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My MLS Is Now Claiming a License for the Photos I Upload

Published: 27/03/2019

Pamela in Florida says:

As I am uploading some photos to the MLS for an associate this morning (I'm also an agent and photographer), I see this pop up for the first time - "...I hereby grant to MLO an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, modify, resize, adapt, prepare derivative works of, distribute, and display the images for any lawful purpose, and to modify, add to, or strip out the metadata contained within the Images..."

Yes, we've talked about this subject extensively in the past. Here is an example.

My non-legal assessment of the words you've included in your question (the above is just part of the MLS terms) is the MLS just stating their terms of service to clarify that when you upload to the MLS, you are granting them a license to use the photos for almost anything they want; just like the terms of service for Facebook, Twitter, and other social media sites.

Two things to remember are:

  1. The photographer--the one who clicked the shutter button retains the copyright (ownership of the photos) unless the photographer signs a transfer of copyright document.
  2. The photographer typically grants a use license to their clients (listing agents) that use the photos.

So the words from your MLS's terms of service don't appear to me to be out of line. They appear onerous but look up the Facebook terms of service--they aren't much different. If you think your MLS's TOS is out of line, I would suggest you consult Joel Rothman. Joel is an expert in these matters and has been involved in litigation against MLSs.

Larry Lohrman

22 comments on “My MLS Is Now Claiming a License for the Photos I Upload”

  1. @Pamela, you may be in a tougher spot than a photographer that isn't a member of the local real estate association. Part of the requirements of being a member is that you agree to the rules of the association. If you were uploading photos you made, that's even worse. If you were uploading photos that I made and licensed to you to market a property and agreed to those terms, you would be sticking your neck way out. If I were to go after the association for Copyright infringement if they were to re-license those images or use them for an unlicensed application they might throw it all back on you for falsely giving them a license you weren't able to legally grant.

    It's either a rights grab or an attorney that has little experience in IP law trying to cover as much liability as possible. The association might have been spooked into this poor choice after seeing the Zillow vs. VHT lawsuit and not having spent the time to understand what it's about. What this does is put the Assoc. members in greater risk of getting into legal trouble while the Assoc. covers its own backside if they choose to do things they shouldn't be doing such as stripping out metadata.

  2. Unbeknownst to most of its members, MLS/IDX has been selling uploaded content to outside entities (such as Zillow, other listing services, or just about anybody that is willing to pay for it). They have been doing this by having the RE agent that uploads a listing, agree to immediately relinquish any and all right to the material they upload (pictures, text, drawings, floorplans, everything). Most realtors don't even know, or understand that this is taking place when they upload a new listing. Typically the rules about this has in the past been just been part of text buried in bylaws, membership agreements etc of the realestete associations that members first signed-up when starting in the business. Because of recent challenges to these all-out rights grabs, some MLS systems (like Pamela's) apparently are now feeling compelled to be a little less underhanded about the fact that they are in fact rights grabbing from their own membership, and willfully putting their own member at risk.

    They are still forcing a listing agent to relinquish all rights, if they want their listing on MLS. But more importantly, they are forcing their members to state that the member has the right to relinquish all rights to all materials, some of that they may not actually own, like professional photographs!

    The various RE Associations around the country know damn well that the vast majority of professional images on the MLS is licensed to their agents, yet they continue to force their members to essentially perjure themselves as to the actual ownership, by demanding full ownership/rights-transfer, as the only way for an agent to get a listing on to MLS. Think about that. As a real estate agent you'd be hard pressed to sell any listing without being on MLS (which you pay for through your association membership etc), yet you are not allowed to upload anything without giving all your rights away even if they aren't yours to give away.

    The fact that they even strip all image metadata, is no different than a thief removing the vin number on a stolen car. The fact that the various associations apply their own copyright watermark on each image, but refuse the actual photographers, should tell you all that you need to know about the honesty behind all this. As far as I'm concerned, it's got the hallmarks of all-out racketeering and fraud.

    None of this is going to get any better unless you as photographers step up. It's already at this point, because of what has not been done. Your rights as photographers are being walked all over, and the value of what you produce continue to diminish as everybody is now using it for free.

  3. Only the photographer can accept those terms. If an agent uploads the photographs, and even if the agent agrees to the terms, the grant of licence is null and void unless the agent has been authorized to act on behalf of the photographer.

  4. I think George's comments are somewhat misleading. While it is true that some MLS have the sort of terms he describes, that is not true for all, or necessarily even most, MLS's. That said, even if it is just a few MLS's that have these egregious terms, I think that warrants serious attention and concern for real estate photographers and realtors, to try to avoid it spreading to other MLSes.

  5. Desmond - Not sure what you're talking about.

    I just happened to see the new terms and agreement when working as an agent, uploading data to the MLS.

    What is not included in the original post is the part specifically addressed to photographers, stating THEY agree to this. But photographers do not input data into MLS
    (unless like me, they just wear many hats), and would NEVER see this so-called agreement.

    I agree with you Chris, and can tell you that no such authority has been given by the photographer. The realtors I work with will not sign any agreements, they will just use someone else. I have been told this specifically. When I inquired with a couple of other photographers in my area, they agree but state the same thing I just said - no one is asking for any agreements to be signed because there are too many photographers who won't require anything to be signed.

    George I do agree with you. This is infuriating. But there's no way around it. It's like any "fine print" for almost anything these days. You have to agree or you don't get to participate. There is no opting out and then continuing.

    Personally, I do not have the resources to fight this. If I make a stink, it would mean no more business for me. My own broker won't back me on this. Do I want to push it with him or do I want to pay the mortgage?

  6. Pamela, which MLS are you on? We're on mfrmls which as you can see in the link covers a big part of Florida. http://tiny.cc/mfrmls I think I've seen the same language

    My feeling is that pictures are worthless if an agent can't use them on their MLS. I think many agents don't understand the conflicts in the language used in the MLS picture confirmation and the language used in some of these photography contracts. I think they just assume the photographer will be reasonable and let them use them for the MLS since that's why they need the photographs.

    It's not like most agents have a choice in the MLS they use or can affect the T&Cs of the MLS. I think that if agents were to focus on the conflicting T&Cs they would be forced to find different photographers. What else could they do?

  7. @ David,
    I don't understand why you think my previous comments where misleading? I never stated that ALL MLS systems have those terms, although I suspect most do, or they would not be able to share content the way they do without copyright challenges. I do know for a fact, that some do as I've dealt with it.

    @ Pamela
    I'm with you. Locking a agent out of placing a listing on MLS unless they relinquish all rights to the material they upload (weather they actually own it or not) is a way to push agents into only using photographers that will give up their copyright, is simply shameful. Until it's challenged, it will continue and grow.

  8. Looking over what they state, most are required for displaying photos with on modern websites. You have to be able to modify, resize, adapt, prepare derivative works of and digital image in order to have a site that display fast and correctly on different displays and screen sizes. Web sites have to work on everything from cell phones to huge monitors. For speed and bandwidth, you don't send the same image to each.

    The rest is so they can send out the photos to them agent and agency sites. That is the purpose of the MLS, so it's not surprising they require you to agree to that.

    As for the agent agreeing to these terms instead of the photographer (copyright holder), yes this would be not binding to the photographer. However, our photos would be almost worthless to the agent unless they can use them on the MLS. So we need to adapt.

  9. @george I would love to see this challenged but who do you think needs to challenge it? I can't see an agent going to the trouble and expense. Too easy just to ignore or find a different photographer.

    I went back to see the language mfrmls uses and have appended it below. This is what you certify anytime you upload or modify the pictures (delete, rearrange, etc).

    "IMAGE UPLOAD CERTIFICATION
    I hereby certify the following with respect to the images, photographs, visual recordings or created graphics, renderings, floor plans or other digital content (collectively “Images”) to the multiple listing organization (including its parents, affiliates, subsidiaries, successors, and assigns) (collectively, “MLO”) to which I am uploading the Images:

    For Participants (and those acting under the authority of Participants)"

    For those Images created by me, I hereby grant to MLO, or, if applicable, certify and confirm a prior grant that I have made to MLO in the End User License Agreement (EULA), an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, modify, resize, adapt, prepare derivative works of, distribute, and display the Images for any lawful purpose, and to modify, add to, or strip out the metadata contained within the Images (collectively the “License”). For those Images created by others, I further certify and confirm that I am the copyright holder of the Images or have permission from the copyright holder of the Images to grant to MLO the License.

    For Photographers/Service Providers of Participants

    As a photographer or other service provider engaged by a Participant to create Images, I hereby grant to MLO an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, modify, resize, adapt, prepare derivative works of, distribute, and display the Images for any lawful purpose, and to modify, add to, or strip out the metadata contained within the Images."

    IF YOU CANNOT CERTIFY THE FOREGOING WITH RESPECT TO ANY IMAGES, DO NOT UPLOAD THAT IMAGE. MLO RESERVES THE RIGHT TO REJECT OR REMOVE IMAGES FOR ANY REASON.

  10. Hi George, you suspect most MLS's have these terms and I think that was implied in your comments. From what I can tell, I think there is no basis for this suspicion. Other than the Palm Desert MLS and one in Florida, I have not heard of other MLS's with these terms. I have looked at the rules and regulations of a sampling of MLS's from various parts of the US and have not found terms such as we see in Palm Desert or Florida. Such terms do not apply in the San Francisco Bay Area or the vast majority of California, for that matter. However, is there perhaps an inconsistency between what is stated in the rules and regulations of MLS's and the language realtors have to agree to when they actually upload the listing content to the MLS?

  11. For those interested, the different MLS organizations generally sublicense the photos and content to a firm called Listhub. Listhub then sublicenses the images to any site that wants them. There is a fee upfront of around $1000-$2000 and a $300 a month per MLS feed charge. This is generally where those secondary real estate sites get their information. The one that want to charge for the service or charge agents for leads. The agency corporate are the one that generally license with Zillow. So when the photos are placed on the corporate website, they get sent out to Zillow.

    This is based on what I am seeing in my area.

  12. By the way, except for the part about adding or stripping metadata, the terms that Felix quotes are now ubiquitous on the Web and apply pretty much any time you upload photos to social media. In fact, many providers of Web hosting services, such as GoDaddy, have these terms, and even the photos on your own website may be subject to these kinds of terms.

  13. Looking over the MFRMLS rules and regulations, I see no egregious terms relating to usage of listing content, unlike the situation in the Palm Desert area, with which George has had to contend, which effectively give the MLS ownership of the copyright to all listing content.

  14. @Neal, The MLS needs the right to resize and display to make use of images but they don't need to make derivative works (that's different than resizing) resell, etc. Stripping the metadata should be completely off of the table. There could be language that allows them to sublicense for the purposes of syndication to other advertising outlets in the same way that in the license I grant, I give the customer a fairly broad ability to use the images when they are being used to advertise the property being sold. A claim for the entire bundle of rights except exclusivity strips photographers of a lot of potential to earn money with the images. Do you want to compete with somebody like Zillow for stock photography if they wind up getting a very broad sub-license?

    @David, I'm pretty leery of GoDaddy. They have (and may still) offer really cheap hosting including a domain name where they retain ownership of the domain name so you can't ever take your web site someplace else without paying them a serious chunk of money. If they are trying to grab rights to content, that's beyond the pale. The host I use now has it in their terms that they do not make any claims to customer content. I've never used GoDaddy, I've heard of too many problems with them from a business perspective to ever trust them with my brand. Anybody posting on Social Media should be aware that they are handing over their work for free. I have no sympathy.

    Real estate associations are supposed to be more of a co-op than a monolithic corporation looking no more than 3 months ahead and concerned mainly with "shareholder value". Members should be able to raise issues such as rights grabs and insist that the association engages an attorney with the proper credentials to be able to get good advice. The way it's set up, agents are being put in a dangerous legal position for the benefit of the association rather than something that benefits the agent member which should be the purpose of the association in the first place.

    Do brokers have to be a member of the local association? The MLS is less useful today than it was in past years with more customer facing web portals available. I know they track more information such as official lot numbers/descriptions and offer tools that agents need. I see some of that information being made available on T,Z&R and don't see why they couldn't offer agents a subscription service for more MLS-type services. Most of the info is a matter of public record to start with and it's just the value of having it compiled in one place that the MLS's are providing.

  15. Hi Pamela,

    Perhaps I misunderstood the content of your post? However, I work to MY terms, therefore you should work to YOUR terms and NOT those of your customer!!

  16. @Felix - we are in the same MLS. The verbiage you posted is exactly what I saw. Where I feel the real issue is, is the part that is directed to Photographers. Photographers do not typically ever see the inner workings of entering MLS data or uploading photos, so how are they(we) supposed to agree to that? If I wasn't also an agent, and MLS member, I would never have seen that verbiage basically stripping all rights of photographers. It's nuts. The agent is agreeing to terms on behalf of the photographer, without the photographer's knowledge or consent.

    @Ken - I'm not sure how agents would market properties without MLS. There are very few in my area that are not MLS members and from what I see, they do very little business or just dabble in it, not enough to justify the expense of an MLS membership. If a broker is an MLS member, all associates must also be members. Money money money.....

    @Desmond - Nope, still not getting what you are talking about. My terms would be pretty simple - agent has a license to use them, not resell them, and they do not own them. I'd just like that acknowledged by the agent/client, AND the MLS.

    @David - Did you see what Felix posted - this is the final step before submitting a listing in MLS - this is MFRMLS, requiring agreement (by the agent on behalf of the photog who would likely never see this message addressing them specifically) to their ridiculous terms.
    Here it is again:

    "For Photographers/Service Providers of Participants

    As a photographer or other service provider engaged by a Participant to create Images, I hereby grant to MLO an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, modify, resize, adapt, prepare derivative works of, distribute, and display the Images for any lawful purpose, and to modify, add to, or strip out the metadata contained within the Images.”

    IF YOU CANNOT CERTIFY THE FOREGOING WITH RESPECT TO ANY IMAGES, DO NOT UPLOAD THAT IMAGE. MLO RESERVES THE RIGHT TO REJECT OR REMOVE IMAGES FOR ANY REASON.

  17. I just emailed MFRMLS Compliance and asked them why there are terms within Matrix (MFRMLS) addressed specifically to photographers, when photographers will not even see it.
    I'll share the response. Can't wait.

  18. Pamela, as I mentioned above, except for the provision about metadata, these terms are now ubiquitous on Web platforms. You have most likely already been agreeing to these terms when you post your images on social media, blogs and even your own website. I don't like them any more than you do, but this is a much wider issue than just your own MLS.

    In George's case, one of the local MLS's in his area was literally requiring either ownership of the copyright, or an exclusive license that took away all of the photographer's rights and in either case required the photographer to cooperate in any legal actions that the MLS undertook to protect its rights with respect to the photos!

  19. @Pamela, The MLS is a way for agents to market properties to other agents. They typically aren't accessible by the general public. With Trulia, Zillow, realtor.com and other public facing outlets, agents are more than able to market their listings in a way that is available to everybody. With nearly 100% of buyers starting their home searches online, if an agent has their listing on T,Z&R in addition to social media sites, those listings will get seen. I could be wrong, but I don't see a huge handicap if an agent or broker isn't a member of the local real estate association other than some search tools and historical information.

  20. @Ken, I'm not sure exactly why you think the MLS is not accessible by the general public? While the database itself is not directly accessible, the content definitely are. The contents are fed directly to Realtor.com, agent and agency sites. It's rare for an agency or agent to manually enter listing into their sites. They just put the information and photos into the MLS and their site queries the MLS to keep it updated.

  21. @Neal, In my area (Greater Antelope Valley Association of Realtors, Tehachapi Realtors Association, Ridgecrest Association of Realtors), just about everything is behind a password. Agents can curate listings for people, but you can't just browse unless you are a member. I know a few MLS's are accessible which is why I wrote "typically". I know that agent/broker sites hot link to MLS hosted info, but that's another form of curating. They are only pulling listings they own or have partner agreements for.

    The bigger question is how much value are those MLS's bringing to the marketing of a home over what T,Z&R have. Is it worth the membership dues? Is it worth having to conform to the association rules? Is it worth it to agree to pay fines for having your sign in the images of your listings? I have yet to run into an agent that insists on owning the copyright of the images they commission me to make for them for their own benefit. I've only been asked once to sign an agreement (which I declined) that assigned copyright to the franchiser. The agent didn't care, they were just being told they had to have that agreement for "insurance reasons" which was a pallet of manure. The agents I work with make money selling homes and not images. As long as they have a good set of images to post of their listings, they're happy. After the sold sign is up they really don't care about the photos any longer unless they want a couple to put on their web site.

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