on Google image search and see if it also appears on a Social Media site. If the meta-data hasn't been stripped and they can find me but don't like the price/terms I am offering, they can turn to the Social Media site and "partner" with them instead.

    The margin on PFRE is small compared to other genres when producing and licensing photos for agents. We make far more return on 3rd party licenses for those of us that pursue that revenue stream. It starts making less sense to stay in REP if there is no additional income. There isn't any credit either. I see ads and editoral pieces all of the time that credit Zillow or Realtor or IG for an image. Not only is the photographer not getting paid, they aren't being acknowledged either.

  16. Ken, All good points.

    I have three current copyright cases that are in pre-formal litigation stage. The initial demand letter for two of them was 1.2 million and 350,000 for the second. One of them as an extremely short statue of limitations which will require me to file formal litigation during the month of June. The one with the short statue of limitations is squarely in the center of this discussion concerning real estate.

    It's my plan if settlement is not reached prior to may filing formal litigation in June to post the entire complaint and all following public documents in the case here.

    This entire community will get to watch the litigation and real-time unfold.

    One correction to Ken's comments as you can see from my initial demands which are based on the minimums of statutory damages and assuming typical settlements end up in the halfway mark a settlement will pay for substantially more than a few weeks of real estate photography.

    This is not an attempt by me to create income!!!!!! This is lost revenue for usage rights that has already been stolen from me.

    Just because the image was originally photographed for real estate doesn't mean that the usage rights should be calculated based on real estate. Same as when I release an image that was originally created for real estate I don't consider that in the new secondary license fees.

    Price needs to be calculated on usage!!!!!!!!! if a company wants the right to sublease my work to third parties for profit this is usage fees I'm giving up if I agree to it, therefore in my negotiations I want to be compensated for the potential loss of usage fees that I'm transferring the rights to 1/3 party to go after..... Getty starts negotiations at 30,000 per image for these types of rights. Shutterfly starts at 15,000 for these types of rights. For me to send a demand letter based on statutory minimums is a gift compared to what the images are actually worth given the usage rights that have been taken.

    As I've said in comments before real estate photographers are the most copyright infringed of all sectors of photography. You also happen to make the least amount of money per image. Virtually 100% of all your images are currently being infringed if you copyright manage your usage rights. You have the legal authority and leverage currently to force MLSs to partner with you. The longer this goes on the weaker your leverage becomes because of implied license........

    Can somebody tell me why this is like herding cats to get photographers to defend themselves?

  17. @Mike Boatman

    "Can somebody tell me why this is like herding cats to get photographers to defend themselves?"

    My guess is 1) afraid of being blackballed if an agent gets thrown under the bus 2) time 3) $$.

    I think you have addressed #2 and #3 very well. I don't remember seeing anyone address #1.

  18. Boatman,

    Today is the first time I've seen your website. Wow, wow and wow. No wonder your photos are being infringed.

  19. As a photographer, I personally don’t mind if my photos stay in the MLS. If I explicitly were to forbid it, then I doubt any agents would ever use me. Photos from old listings are one the main tools realtors use to create valuations of homes. If photos disappeared en masse off the MLS from old listings (or stopped being stored), the real estate industry would suffer a huge blow that would impact its viability, in my opinion.

    Looking forward, what do you want the clients (realtors) to do to allow the MLS to be able to hold onto those photos? Do you want them to pay an additional fee or want the MLS to pay— which would surely get passed down to agents anyway?

  20. Regarding Instagram, this is concerning. Clients proudly showcase their work on Instagram, so if we don’t post our photos, they will, and if companies can remove watermarks or crop them out, they don’t provide a huge deterrent.

    Technology exists to take Instagram photos and link them so they are showcased on websites, which is another way our work is getting devalued.
    This happened to me, and the company in question stated they had permission from my client, who didn’t fully understand how they would be used. It put me in an uncomfortable position of having to decide between asserting my copyright and my client’s desire for exposure. The company who used the image refused to pay but ultimately took them down. I also sought advice from the ASMP lawyer, who recommended against sending a demand letter or making a legal issue out of it.

  21. Thank you Frank..... If you like my general web site you should look at my dedicated architectural site http://www.architecturalmikeboatman.com but I have plenty of houses that I photographed in the 75,000 to the 125,000 price range that are just as plain Jane as the majority of images photographed in real estate. These plain Jane images are being infringed also. And again it's not the visual value of the image that sets the price but the usage that sets the price. One of my plain Jane images was used for backdrop for Rocket Mortgage ad, anyone in this community could've taken that picture.

    Frank to your question Frank VHT did not get blacklisted. In one of my copyright cases the infringer started calling and emailing all of my clients that he knew I had and slandering me for suing him. My attorney putting into that after two of my largest clients contacted me. One of my clients is still one of my favorite clients today 10 years later. The other client emailed the infringer back in response to them saying I would sue everybody that use my images and told him quote," I'm sure Mr. boatman has a good reason for suing you. He is always been extremely honorable and upheld his agreements with us thank you for your concern."

    Will there be an attempt to blackball you? Probably Will it be successful? Depends on your motivation for bringing the litigation and the justness for bringing the litigation. You may just find that the agents are your biggest allies. It's been my experience that the majority of people are honest and law-abiding and want to do the fair and just thing. Your agents are going to feel betrayed by the MLS because I'm sure they're unaware that the MLS is transferring unfettered complete access to our usage rights downstream to aggregators. And since the MLSs made up of agents for the most part they are aware that many photographers rights manage their images. You can't just turn a blind eye to a crime. And make no mistake about it what the MLSs are doing is legally a crime prosecuted in civil court.

    Our goal here is to change the transfer of rights to third-party aggregators without compensation. Currently third-party aggregators are freewheeling and using our images and eroding the marketplace out from underneath us. Devaluing our work by turning it into a commodity. Ken is right how can you compete against your own images if they're being given away.

    Justin, it's not the storage of images as a resource for agents that disturbs me. It's the unfettered use of the images by third-party aggregators for profit. The third-party aggregators are pointing their finger directly at the MLSs for having given them the usage rights that their exercising to profit by. The same as the case that's being illustrated in this blog post with one grave exception. Where the photographer agreed to the terms of usage for IG we photographers did not agree to the wholesale transfer of usage rights to third parties with the right to sublease for profit. If she had not agreed to those terms it would've been a smoking gun slam dunk different judgment.

    Collectively if the third-party aggregators want access to the images than they need to pay for them. The MLSs do not have the legal authority to transfer usage rights that they don't have. It's my understanding the national Association of realtors doesn't demand the transfer of usage rights to the MLSs from photographers. So why do the MLSs feel they have the right to transfer usage rights that were never available for them in the first place? MLSs are in a better position to negotiate with the aggregators that's why I'm saying collectively now we have leverage to force the MLSs to partner with us. Currently the MLSs are pardoning with the aggregators but unfortunately for the MLS they are violating federal law in doing so,..... in my opinion as a non-attorney just a photographer.

  22. I love, love, love this conversation. Every time it comes up on this site, it brings a ton of cache.

    Independent real estate photographers do not have a united front. The MLSs would much rather deal with the aggregators, imo, because these people probably know each other and/or travel in similar circles or go to the same seminars etc. It is very easy for them to make deals with far fewer connected people than trying to herd cats/independent photographers.

    "The Game and The Theory of Winning"

    Here is the situation as I see it....

    Choice #1
    Photographers - keep doing whatever it is your currently doing as far as rights protection
    Problem - the infringing gets worse and, as Boatman says, it sets precedence.

    Choice #2
    Photographers - Sue everyone you can and get as much as you can every time you are infringed
    Problem - Getting blackballed?

    Choice #3
    Photographers - close your real estate photography company down and look for employment
    Problem - that sucks

    Choice #4
    Photographers - band together by creating our own system and storing our own images
    Problem - If I understand correctly, the MLSs do not allow links (now why do you think that is?) and if the
    independent real estate photographers decided to get uppity per the NAR, the industry simply
    hires their own photographers. OR institute a Zillow solution where more and more of what Zillow
    accepts is strictly through their apps.

    The long term solution, imo, is to create a competing system. What would that look like and how would we accomplish it?

  23. Love you comment Frank.......

    Choices modified,

    Choice #2 by suing the MLSs and or simultaneously suing the aggregators for what they've already stolen you can retire and go sit on a beach in photograph sunsets or flowers are pretty models or yachts or whatever else you would much rather be photographing then a $75,000 house that's been lived in by pigs.
    Problem, It's going to take you two years to go through the process and the process sucks.

    Choice #2 option, Sue the MLSs and the aggregators and as part of a settlement negotiate for some form of fee for ongoing usage automatically to be paid to photographers when their images are displayed after the sale of the house on aggregators sites. An ongoing royalty fee.

    Choice #3 MLSs and larger real estate brokerage houses are going to institute their own photographers which will be employees hopefully with benefits like health insurance and a 401(k). Close your photography business and become an employee. They're already treating you like one currently now but without benefits. Given the rates that some people are making in real estate photography I'm not sure it's equal to minimum pay.

    Choice #4 Photographers band together and enforce your copyrights and leverage the current infringements to force choice #2 option or if the MLSs are not interested in obeying the law, collect lost usage fees, for what's already been taken and go photograph sunrises at your leisure because you can now afford it.

    All my joking aside with my modified choices. Here's the situation as I see it.

    MLS's are already in debt..... They have already broken the law. This is not a future situation were talking about. It's a past that's already occurred....

    The question is.... do you bend over grab your ankles and say thank you, may I also have a kiss?
    Or do you say enough is enough you've stolen from me, you've broken the law and this behavior must stop and I need to be compensated for what you've already taken.

  24. It would seem the future for industry will go one of two ways.

    1) the status quo
    2) become employees

    He who owns the toll road has all the power if they choose to exercise it.

    Serious question...
    What would it take to create a competing MLS? Or a system that REP can, at least, demand better compensation? I think it's possible.

  25. @Mike Boatman

    "a settlement will pay for substantially more than a few weeks of real estate photography."

    I agree. I should have developed the point better to illustrate that, at most, it's a couple of weeks in aggregate of the photographer's time. The attorney and their staff are going to be doing the bulk of the work. If a settlement is worth $10,000 in your pocket, you have to be a very busy photographer to feel it wouldn't be worth the time. Even more so since much of the photographer's "work" is providing the attorney with documentation and places where the infringement can be found. Stuff that can be done after hours and not right in the middle of a working day for a majority of it. The $10k is post fees, taxes, etc. I'm trying to be conservative. I've heard some photographers that have said a single case has bought them (or their spouse) a brand new car.

    @Frank Losing a client that gets dragged into an infringement case is a risk and it's a possibility an MLS will hold them to the indemnity clause in their contracts. I've written on numerous times that the MLS is becoming less relevant. It's similar to how bands had to have a major label behind them to get their music recorded and into stores. Technology now lets them record songs themselves, burn CD's to sell and promote themselves without the legacy machine. They can even get their music listed on major online music services without a record label backing. They still need some business and publishing skills to navigate all of the bear traps, but there's plenty of tutorials and groups dedicated to that. The MLS in most places isn't something that a consumer can access. It's B2B. They still provide a huge number of resources for brokers and agents, but the advertising aspect can be done in other ways without winding up entangled in legal issue the MLS gets them in. Agents will talk amongst themselves and after a few are tossed over the cliff by the MLS, others may decide to lobby the management to make some changes. I don't see the MLS as a for-profit business which is what it seems they are trying to do with grabbing rights and licensing out content. Their prime focus should be supporting their members in the selling of homes and property.

    I'd be happy to license images to a consumer facing RE website at a really good price if they wanted to make a bulk deal. The higher quality the image, the higher the price. The vacant beige box I shot today would go cheap. Becoming an employee of a middle man marketing company or MLS wouldn't be worth it. They already compensate less than minimum wage now and it's a dead end job. They don't want employees either. They want independent contractors they don't have to provide any insurance for or process payroll. They really don't want to have to comply with a state like California's every increasing mandates for PTO. If you have a birth of a child (or an adoption) and a death in the family in the same year, you could get 3/4 of the year off if you take the full allowance as a full time employee.

    IP attorneys know that copyright is infringed left and right because so few photographers register and only a few of them will pursue a case. On IG it might be an even smaller percentage as many people that post there are even less business savvy. That really sucks as some are tremendously talented artists and deserve to make a good living for their work.

    Creating a competing MLS is not impossible. Ideally, it's a non-profit which is a juggling act between bringing in revenue to pay for it's actives while not brining in so much that tax issues get triggered. It would take a substantial minimum number of members paying reasonable dues to get it to the point where it is self sustaining. Another factor is the established MLS's have decades of property records and a start-up would have to amass a large percentage of that same data to be as useful to brokers and agents as a resource. Much of that is public records, but it's not organized in any way that makes it very easy to get at.

  26. Ken,

    I think you are in close agreeance. Re creating a competing MLS, maybe not but something similar?

    Question: if Realtors are required to put all listings on the MLS, how will they ever become irrelevant?

  27. You guys are hilarious. Maybe we can colonize mars and win the triple crown while we're at it, eh?

    Real estate associations move national policy and that's the only reason, amongst the influx of recent cut-rate disruptors, that the traditional commission based real estate sales model endures. It may not forever, but as of right now they carry a really, REALLY big stick.

    So now a band of real estate photographers is going rouge to strong-arm an industry that employs half the attorneys in the universe away from accepted practices for what...because you're afraid of being infringed on Instagram? Please tell me you're joking.

  28. @Frank

    "Question: if Realtors are required to put all listings on the MLS, how will they ever become irrelevant?"

    I don't believe is legislation that requires listings to be put on the MLS. A broker could not be a member of the local MLS AFAIK, but they'd lose access to all of the information. Many agents I do work for are too lazy to post images to each service and just rely on syndication to do the work for them.
    -----
    A downside is that one of the two MLS's in my area is only syndicating images at 640x480 now. One broker I work for has unchecked the "syndicate" box for that MLS. I supply galleries for Z,T and R along with large print files and the MLS. I'll even add a custom set on request. It's very little time using presets in LR and with the recent upgrade to the computer, it's fast too.

  29. Brain Roberts.... welcome to the discussion. As you stated real estate associations move national policy... Emphasis on the word policy. Policies are not federal law. The problem for the real estate industry as it is currently operating is it's based on an illegal structure.

    If I end up having to file in June the exact details of the illegal structure will become public. As of right now I'm bound by confidentiality and can't share what I know. But once I file if I file depending on whether or not we reach a settlement that confidential information will become public.

    It's not the photographers that will force the change but federal judges and the federal law. Federal judges in particular, concerning federal law are very jealous about protecting the law. They take exception when large corporations right policy and then try to call it Law. Especially when that policy so clearly violates federal law. It's the equivalent of thumbing your nose at a federal judge in saying your law is meaningless. What do you think is going to happen when this is in a federal court room. Especially if there's approximately 100 photographers screaming foul play? Shining a spotlight on the illegal practice of transferring copyrights without actually having access to them for profit.

    The count of photographers without yet having filed is up to about 35. My goal is to create an avalanche so far I have photographers from all four corners and across the middle of the US.

    Problem you see is one sector of business is abusing another sector of business in violation of federal law. It's the federal court systems that will mandate change to the business structure of real estate.

  30. Brian Roberts,

    If Boatman can get done what he is trying to get done, Katie bar the door. Photographs are on par of importance with just about any other information. But, sure, we should simply allow others to profit where we have not given permission? I think if REP banded together, we could come up with a system to effect change.

    Ken,

    The MLSs must be underfunded? I just completed a spreadsheet of every MLS and Realtor Association in the entire country and it's territories. Some of these sites are nothing but static pages. Some of them don't even post any contact information. Btw, I sent you a message through your website.

  31. @Frank, The NAR requires their members to abide the the local chapter rules on photos, but I don't think that brokers/agents have to be a member of the NAR or any organization. Or am I wrong?

    The MLS's don't have to be underfunded but, there there are limits on non-profits over money on hand and revenues exceeding disbursements over a fiscal year. I had a friend that was in the Rotary club, or one of those and they had a hard time doing bigger projects because they couldn't exceed a certain amount of money on hand. That made is more difficult for them to put in a new playground or pay a contractor to help remediate a park in dis-repair.

    It doesn't take banding together if photographers are more diligent in going after infringements of their work. Some issues may be best as a class-action but the ones I usually hear about benefit the attorneys far more than the class of plaintiffs. Only if the case brings about some fundamental changes in the way the MLS does business for the better will it be worth it. They could come back with a rule that forbids agents from using 3rd parties to make the photos and leave the rights grabbing in place. They could also require that any non-agent photographer be registered with the MLS and that agreement would have a rights grab in it as well. That wouldn't do us any good.

    I have credit monitoring coming out of my ears at this point from all of the data breaches. I doubt that it's doing me any good and I'd rather bankrupt Equifax, Target, Home Depot, etc in making them give me cash.

  32. If you want to be a Realtor, you have to join the NAR. As I understand it, if you are a member of the NAR, you must put all of your listings on the local MLS. So much so, that if you do not do it in a specified number of days from the listing agreement being signed it is a $5,000 fine.

  33. Reality check: if you furnish photos to an agent knowing those photos will be uploaded to the MLS, good luck trying to argue that you haven't granted an implied waiver of copyright to the extent of any uses you know or reasonably should have known the MLS will make of them. Any language to the contrary in your agreement with the agent is meaningless.

  34. Joe

    I assume you read Mike Boatman's many articles relating to this topic? I assume we will find out at some point. If you haven't already done so, please read his comments above.

  35. @Joe
    "Reality check: if you furnish photos to an agent knowing those photos will be uploaded to the MLS, good luck trying to argue that you haven’t granted an implied waiver of copyright to the extent of any uses you know or reasonably should have known the MLS will make of them. Any language to the contrary in your agreement with the agent is meaningless."

    I disagree. My license is with the agent, not the MLS. An agent can post the images in any number of places without notifying me. It's up to them to understand the contract they have with those venues to ascertain if they are in compliance with the license I gave them.

    Not every MLS posts their policies in a publicly accessible place. It's also not my duty to seek it out as they are not my customer and I am not bound by their terms.

    If you are an associate member of the local MLS, chances are that you ARE bound by their terms.

    There is no "implied" when it comes to Copyright.

  36. @Ken Brown

    No "implied" when it comes to copyright? If you had taken two seconds to do a Google search you wouldn't have made that statement with such confidence.

  37. @Kerry I knew where to find the copyright law over 40 years ago when I was practicing law at one of Chicago's largest law firms. I still know where to find the copyright law, and know what issues the statute doesn't directly address.

    Do you know how to use Google and how to read cases to research the topic?

  38. Hi Joe, I'm assuming you misspoke when you use the term waiver. Being an X attorney or current nonpracticing attorney then you know that in copyright law it's considered real property the same as real estate it's one of the few areas of law where you need actual written agreements to transfer rights. Copyrights cannot be transferred verbally. Also being attorney you should know that an implied license does not exist when an actual license does.

    But to the point you made that photographers gave an implied license (not implied waiver) to the MLS by proxy through the agent this makes assumptions that are not fact. The first assumption is the extent of the ongoing usage by downstream aggregators. For your implied license to hold water the photographer would need to know of this extended usage. My research is shown that most photographers are completely ignorant of the extent of the continued usage. Neal just a month or so ago ended up only me a case of beer after he did his own research once I pointed him in the correct direction. Every photographer I've asked about their knowledge about extended usage has been ignorant of it. The extended usage started with zillow and came to light in 2015 but it has mushroomed by other aggregators to a far greater extent than zillow ever did. In this explosion of ongoing usage occurred in 2017.

    This is why I am encouraging photographers to take action now because you can't do a wink and a nod and it not be an implied license. You can't knowingly go along with something and then scream about it. This is why I keep jumping up and down on the bandwagon that photographers have leverage currently but the longer it goes on without action the weaker the leverage becomes because the knowledge of the infringement and the extent of the infringements is becoming more known.

    Ken is absolutely correct, our clients are agents. And when this thing reared its ugly head in 2015 I did extensive research and conversations with my local MLS as have many other photographers. My MLS was not forthcoming with their contracts and said it was privileged. It took a subpoena to get access to it which I didn't get until September 2017.

    But having looked you up and done a Google search I see that you publish an apartment guide helping people find apartments and other services. So you were an attorney and you now run an apartment guide when in your careers were you a photographer. I mean actually making a living doing photography as your primary and sole source of income?....I don't see photographer listed anywhere in your list of careers on LinkedIn. There's a huge difference in being a photography enthusiast and actually running a business doing photography.

    The image and leasing image usage is the sole source of the photographers income whether it be realized through selling prints her selling usage rights for advertising. What happens to a business if you take their sole source of income "usage" and give it away for free to everyone?

    According to PDN a trade publication for "photographers." Architectural photography represents 15% of income for our business sector and is present in all income levels of photographers.

    What's going on in real estate is a cancer and left unchecked potentially becomes the roadmap for the demise of photography. Maybe the demise of photography is inevitable but there's a tremendous amount of really talented shooters in this group that have dedicated years of honing their craft education and capital just to be swept away by greedy corporations that want the fruit of our labor for their own profit without any consideration for the creators......

    But from what I see on Google and hear you say.... you're a publisher and an attorney, why should I expect you to understand the professional photographer.

  39. @Mike

    You're correct in that I was imprecise in my use of language, in part because the state of real estate photography involves murky areas of the law. You can find references to a lot of relevant case law in a recent opinion from the 1st Circuit Court of Appeals …

    http://media.ca1.uscourts.gov/pdf.opinions/19-1452P-01A.pdf

    I haven't practiced law in many years. Since leaving the practice I've been a real estate developer and then a publisher of print and online publications. I owned a business for 30 years that created online systems for the production of print ads for brokers in many newspapers and other publiciations throughout the country. I've hired many professional photographers over the years, understood their concerns, and zealously respected their rights when they retained rights rather than on work-for-hire assignments. Understanding professional photographers' concerns is part of the job description for being a publisher.

    The value proposition for advertisers in my current business is primarily based on "good enough" photography and videos that I shoot myself and that reach a targeted audience via my website and YouTube channel. I've performed those services for many top-tier Realtors in the past but several years ago concentrated exclusively on rental properties. I'm obviously biased, but think I understand the issues from a wide variety of perspectives.

    Why should anyone expect photographers to understand the nature or future of the business they're in when they can write phrases like "... swept away by greedy corporations that want the fruit of our labor …"

  40. @Joe

    "No “implied” when it comes to copyright? If you had taken two seconds to do a Google search you wouldn’t have made that statement with such confidence."

    I don't consult Google, I talk with an attorney. I stand by my statement.

  41. Joe, Thank you for the link above, I will review it sometime today. Thank you also for your thoughtful response. Perhaps I should not have put the personal jab in.

    You are correct in that many young photographers do not understand business, much less the business they are in. Fortunately I am not one of them I've always loved business and go out of my way to study it and use it. I've been in business full-time as a commercial advertising photographer approaching my 42nd year. I've gone through the great recession of the 80s when hundreds of photographers were going out of business daily and corporate middle management was living under bridges and cardboard boxes.

    Generalities lead to gross misunderstandings and faulty logic. The use of rights grabbing boilerplate paragraphs inserted into usage terms without consideration of the business implication or with consideration of the business implication that's arbitrarily accepted by photographers or anyone as in the IG case demonstrates a lack of business discipline.

    The discussion migrated into a comparison between what's going on in real estate photography. These same boilerplate's and write scraps are part of the terms of usage for downstream aggregators such as realtor.com Zillow and others. Recently as in the last few years and aggregator redesigned their website implementing and redisplaying their entire database of images for each property. This is a fact.

    Photographers that are rights managing their images and using good business skills because they recognize that the product of photography is usage rights did not allow ongoing usage for third parties. These third-party aggregators are using the images to sell other products and create ads.

    As a publisher if imagery was sent in to illustrate an ad and the photographer rights managed, do you have the right to take those photographs and sell them to 1/3 party who then uses them to create other ads for profit. Obviously this is a rhetorical question because you and I both know as a publisher you would be guilty of willful copyright infringement.

    This is exactly what's going on in real estate.

    The entire business structure regarding imagery is built on aggregators being able to use imagery after the house is sold. This is a recent change as of 2017. Photographers the creator of these images is being left out of the financial loop. One aggregator in particular reported to Inman publications that the redesign of their website accounted for a 14% increase in revenue.

    So what I see here is knowledgeable business people doing photography rights manage their images. Their images were transferred downstream for the purpose of selling a specific property. Once that property was sold usage rights were according to contract were to end. But on the path to the aggregator the MLS gave the aggregator unlimited usage rights including the right to sublease to third parties for profit because this was a requirement to put the images on the aggregators site. This was done without any communication to the photographer and in many cases no communication to the photographers client the real estate agent. ................. as an attorney what's the solution?............... Wearing your publishers hat you and I both know there's a copyright infringement here.

    Since you see the problem from multiple angles I am legitimately and with respect asking for your opinion.

    For me having been dealing with this problem firsthand through so far three formal litigations and I will be filing my fourth litigation in June if no settlement is reached before then. The big difference is I will fully publicize the litigation in June if I have to file it.

    Final note please overlook any improper words in my comment. I am an extreme dyslexic and use voice recognition software. Unlike my post and other formal writings that I sent through an editor I usually try to scrutinize my comments personally and therefore there's many typos. Voice recognition loves to replace the word "and "with "in". Their several other words that it has issues with this well I beg your patience with my shortcomings.

    0h one other thing a federal magistrate judge in mediation told me that my attorney and I probably knew more about copyright law specifically then he did. So your comment to Ken that he knows more than a federal judge is possibly true as it applies specifically to copyrights. Unfortunately, it's the luck of the draw to whether or not you get a knowledgeable judge on the specific topic being litigated.

  42. Joe Zekas, I do not think the court case you cited above is directly on point. While it does concern an implied license, it does not address the sort of implied license that you suggest would apply in the case of usage of photos on an MLS. I will note that I do not think it is reasonable to suggest that photographers must necessarily be aware of all of the terms of all platforms on which a client might potentially want to use the photos, and the terms can vary among MLSes.

  43. Joe, the jury got it right, but the appeals court reversed a portion of the verdict. The infringements concerning ZillowDigs images was not reversed all of the images used in ZillowDigs were found to be infringements. In the appeals court didn't reverse it based on implied license, but on vicarious choice. I probably got the terms wrong but basically it boils down to zillow didn't make a conscious decision to do anything with the photographs and that they left them in place as the original upload or had put them. That's why those images were deemed not to be an infringement because there wasn't a physical change due to a decision that zillow made. This was not true concerning the ZillowDigs images were zillow staff cherry picked images and then use them in a secondary manner different than what the original upload or had done. This demonstrated vicarious decisions made by zillow and therefore all of the infringements regarding ZillowDigs images was upheld.

    Please keep in mind there were two separate sets of images in the Zillow case. One was for the ongoing usage of images uploaded and the other were for the images that went into ZillowDigs. You can't just pick one category and applied for the entire verdict.

    But you didn't answer my question. You are a publisher, an advertiser since images in to run an ad in your publication. You then take those images and use them independently for yourself for additional new ads unrelated to the client that sent them into you. Have you committed a copyright infringement. Yes you did........ Do you not agree with this statement?

    That's what Zillow did with ZillowDigs and the courts found it to be an infringement. And that's what's currently going on with many other aggregators. No matter how you slice it you can't take someone's images and use them to build ads for profit without the permission of the owner of the images. Especially if that owner rights manages and leases the images.

    Nothing in the zillow litigation talked about implied license. The appeals court was ruling based on vicarious decisions. Because zillow did not do anything independently different other than leave the images up after the real estate agent uploaded them.

    And in the case you cited above the jury there awarded Photo illustration company $8.5 million for breach of contract. So it wasn't that they didn't see a crime being done it was just in a different category due to a technical wording of the license. An 8.5 million is still 8.5 million all day long.

    It all boils down to one question did someone take the images and use them independently from the original intent of selling a house?...... Yes
    If this occurred who gave them the rights to do this?..... The MLS
    Did the MLS have legal authority to transfer usage rights? ..... If you rights manager images then no they do not have ownership of the rights to transfer them to 1/3 party for their independent usage.

    Come on Joe you're a publisher you know the difference in advertising in your magazine and open source editorial images /what you can and can't do with those advertisements. You can't take somebody else's ad material and use it for yourself..... When someone sends you ad material, that material doesn't become your stock images......That's what's happening here.

    If you can see this, I believe at least my discussions on the topic with you are over.

  44. @ Frank

    "If you want to be a Realtor, you have to join the NAR."

    If you want to call yourself a "Realtor", you have to be a member of the NAR. They've done a bunch of ads on that probably to prevent the term from being considered generic. You don't have to be a member of anything to call yourself a "real estate agent"; you only need to have a valid license. Most people are using "Realtor" as a generic term so it gets confusing. I audited an intro to business law course and that particular one was used as an example. Others are Xerox, Kool-Aid and Jello off of the top of my head. You see lots of "corn flakes" on the shelf because Kellogg's could only trademark "Kellogg's Corn Flakes". Just "corn flakes" was deemed to be merely descriptive. Apple couldn't trademark "apple" so it was "Apple Computer" and then "Apple, Inc". Microsoft couldn't trademark "windows" so the trademark is for "Microsoft Windows". The USPTO won't allow trademarks of single common words. This is why the drug companies' names for their drugs are what they are. The lectures I sat in on were fascinating. I'd love to go back and take some more biz classes, especially legal oriented classes that are for business owners and not somebody pursuing a law degree. Getting mired in studying cases isn't that useful at the level needed for a law degree.

  45. I've been a Realtor in northern California for ~7 years. I'll clear some of this up.

    To become a licensed real estate agent one must complete three prerequisite courses and pass an exam. In California, one must also "hang their license" under an established broker. After 2 years (I think it is?) an agent can qualify to take the broker exam, which then means they can strike out on their own, albeit with much more liability and assumed sophistication (an important point if it ever comes to litigation).

    Notice how I haven't mentioned becoming a Realtor or member of the local MLS. That's because you don't need to do either, or be either in order to do the other. Three completely separate things. In reality, nearly all agents I've met and worked with have been both Realtors and MLS members, but to conduct real estate business you don't need either. To become a Realtor one must attend an ethics class and pay a fee. That's it. To be an MLS member one needs to pay for the membership and be in good standing with the department. That's it.

    Now on to the language on MLS platforms. I'll copy and paste my MLS (BAREIS) here:

    4.4 Intellectual Property Rights. Except as provided by Rule 14.4, Members shall not use photographs or other images or virtual media, Marketing Remarks, appraisal reports, or other intellectual property (collectively, “Media”) from another listing without the prior written permission of the previous Listing Broker or other party that has the legal right to reproduce and display the Media.
    Members shall not remove or alter any metadata, copyright or electronic management information (as defined in § 17 USC 1201(c)) or other markings indicating another Person’s intellectual property rights in any such Media.
    By submitting Media to the MLS, the Listing Broker represents and warrants that he or she either owns the right to reproduce, display, and include such Media in the BAREIS MLS® copyrighted compilation per Section 2.1(d) of the Bylaws, or has procured such rights from the appropriate party, and that such Listing Broker has the authority to grant and hereby does grant to BAREIS the irrevocable right and license (i) to reproduce, display, and include such Media in the BAREIS MLS® copyrighted compilation and (ii) to sublicense and grant the right to reproduce and display the Media to BAREIS’ Participants, Subscribers and Members and to other Persons as required or permitted by the Bylaws or these Rules. To the extent that the Listing Broker does not possess the rights to permit the foregoing assignment, the Listing Broker hereby grants to BAREIS a non-exclusive, perpetual, world-wide, transferable, royalty-free license to reproduce, prepare derivative works of, distribute, display, perform and license (including sublicenses through multiple tiers) the Listing Broker, Participant or Subscriber contribution.

  46. @Brian Roberts. The text started out ok and then went bad at the end. There is no issue with the MLS claiming their copyright on the compilation. It's just that really long last sentence where they grab unlimited rights to all content submitted by the Broker/Participant/subscriber.

    Somewhere in the rules or membership contract will be an indemnity clause where the member agrees to indemnify the MLS against lawsuits that might be brought against them arising from things like copyright infringement. Those clauses are often written to state that the member doesn't have to be notified when a claim is brought or will be allowed to participate in any settlement negotiation. The upshot is that the MLS can settle the case and bill the member for the costs. Commonly known as "throwing them under the bus". If the photographer and their attorney (and there will have to be an attorney) show the image(s) were registered and ask for $5,000, the MLS may feel that it's going to be cheaper to just settle than to litigate. The member will then receive a bill. If they don't pay it, they'll be sued, blackballed and called naughty words.

    Now, if you go to the NAR 2019/20 guidelines handbook, they have a very sensible section that makes it policy to NOT require a rights agreement further than storage, display and modification to fit the display format. I am not acknowledging the MLS in my license text nor any likely online/print venue where photos are posted so maybe there would still be a violation of my licensing terms, but I wouldn't test that hypothesis in court and I don't care. My goal isn't to put my clients in a no-win situation. I want them to do very well and keep hiring me to do more photography. The problem is that it may become necessary due to the behavior of the rest of their industry that wants the whole pie AND BOTH cans of whipped cream too.

  47. Thank you Brian and Ken

    What we as photographers currently do NOT have is a set at the table.
    The NAR, MLSs and aggregator portals are currently setting the policies concerning our property. There has been zero attempt to include or even consider photographers.

    Ultimately my goal is to give photographers a voice and a place at the table.

    Any suggestions on how to do this, other than what I'm currently doing through litigation?

    Thanks,
    Mike

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