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Lobby Your Local MLS To Adopt Media Licensing Like This

Published: 29/05/2012
By: larry

Just as I speculated in my post yesterday, it's possible to operate a MLS that honors Photographers, Realtors as well as protecting the MLS. Thanks to Mark Miranda in Wichita, KS for giving us and example. The enlightened MLS is South Central Kansas MLS in Wichita, KS.

Here is the SCKMLS's media licensing language from their rule 15.2.2:

It shall constitute a violation of SCK MLS Rules and Regulations for a Participant to submit photographs, images, virtual tours, videos or other information to SCK MLS that includes identifying information about the Participant or Subscriber. A Participant who submits a photograph, image, virtual tour or video to SCK MLS warrants that the Participant has been authorized to grant a license to the SCK MLS and by submitting the photograph, image, virtual tour, or video to SCK MLS, conveys to SCK MLS a perpetual irrevocable non-exclusive license to use the photograph, image, virtual tours, or video for any, and all purposes deemed appropriate by SCK MLS in its sole discretion, including, but not limited to, publication and dissemination of the photograph, image, videos or other information in the SCK MLS Compilation, or to display it on any Internet web site to which SCK MLS provides Listing Content. Participant agrees to indemnify, defend, and hold SCK MLS and its other Participants and Subscribers harmless from any and all damages or losses, including attorney’s fees and litigation costs or expenses arising from claims made against SCK MLS and its other Participants and Subscribers by a third party based upon SCK MLS’s and its other Participants and Subscribers dissemination or display of the photograph or image submitted by the Participant.

Mark said the that SCKMLS used to have copyright issues similar to the one we highlighted yesterday until an agent uploaded some copyrighted Getty Images on the SCKMLS and Getty "started making waves". What ever Getty did as a result SCKMLS got serious about honoring copyright and changed their language to the above. It helps to have a company with deep pockets after you sometimes to clarify your thinking.

Mark says he paraphrase's the words above in red in his terms of service on his Invoice and specifies that paying the invoice constitutes accepting the licensing terms. Now SCKMLS agents get fined $1,000 per photo for uploading photos that they do not have the license to use. That's $24,000 per listing!

I suggest using this example to demonstrate to your local MLS that, doesn't honor photographer's copyrights, to show them that it is perfectly reasonable to expect that photographer's copyrights be honored. SCKMLS does it and there are probably others out there that do too.

Thanks Mark! And a special thanks to SCKMLS for behaving responsibly!

11 comments on “Lobby Your Local MLS To Adopt Media Licensing Like This”

  1. While I like the language in RED, that hold harmless sentence is so huge that it protects any and all useage that is typically beyond the original license. Most licenses are for the agent (a/k/a "participant" in MLS reference to it's members) to market the property in the broadest way possible to identify buyers. The problem comes when it goes beyond that, such as 3rd parties, including other agents, using the photo for marketing purposes not related to that property, but to the development and expansion of their business. That is the issue I have going on right now with the buyer's agent using my client's photo to attract future business. While I do license my client to use the photo for their extended marketing and business development as I will benefit from it with future a future shoot, that is not true when other agent's do it however, the language would appear to indemnify them as there are no controls on what they do with the "photograph or image submitted by the Participant."

    My local MLS may be a better model, but may be improved with the language in RED providing even better definition. It is too expansive to cut-n-paste as is spread all over the Rules and Regs which are available in their entirety (and keyword searchable) online. http://mfrmls.myismart.com/pages/home Key components are noted below.

    ***Keyword search - Photograph***
    Article 4.5 Listing Photos and Virtual Tours
    This includes prohibition for use in a subsequent listing of the same property without written permission of the Participant or Subscriber who originally submitted the photographs and autorization for Virtual tours to include their logo and contact information in non-interactive format.

    Article 14.1: Submittal of Listing
    This is the closest to the language above. "have been authorized to grant and also thereby grant authority for MLS to include the property listing content in its copyrighted MLS compilation and also in any statistical report or "comparable."" Note that they are not assuming the copyright from the owners, just the authority to use it in their compiled reports which they copyright.

    ***Keyword search - copyright***
    Repeats the two above, then also adds.
    Article 14 - Ownership of the MFRMLS Compilations and Copyrights
    Section 2. Copyright "All right, title, and interest in each copy of every compilation created and copyrighted by the member Association or MFRMLS and in the copyrights therein, shall at all times remain vested in the member Association or MFRMLS." That explains my last sentence in the section above.

    Article 16 - Reproduction Use of Copyrighted MFRMLS Compilations
    Section 1: Distribution
    Section 2: Display "Participants and Users shall be permitted to display the MFRMLS compilation to prospective purchasers only in conjunction with their ordinary business activities of attempting to locate ready, willing and able buyers for the properties listed in MFRMLS."

    Article 16 - Reproduction Use of Copyrighted MFRMLS Compilations
    Section 3: Reproduction. (defines the limited useage)

    Article 20 - Virtual Office Website Rules and Regulations
    Section 3: (limits on how used in a VOX site)

    ***Keyword search - Harmless***

    Article 4.16: Housing for Older Persons (doesn't really apply to photography, rather when using an exception in Federal law concerning Senior communities and age limitation)

    Article 13.2: MFRMLS Not Responsible for Accuracy of Information
    (That is as close as it comes to the "hold harmless, indemnify" language of SCK MLS copied in the primary article.

  2. I don't have any issues with the "hold harmless" aspect of the policy. The reason this portion was added to the policy was because Getty Images was demanding that SCKMLS pay them for use of images that an irresponsible Realtor used in the MLS without permission. Here's what happened, and it's interesting. An agent with brokerage A posted an image in the MLS that was owned by Getty. Getty discovered the image on brokerages B's web site by virtue of the IDX syndication. Getty began sending letters to Brokerage B and SCKMLS demanding payment for use of the image. Brokerage B had nothing to do with it, as no one with this company posted the image. SCKMLS's position is the they're merely a conduit and have rules in place that prohibit it's users from posting images and media that they do not have the right to use. In other words, if you "Realtor" violate our policies, don't expect us to go down with you. You're on your own. I totally agree with this. If an agent cops some of my photos and uses them as their own, I wouldn't expect SCKMLS to take the heat for it. I respect them for now imposing the fine of $1,000 per image.

    My biggest issue, and LarryG touched on this, was the 3rd parties. I've had more problems in the new home area. A Realtor will hire me to shoot a model home, then give the images to builder, who gives them to the decorator, the painter, etc., and then they show up in magazine ads. Since this new policy came down several weeks ago, agents are requesting that I include a license for the builder, etc., at higher fees. Most don't understand the SCKMLS policy has nothing to do with this, but it's made them aware of copyright infringement and forced them to think before they act. I also no longer provide hi-res images on disc for all shoots. Most Realtors have no use for them in my market. I will provide image discs upon request, but that disc comes with stern licensing language and a very frank discussion about what will happen if the images are used outside the parameter of the license granted.

    Now if I could just get Realtors to stop parking in the driveways when I need to shoot, I'd be in heaven!

  3. You are all making my life easier as I was just beginning to search for exactly what Larry L. is proposing. I'm compiling as much as I can find so that we can come up with new agreements for use at all levels. I'm looking at this from the perspective of MLS Chair, brokerage principal, and independent contractor.

    I think this one of the best so far but may need to be expanded a bit further to cover the other pieces noted such as unauthorized reuse by other agents.

  4. @Malcolm- Hi and welcome back! Haven't heard from you in a while. Ok we you are in charge of getting central PA squared away! Are you with WBVAR MLS? Let's get this fixed!

  5. Hi @larry,

    I've been the MLS Chair for the Pocono Mountains Association of REALTORS for 3 years now. We are one of about 8 small MLS's in northeastern PA that happen to use the same MLS vendor so we share data like a regional MLS.

    We aren't that large but are very proactive, and there are a lot of changes going on right now which are tech related. I'm still a full time corporate IT contractor and do this in my spare time, as well as shoot listings for my wife.

    This copyright initiative came about when I heard about a website that was scraping listings from all over the country and then virtually selling back the leads to the agents asking for a hefty referral fee. They aren't authorized to use the data and refuse to stop even in the face of lawsuits from two large regional MLS's. So we need to start registering our MLS data compilation quarterly and have to get all the agreements in place to establish the chain of ownership, and I want to do it right.

    I'm going to try to keep in touch in the group more frequently going forward.

  6. @Malcolm- Jay sent me the language for the new change in the NWMLS rule 192 that was made on 6/1... it's quite lengthy and obtuse. NWMLS is in the Seattle, WA area most of King County and some of Pierce county I think.

    The new rule effectively now says (my paraphrasing) that, " anyone that has a copyright claim against the NWMLS can file a DMCA take down notice with the NWMLS". To me it's disappointing that it is worded so obtusely and is so hard to understand, but in my opinion it fixes the problem they had with their copyright policy.

    The old copyright rule they had before this change they made on 6/1/2012 said that agents could not upload copyrighted material to the NWMLS... made no sense at all in the context of agents using professional photography.

  7. We hired the best law firm in the country to review our MLS copyright agreements, and to start registering the MLS compilation on a quarterly basis. Now I'm truly stumped on how to proceed.

    First let me give you some background as to why this is a real life issue and not just an exercise.

    There is a company out there actively scraping listing content from probably every MLS in the nation, posting the content, and then when someone clicks or calls, they contact the agent and try to sign them up to get the lead in return for a 30% referral fee. I sent an inquiry on one of our own listings so I know this for a fact.

    Basically, they feel entitled to use whatever they find on the internet, without authorization, and monetize it. They are stealing content owned by brokers and agents, then selling leads back to the owner. There are already two large MLS's suing them but they are defiant.

    So now I have been learning more about copyright then I ever wanted, including reviewing everything I could find on the PFRE site and group (even my own postings from 4 years ago when I was just shooting our own listings). I intended to come up with a new set of agreements that worked by licensing everything.

    Here is the problem, and the reason why so many MLS's have statements about transferring copyright: If you don't own the copyright, you can't enforce it. The law firm recommends requesting copyright transfer whenever possible or the copyright owner will have to do their own enforcement.

    When the MLS registers the compilation without owning any of the content, then all they can do is go after the violator for stealing the structure. That's like someone taking a box of goods from a store but all you can go after is the box, not the goods.

    So now what? That nice friendly language I was wanted is effectively useless. I need something innovative, and so far all I can think of is temporary transfer or joint transfer but I haven't seen this put into use. I'm not sure how this will fly either but I actually do not know of any pro photographers with content in our MLS so I'm looking for ideas everywhere.

    Regarding the hold harmless part, that's a huge but different issue and it really needs to stay in to protect everyone from some idiot using a Getty image in a listing and having Getty go after the MLS and every agent with IDX.

  8. @Malcolm- Thanks for sharing the details of your effort. It appears that you have gotten to the essence of the issue.

    Concerning: "...the reason why so many MLS's have statements about transferring copyright: If you don't own the copyright, you can't enforce it. The law firm recommends requesting copyright transfer whenever possible or the copyright owner will have to do their own enforcement."

    Why couldn't the legal action against a copyright violator be a joint legal action of the copyright holders lead by the MLS? Much like a class action suit. That is, the copyright is owned by whoever took the photographs (I believe that part is standard and automatic under current copyright law) then when the MLS becomes aware of a violation as you describe, they file a class action suit in behalf of the copyright owners.

    It seems like the only reason the MLS would need to own all the copyrights is that it wants to take the whole matter into it's own hands and be the only party in the copyright suit but, in fact it's all the individual copyright holders that have actually been harmed, not just the MLS.

  9. I'll ask about the class action. I posted this on Flickr and Scott said Rolling Stone can go after people that print articles so that is another question.

    Our motive is just to get the unauthorized users to stop. If it's voluntary then maybe enough agents will grant rights somehow and it may be enough.

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