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Real-World Copyright Litigation: A Photographer’s Viewpoint

Published: 17/02/2020

Author: Mike Boatman

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

I repeat… everything in this article is my opinion. I’m not depicting any specific communication with my attorneys, nor am I divulging any privileged information from my attorneys. Everything expressed in this article should be viewed strictly as my own personal opinion.

Enforcing Your Copyrights

Let me be perfectly blunt: If you’re not going to enforce your copyrights, there’s no point in wasting your time and money copyright registering! If you do understand the necessity of enforcing your copyrights and going into it with eyes wide open, then this article is for you.

As I mentioned in the comments section of my previous article, Making a Case for Image Copyright, my goal in writing these articles is to educate photographers so they can make educated decisions that best suit their personal situations.

For some of you, enforcing your copyrights will not be an option because of your personality makeup. Copyright litigation is not like TV crime shows where the bad guy sees justice in 30 days. The truth is, it’s a long and arduous process. Patience is a requirement. In my case, it simply became part of my workflow and business model in 2010, when the nature of infringements changed for me.

My first copyright infringement occurred in approximately 1983. The case was settled within 60 days for $10,000. From 1983 to 2010 I had approximately five other copyright incidents. At that time, most of the work was being delivered on transparency film. The ease of access to imagery through the internet really had not blossomed. Imagery was controlled by professionals: the photographer, the advertising agency, the color management companies that separated the transparencies into printable CMYK plates, and professional offset printing companies. In those early years, the infringers were usually people who were trying not to pay for the services rendered.

In 2010, my world changed. I stopped counting at 52 incidents of copyright infringement involving anywhere from 13 images to 50 images per incident. It started with one infringer and with that encouragement, an entire sector of my business was affected–and it seemed that everyone was infringing. It was considered no big deal to take images and use them without authorization. And although this sounds like what’s currently going on in real estate photography, this infringing industry was not in real estate.

The legal fight took close to two and a half years. The result of my litigation was that everyone in that industry now absolutely respects copyrights of photographers and will not use an image without a clear granting of usage rights by the author or creator of the image.

In 2010 it became apparent that I had to do something different concerning copyrights. It needed to be part of my workflow business model. I needed to remove emotionalism and make it a business practice. This is much easier said than done because when someone steals a photograph that you've created, what they’re stealing is essentially a part of you.

I set up what I consider my "line in the sand". If an infringer crosses this line, and they have knowledge or should have knowledge of the business of copyrights, then I will exercise enforcement of my copyrights. I think each of you will need to establish your own guidelines for when and when not to enforce your rights. For some of you, the question will be: “Should I enforce my rights at all?” I would recommend that before you enforce your copyrights, you have an absolute clear “smoking gun”–a clear, unauthorized usage (e.g. copyright infringement).

Copyright Litigation: Different Approaches

The practice of law is unique to each attorney. Some attorneys believe that you should file formal litigation first and then negotiate. That’s how they conduct their practice. Other attorneys feel you should engage in pre-litigation negotiations, starting with a demand letter.

There are merits to both approaches. When filing litigation first, you force the infringer to hire an attorney. I’ve heard attorneys state that the typical retainer to defend a copyright case is about $40,000. You can petition the court to file an injunction against the infringer’s usage until the case can be heard. This could potentially cripple a time-sensitive marketing campaign, potentially costing the defendant millions of dollars. Currently, judges frown on this practice unless it’s absolutely necessary to stop an infringement from going forward. An important caveat when using the approach of filing for litigation first is that all copyright cases must be filed in federal court. This isn’t a traffic ticket. It’s a big deal, and the rules are different in federal court. For example, in order to dismiss a federal case, both parties must agree. Let’s say you wrongly accused someone, and they had to put up $40,000 to defend themselves. They are going to want to recover their damages from you. They don’t have to agree to dismiss the case, and they now have leverage.

It’s my opinion that in most circumstances, pre-litigation negotiation offers a greater number of benefits. By sending a demand letter, the defendant is still going to have to hire an attorney, but it could be much less expensive, possibly even an hourly fee. However, the threat of the retainer is hanging over their head, which gives them a clear pre-formal litigation framework for negotiating. Once they do engage in negotiating, they are going to try to demonstrate why their use of the image is not an infringement. This is going to give you a preview of their defenses. It is like a rehearsal before formal litigation is filed. If you have weakness in your case, it’s going to be pointed out, and this gives you an opportunity to withdraw or to strengthen and clarify.

If you’ve gone through the pre-litigation negotiations and it’s been determined that litigation is required, you'll have a clearer framework for drafting the actual claim of infringement for the federal court. I have had pre-litigation negotiations last from three months to a year. If the defendant is using delaying tactics just to drag things out while continuing to use the images, this paints a really nasty picture by contrast and compare for the judge to draw conclusions about the merit of the case. I will point out that most of my pre-litigation negotiations end with a settlement. Only a few advance to filing formal litigation.

Federal Court Judges

In my opinion, the merit of the case that is presented to the court is critically important because in general, judges really do not want to hear copyright cases. Federal judges are dealing with human trafficking, drug trafficking, terrorism, murder, gross abuses of consumer fraud that are creating damages to hundreds of people, etc. Compared to those offenses, the claim, “This guy used my image!” seems less important. Even if your case is a “smoking gun” perfect demonstration of copyright infringement, if there is any legal reason why it can be thrown out of court, the judge will most likely throw it out of court. But by the same reasoning, if it’s absolutely clear you’ve done everything in your power to keep it out of court and that the defendant is the one forcing you to bring it before the court system, that pendulum swings to the other side. I’ve heard of judges pulling the defense lawyer aside and making statements like, “Settle this. Don’t bring it into my court–you won’t like the results.”

Of formal litigation copyright cases, only 2% ever see the inside of a court room; 98% are settled prior to going in front of a judge and calling witnesses. On a personal note, less than 20% of my pre-litigation claims required filing formal litigation.

The Process

Once formal litigation has been filed, the defendant must write an answer to the complaint which is filed with the court system. They typically have approximately 30 days to file their answer to your complaint. Soon after that answer, the discovery process starts, which initially lasts for four months in copyright cases. Each side gets to ask a preset number of questions in writing to the other side and ask that they provide documents relevant to the matter. Then, each side has 30 days to answer the questions and provide the documents and often, there are multiple rounds of these requests. While this process is set for four months, in some cases an extension can be granted. These extensions are often for an additional 30 days, so the discovery period can potentially last for almost half-a-year, and possibly longer.

The discovery process can be invasive, as both sides start requesting documents like every email you’ve ever sent concerning copyright ownership and every email you’ve ever sent the defendant. The purpose of asking for all these documents is to gather all the relevant information about the case, and to comb through and find anywhere in those documents that support or contradict the claims or defenses.

Near the end of the discovery period, the parties will take depositions. Just scheduling these can take anywhere from 30-to-60 days depending on the schedules of all the attorneys, defendants, and the plaintiff. Depending on how many depositions there are, this can go on for a couple of months or longer. Once the depositions are done, both sides need to consider whether to ask for another round of discovery and another round of written questions and answers.

Finally, we get to the point of being able to petition the court for "summary judgment", which means the judge can rule on the claims or defenses of the matter, or only on parts of them without the need for a jury to hear anything. This only happens when facts are not disputed, and elements of the claim or defenses are complete.

I probably should interject at this point, that in a copyright case, there are really only three questions that the entire case is there to answer:

  • Who owns the work?
  • Did the person that used the work have permission to do what they did?
  • What damages is the copyright owner entitled to?

In the summary judgment stage, the answer to the first two questions is often answered. Then if it goes to trial, the only thing that’s being decided by the jury is the amount of damages.

When a motion for summary judgment is filed, both sides get to write a response and then the other side gets to write a reply to the response. There is no requirement for a judge to rule on this kind of motion right away, but the case is paused until the judgment comes. I’ve personally been to this point a few times, and had the court take over a year to rule on the summary judgment. At that point, we were about two and a half years from the original filing of the litigation.

By this point, with answering questions and depositions, it is easy to see that you have likely invested more than a hundred hours of your time. Your attorney, on the other hand, by this point has already invested 400, 500, 600 or more hours researching the other side’s defense arguments for legal precedents that will ultimately defeat their argument.

A hundred hours of your time is roughly two and half work weeks spread over a couple years. What they don’t tell you and what you need to be mentally prepared for, is that your first case can turn into an obsession and you’re thinking about it the majority of the time. This makes it feel like you’ve invested a lot more time than you really have. Consciously deciding that it’s just part of your business plan gives you the ability to compartmentalize and not be emotionally consumed. Your attorney will frequently tell you that they are not emotionally invested in the case and that makes them more objective. If you’re going to pursue copyright enforcement, you must adopt the same attitude.

You must set aside the fact that someone stole your property–your creation–and used it for financial gain, while you’re struggling to run your business. I sometimes like to think about it from the point of view of a shoplifter. If it becomes common knowledge that it’s okay to walk into the store and take anything off the shelf and walk out, how long is that store going to stay in business? On the other hand, if it becomes common knowledge that you can’t go into this type of store and help yourself without consequences, then the business survives.

If it is impossible to disassociate themselves, the emotional toll is one of the primary reasons that photographers might decide not to enforce copyrights, or they need to create workarounds to isolate themselves.

The Cost of Litigation

I’ve spoken about the emotional cost; now let’s talk about actual dollars and cents.

I strongly recommend that if an attorney will not take the case on contingency, look for another attorney. If one cannot be found, don’t pursue the case.

With the attorneys I’ve worked with in the past, their fees are contingent on recovery. They are waiving their hourly fee for a percentage of any settlement or reward given to you by the court. This percentage is 100% negotiable between you and the attorney. Typically, it’s 33.3% for any settlements prior to formal filing of litigation. Some attorneys will give you an engagement contract that only goes up to the filing of formal litigation. But there must always be an engagement contract between you and the attorney that spells out your relationship and responsibilities.

If formal litigation has to be filed, typically a new engagement letter (or clause in the old one) may trigger a different fee structure. In some cases, it can go as high as 45-50% of anything recovered. In many cases, in fact I would say with all the attorneys I’ve worked with in firms, the contingency fee does not cover hard expenses. I am obligated to pay all hard expenses.

Note: Typically, hard expenses only kick in once you’ve filed formal litigation. At least 80% of my pre-formal litigation cases settle before I incur expenses.

What are hard expenses? They include:

  • the filing fee with the court system ($400 - $450)
  • the cost of court reporters and the depositions (usually around $2,500 each)
  • the cost of transcripts for depositions done by the opposing side (around $1,400)
  • the cost of expert witnesses (can easily be in the tens of thousands of dollars)
  • the cost of mediation (can be upwards of $7,000 per side)
  • the cost of office supplies like making copies of documents.
  • travel expenses for you and your attorney if it's not in the same state or area as the defendant. Typically, cases for copyright have to be filed in the jurisdiction of the defendant ($1,000 to $2,000 per travel).

The average copyright attorney may ask for a deposit to cover these hard expenses as part of their engagement contract. This can range from $10,000 to $15,000 if formal litigation is to be filed. If the law firm is large enough and the case warrants it, some attorneys will cover the hard costs and then deduct it out of your portion of the settlement or judgment. However, most of the time, attorney fees and costs are awarded to the winning side, meaning if the defendant is found guilty, they have to pay all of your costs, including your attorney fees (provided that your work was registered in a timely manner with the US copyright office).

As you can see, copyright enforcement is not a get rich quick scheme. This brings me to the question: “Is it worth it?” For me, the answer is, “YES.” If our profession becomes an open storefront where anybody can take anything they want, we are not going to have a profession for long.

Although it can be a long process, in some years it has jumped my IRS self-employment tax to over $50,000. To date, (and keep in mind I’m very meticulous about who I will go after) I’ve never lost a copyright case. My primary business model is photography. That’s what I do. That’s who I am. In 2010, I felt compelled to add copyright enforcement to my business model. Each time an image is taken, that’s a usage fee I’m not being paid. Because all my work is done for clients, I’m an assignment photographer and my clients are also being robbed. If I’m going to have my business model based on managing usage rights, I have a basic and moral responsibility to defend those usage rights that my clients have leased.

I anticipate that someday, a client is going to argue that a photographer who didn’t properly protect usage rights that were leased exclusively to them was negligent in their protections by not registering the work with the copyright office. However, your client can’t file copyright litigation unless they own the image. The only one that can file is you, the owner, the photographer.

As an FYI, the management of my copyrights represents less than 10% of my photography work responsibilities.

Again, being brutally blunt, the only thing that makes enforcement of copyright a viable addition to my business model is copyright registration. The reason it’s a valuable addition is because I’m being compensated for lost usage fees of my images that have been stolen. These usage fees are based on how the infringer used it, regardless of how the client used it. For example, I shot for a local advertisement and the infringer stole it and used it for an international advertisement. Which advertisement generates more revenue for the user? Which advertisement should have the higher usage fee because of the increased value? These are questions that must be considered.

In my opinion, collectively enforcing copyrights in the real estate community is definitely worth it financially, if you have a clear case of rights-managed images; if that’s how your business is set up. Infringers know that they cannot use images without authorization of the photographer. Numerous educational pamphlets from the national real estate association prove this. It is common knowledge that photographers lease usage rights and don’t transfer ownership. In a meeting with lawyers representing photographers together with lawyers representing the MLS, the Southern California MLS president clearly stated that they sold images to third parties for profit. Recently, I had a conversation with a photographer in Illinois who said the broker authorized numerous agents to use his images when the listings were transferred to them. When it was brought to his attention that the agreement was with a specific agent and nontransferable, the broker stated, “Real estate rules say I can do this.”

The sheer volume of images is what makes this worth it. The minimum fine for willful infringement is $750 per image. The minimum fine for innocent infringement is $200 per image. Depending on how the images were used, multiple parties may be held liable for separate infringements. I think it’s up to a lawyer to determine if the willful infringer is the MLS or the national organization of realtors. Intentionally turning a blind eye is negligence and is considered willful infringement.

Dave Ward commented that this could be a half-billion-dollar case, and I do not disagree. In fact, I think his estimate may be conservative. Think about when all the recording artists got together and screamed about their songs being shared and they weren’t getting any compensation. Make no mistake about it: Your images are a cash cow for the infringers because of the enhancement to their marketing.

The strategy I would employ is to research and establish several attorneys to start having photographers make a commitment and gathering evidence. Then, the attorneys would file cases simultaneously. There are questions a lawyer would have to answer; for example, as to whether such a class action suit is even feasible for copyright, because the rights are uniquely individual per image. But a judge does have the ability to consolidate numerous cases where the facts are all similar. It would probably be helpful for there to be a manager to help keep the photographer side organized with gathering of evidence and uniformity of claims.

I don't think it's complicated for the real estate industry to fix this problem--simply add a box for the real estate agent to check, when uploading the images that declares those images are rights-managed. This would ensure that once the house sells, the images can’t continue to be displayed, or to be re-displayed.

It’s my opinion that the real estate national association, MLS, and downstream aggregators want access to the images, and they don’t care about the law or the rights of photographers. As one photographer put it to me, “It’s unbelievable this attitude of entitlement to my images.” Unfortunately, for real estate infringers, their sense of entitlement is contrary to law.

64 comments on “Real-World Copyright Litigation: A Photographer’s Viewpoint”

  1. Mike,

    This has been, in my opinion, the most informative piece written and displayed on PFRE and I've been reading this site for 10 years. I hope, Very much, to see a collective $500 million lawsuit.

  2. Mike, you do great job of laying out the big picture there, so thank you for all the time and effort.

    While it can seem overwhelming to take on a copyright infringement, it doesn't have to be. Like Mike says, very few cases ever see an courtroom, a good copyright attorney, will be able to settle almost all, before it needs to be filed in Federal Court. I have yet needed to got to court in any of my past cases. Having said that, the big ones (that now need to be addresses,) will probably be different, and I'm okay with that. I am completely willing to invest whatever time needed, as I feel that if we do not say "enough", photography will simply be looked at as a commodity of little value.

    Don't think so? Just take a look at the actual value of something like Zillow (cap $9 billion!!!), and ask yourself what would Zillow be worth without photos? It the most valuable thing they have. It's the "have" thing that is the problem. The photos are NOT theirs, they're ours. And they are just one company of many, that have built enormous amounts of cash, power and influence using something they know is not theirs to use.

    So, you can take a stand, or you can continue to pretend that this is not affecting you.

    I know, that every single US-based photographer here on PFRE, has multiple images right now, being infringed by a few different big sites, every single one of you. Looking at just one segment of this issue, I have a little over 8,000 right now. Think I'm going to continue to look away?

    Guys and Gal's, register your copyright! If you don't know how, or won't take the time, get somebody to help you.

    George

  3. Awesome article, with your clear explanations. My own business volume is too low to hire lawyers. But I remember a few times clients made illegal copies and I personally felt very "dirty" from that. One was a magazine cover where one of my portraits was used. I would have happily given them permission just for the exposure --- but they didn't ask, and my name did not receive credit as photographer. (It was a nonprofit organization.) The other instances were wedding photos duplicated instead of purchasing the images. Our niece worked for a well known retail clothing store, which had a security team. One time the store called the cops, who arrested the lady thief, but then she returned IN ONE WEEK to do it again, the store gave up on prosecuting again. These cheaters steal every day of their lives, just as you and I go to WORK every day. California's misdemeanor cases are a joke to courts and jails. These people act entitled to all they can steal, plus they collect tax-supported welfare benefits too. Thanks again for your info & experiences!

  4. Likewise, this is an excellent, invaluable series of articles, thanks Mike.
    I've been through this here in the UK (lawyers settled a case before it went to court), and am about to go through the UK Small Claims Court for a couple of other cases.
    I'm now catching up on the backlog of images I hadn't gotten round to registering with the USCO! While USCO copyright registration is of less value here in UK cases, the US is probably one of the most likely places (thinking internet) that images will be infringed.

  5. Doug Eaton.... I disagree with your business model being too low to hire an attorney. But I also think it's probably my fault for not emphasizing that the large majority of copyright cases are settled before formal litigation.

    Prior to formal litigation there is, no expense, for the photographer, if the lawyer takes the case on contingency. Most copyright attorneys that defend photographers usually will only take cases on contingency especially if the images are registered. It's only a small number of cases that are formally filed. This in my experience, occurs when the infringer and or their insurance company hire an attorney that's not an expert in copyright. The law was designed to give the small business person a big stick to fight huge corporations...... In short, the law was designed to be an equalizer!!!!!

    One of the other reasons a defendant will force it into formal litigation is if your attorney has a reputation for never filing cases.

    In the event you don't have the finances and the defendant is forcing you to file there's services available like permissionmachine that for a percentage of what you are awarded will cover the expenses of litigation. 50% of something is better than 100% of nothing, until you build up a war-chest like me.

    With regards to the big one that George is talking about it's my understanding that the attorneys will cover the expenses.

    What you need to do right NOW... is register everything that you photographed in the last three months! On two copyright applications because of the hard year break. You can't copyright register images created in 2019 and 2020 on the same application.

    My next article is going to be about a archive D.A.M. system that carries images from creation through copyright registration that no defense attorney has yet been able to avoid.

    George.... Is absolutely correct NOW NOW NOW is the time to make a stand.

    If you want to jump start on copyright registering you can download from my dropbox three separate PDFs one with screen capture to walk you through the prep process the other without to use as a reference and one from Kerry that shows how he uses Lightroom to create collections to track the images in preparation to registration. Here's the link:

    https://www.dropbox.com/sh/z6pepwty2agqxf9/AAAoSAel2VJ0Fsa2eqgb6ULwa?dl=0

    You or anyone can call me if you need help. George has offered to help also.

    NOW IS THE TIME.

  6. I am indebted to Mike Boatman for posting this article because I will send clients and potential clients to it over and over in the future to read a great summary of what I do for a living and the different steps in the process. Thank you Mike!

    One note regarding what Mike is saying is in order. It is not always the case that the photographer will have to come out of pocket for expenses. We often advance the expenses in our cases for photographers. So, it does not have to cost you anything up front to protect your rights.

    Other than that, Mike is right on.

    Joel

  7. The three things listed that a judge looks at in a Copyright case are easy to get through if you have a good workflow. By registering your images, you have a prima facie ownership. That is, you are the presumed owner of those images. If you created them and registered them, another party would have to show the court a valid signed contract for Copyright transfer to dispute the ownership or somehow show that you stole their images and registered them fraudulently. The second factor is also easy. If the defendant can't show a licensing agreement and receipt/paid invoice from you, they don't have much of a leg to stand on. If you aren't demanding a disproportionate amount of money as a settlement, it shouldn't go to court in the first place. I agree that if the defendant has an attorney that is out of their depth and isn't giving them good advice, or see dollar signs and wants to get you to back down, it could go to court.

    @Mike, I believe that it's $750/$200 per 'infringement' rather than per image. If a publisher steals your photo and prints a few thousand books, magazines or calendars, $750 could be a great deal. If they are careful not to take more than one image from a photographer, the chances of having to pay settlements can be a very good gamble. They may only wind up with one demand if they are unlucky. Online infringements are getting easier to search all of the time, but any infringement that isn't online can be very tough to find. Ed Greenberg tells some great stories on the B&H YouTube presentations about a couple of incidents where the chances of discovery were billions to one and they got found. Tony and Chelsea Northrup's story on their YouTube channel is a good one.

    About brokers. When I'm hired by an agent, it's only that agent that is licensed to use the photos. They can use them to market the home and themselves but not the office or franchise (or any third party). If I license to the broker, they can use the images to market the home, themselves AND their office, but not the franchiser if they are a franchise office. If a national franchise commissions me to make photos or wants to license photos, I'll entertain a license that allows them to sub-license the images to their franchisees for an extra fee. I give brokers more of a license as keeping them happy can mean getting work from the agents under them. They may also want to sign me up as the official photographer for that office or as one of just a few authorized photographers that agents must use for their listings (legally, the broker's listing). So if a broker is my customer, any agent in their office can use the images to market a property. I may even give the agent a license to use the image on their own web page if they had a part in the sale. This means that if one agent leaves the brokerage and the listing is assigned to another agent, I'm not making a nuisance of myself quibbling over the license. If the broker never hires me and the agent is my direct customer, I might try to leverage my position to wheddle a job from the broker. I'll give the broker a license for those images if they hire me for another property. A two for one deal. It may get my foot in the door with that broker for zero hard cost. I have seen that "The MLS allows this" statement before and had to do a face palm that any broker could be that daft.

  8. Great article and good information. In my business we choose not to deal with this issue ourselves. Our 2020 policy is to outsource the work to a company like Digimarc. We send them our 25-40 images - they copyright the images (for a fee), put a digital marker into the image and follow up with daily, weekly or monthly reports on violations. You can let them know if you want to legally pursue and the extent of the pursuit (i.e. nice letter, cease and desist, harsh letter with lawsuit). They will pursue. All of this costs money. We have yet to pursue past a nice letter with a gentle cease and desist message and have had full compliance since using the service. However, I don't believe that real estate photography (vs architectural photography) really requires a lawsuit if the job is worth less than $1000.00.
    I have commercial photography jobs that we have pursued successfully without going to court and more than paid for the years worth of charges for the service.

    Remember, just putting the free digital mark onto your image, doesn't guarantee copyright protection - my own personal opinion and advice is to get a good copyright and license statement from a lawyer to attach to your website, marketing materials, invoices and quotes in easy to understand language.

  9. Mike has done all of us a service by outlining the process and the strong case for registering your images. To reiterate what Joel Rothman said regarding upfront costs, Permission Machine also covers those for the photographer (full disclosure, our firm works with Joel on a regular basis).

    And even though this discussion centers on the importance of registering, Permission Machine also represents photographers who haven't yet registered their images. I'd be happy to answer any questions about our process. And encourage you to listen to Mike and start registering!

    Michael

  10. @ Ken Brown, if you are saying that if a magazine prints 5,000 copies of an issue that contains one of your images that they did not license from you that you would be entitled to $750 X 5,000 or $3.75M? I believe that you are wrong. I suggest you go back and read para 504 of the U.S. Copyright Law again. If it is determined that the infringement was willful then them minimum you are entitled to is $750. I'm sure the judge or jury in the case will take into consideration the number of copies of the magazines printed in determining the award of statutory damages.

    @ Suzanne, you said "However, I don’t believe that real estate photography (vs architectural photography) really requires a lawsuit if the job is worth less than $1000.00." Are you talking about the original agreement between you and your client was less than $1000? Are you saying that low cost, to the client, assignments you should not be concerned about infringement of your images? If so, I feel you are sending the wrong message to our community. To my knowledge there are very few real estate photographers that are able to demand over $1000 per job.

  11. Kerry, what you are referring to applies to statutory damages. The minimums and maximums for statutory damages do not apply to claims for actual damages. If actual damages in the millions of dollars are supported, that is the obvious way to go, not statutory damages.

  12. @Kerry, Yes, $750x5,000. Cox was hit with a Billion dollar judgement just recently for contributory infringement by not cancelling the accounts of people pirating media through their Cox internet connections. Many of the claims stemmed from BitTorrent sharing and much of that would have been of the same movie/music/etc. Ed Greenberg has stressed that it's per infringement and made that statement perfectly clear. It might come down to a judges instructions to a jury or a determination by that judge. Too bad Iran Watson isn't around anymore. He won a settlement over an image used on a calendar without permission. I'm pretty sure the award was based on the number of calendars printed. A willful infringement also carries a maximum statutory award of $150,000. Section 504 isn't particularly clear about the "per infringement" definition I believe is correct. It mainly sets some min/max guidelines. I do know that Federal courts are not interested in hearing cases with outcomes of only a few bucks unless they feel abused by the parties but have to rule according to the law. Getting on the bad side of a judge may not kill a ruling in your favor, but it might limit your recovery.

    @David Eichler, If you can collect actual damages in the millions, that could be the way to go. You have to do a lot more work to show that you commonly earn that sort of money or that the infringement will cause those sorts of real damages. It might be simpler to pursue statutory damages especially if you know the defendant isn't going to be able to pay the full amount of the judgement. The few people that can ignore timely registration are the ones that do get the big checks for their work since actual damages will be far above the statutory limits.

  13. Ken, numerous cases of mine especially during the onslaught of infringements in 2010 were of the same image used for marketing in numerous formats. Example same image marketing and sporting event used for Internet ad to draw participants, sign-up sheet for online registration of the event, brochure for local marketing of the event, posters for decorating the event and signage for directing and information at the event. Has much as I hated it case law and all the attorneys involved constantly explaining to me that I'm only entitled to sue for the one work (image) that was infringed. My argument was this sucks and it's not fair they're using my image for the entire marketing campaign. As part of statutory damages I'm also entitled to a percentage of profit made by the infringer that's equal to the percentage of usage of the infringed work.
    I believe were getting off the point. You're not entitled to anything unless the work is registered because you can't go into federal court without a copyright certificate for the work in your hand.
    You can go into civil court for breach of contract or host of other laws where they've stolen your property and used. The big difference is a judge and jury will determine what the work is worth you lose the ability to argue for statutory damages and attorney fees.

    David Ward will you Please show photographer where to and how to find their images being re-display?

    Suzanne, the value of the work is determined by how it is used. How's your client used the work is a relevant to the value of the work relevant to how the infringer used it. The second anyone puts the image on the Internet it's international, global. We ignore that point or choose not to calculate it for real estate because of what the market will bear. But when infringer takes the image and uses it without authorization we have no obligation to ignore how they used it and calculate its value appropriately.

    The real estate industry in my opinion relevant to the abuse of photographers and the law is grossly broken.
    Copyright law was designed to be an equalizer. It was designed to be, the rock, in the sling of David. Law is on your side, this is a gigantic industry taking advantage of another industry and breaking the law in the process. This is exactly the type of case to federal court wants to hear.

  14. Diving into the minutia of how a case is filed and the claims is interesting, but for me is missing the point.

    I think we should focus on how to collaborate to create a strong movement to have real estate photographers realize that registering images and rights managing them is an essential part of their business practices.

    Then working together to pressure large, serial, infringers to change their business practices.

    Until we change the culture in our industry, it will be in the interest of serial infringers to deal with individual claims as they are now, give them some money, demand an NDA and go on with making money.

    As a group we have a chance to change the culture for the better.

    One man's view.

  15. David Ward is absolutely correct!!!!!!

    I can tell you from personal experience David is absolutely correct.

    David again I call for you to tell the audience exactly where to look and perhaps explain the significance of what they're looking at. Someone said Zillow is valued at $9 billion what's a 14% increase in revenue on $9 billion?

    The real estate industry is rapidly trying to cover their past sins by forcing you individual photographers into signing agreements before you realize the volume of money that you've lost due to stolen usage fees by serial infringers grossly increasing their revenue.

    David is absolutely correct you have to rights manage your work and then register it but that doesn't mean you can't start right now and register the last three months. You may recall in my first article I said it's a business. You buy a car without signing a contract. When you going the grocery store are there not policies that control behavior and you get a receipt.

    As an industry, is photography the only business on earth where it's acceptable to steal our product without any consequences whatsoever? Only you photographers can answer that last question, so far the answer is been yes.

  16. Realtor.com is infringing our images. If you look up an address of a house that you took photos of and has been off market for 6 months or more, you will see that they are putting our images in the property history as well as moving them over to a separate section of the website under the link "Track My Home". They continue to use the images without the photographer's permission for the purposes of making money.

  17. @Mike Boatman, I am still sure that it's per infringement which can mean 'per imprint'. If I'm a big company and put a stolen image on product sold at retail stores across the country (or world), it would be worth it to just steal an image(s) rather than license one or pay to have one made if it can just be argued that it's one infringement. The low penalty and the even lower chance of being called on it makes it financially advantageous. If the company has to pay damages for each product that has the image on it and must recall the product or pay additional damages, that becomes a huge deterrent.

    If I get a chance today, I'll go back through the lectures at fast speed and see if I'm off base.

  18. There are three company names that seem to be recurring in conversations about chronic infringers in the real estate photography sector.

    Zillow Group, Core Logic, and Move, Inc.

    All three of them have multiple brands that rely on real estate information. The most critical element of the information for them are the photographs.

    For example, Move, Inc. operates Realtor.com as well as most of the MLS sites.
    For me, the great irony is that Move, Inc. is owned by News, Corp. Has anyone thought about what would happen to a chronic infringer on the copyrights for the Wall Street Journal?

    Zillow was purchased by Truilia from which grew the Zillow Group. It's website shows 11 branded identities.

    Core Logic is another multi-billion dollar revenue company that relies on real estate data for its products. Again, real estate images are a critical element.

    Reading between the lines, it's reasonable to expect that Move, Inc. is behind current efforts to have MLS organizations get agents to warrant that they own, and grant all rights to the images to the MLS, which then forwards the rights to Move.

  19. Has anyone thought about what is likely to happen after these infringers get stung?

    @Boatman
    How did photographers fare after you helped create a better understanding/respect for copyright in the other industry?

  20. Frank..... I was the official photographer for the sport of racquetball for 15 years, 1995 to 2010. Photographers today photographing in that sport are getting paid with proper accreditation for their works. I got an email yesterday from a major sporting good manufacturer asking permission to use one of my images to represent the announcement of their sponsored player being inducted into the Hall of Fame. Use of photography and racquetball is not assumed any longer. The photographers are respected and recognized for their contribution. I still do a large portion of work for the manufacturers of racquetball equipment.

    Standing up for your rights and demanding accreditation and respect for the contributions you make isn't the end of the world or your client relationships, it's just the end of infringements.

    The serial infringers are stealing from us and selling data to real estate agents from solicitations populated by our work that was commissioned and licensed by real estate agents. You really think the agents are going to get mad at you for putting an end to that practice? Individually maybe collectively they can't afford to. It was from their need of quality imagery that put you guys in business in the first place; that need has not come away nor will it.

  21. What, in my view, the real estate photographer community should do to rationalize rights management and eliminate chronic, willful infringement of their work product.

    1)Consider it an essential business practice to rights manage all work product.
    A)Create and use a license agreement that includes the following business considerations;
    a) Ownership of copyright
    b) Client limited terms of use
    c) Description of licensed material
    d) Duration of license
    e) Means for renewing or extending duration
    f) Means for changing terms of use
    g) Requirement that metadata related to copyright and ownership must remain attached to file
    h) Client may not transfer or assign terms of use to third parties
    i) Client will cooperate with copyright owner supporting infringement determination and actions

    B) Create and use a rights management business practice that includes;
    a) Timely registration with USCO
    b) Create and use a metadata template to affix appropriate rights management data to distribution files prior to delivery.
    c) Create and use a timely rights monitoring process.
    d) Create and use a methodology for confirming infringement and a business criterion for undertaking legally appropriate action.

    2) Collaborate with the real estate photographer community to;
    A) Establish a unified voice encouraging real estate photographers to understand and incorporate right management best practices in their business.
    B)Encourage photographer-oriented trade groups and collectives to coordinate their efforts to rationalize right management in the real estate photography sector.
    C) Encourage photographer-oriented trade groups and collectives to create educational programs to inform the real estate brokerage community about copyright, and rights management.
    D) Encourage photographer-oriented trade groups and collectives to coordinate their efforts to identify chronic infringers.
    E) Encourage photographer-oriented trade groups and collectives to coordinate their efforts to rationalize a rights management best practices that chronic infringers can use to alter their business practices to eliminate infringement.

    With enough “shouting from the hilltop” the real estate photographer community can create a critical mass and get a long way toward solving the chronic infringement problem in a relatively short timeframe. We just have to decide to start.

  22. Some interesting statistics I found;
    Zillow Group Total Revenue 2018 $1,333,554,000. Gross Profit $1,179,964,000.
    Zillow and Trulia website unique visits during January 2020 36 Million and 23 Million.

    Existing home sales in 2019, according to NAR data, 4,765,000.

    Questions;
    A) what percentage of the existing homes sold were photographed by professional real estate photographers?
    B) what percentage of those photographs were viewable on a Zillow Group website beyond the license granted to the broker/agent?
    C) what impact would not having pictures on the web page for a listing have had on traffic to Zillow Groups sites?

  23. @ Ken - I don't think that a photographer would be entitled to statutory damages per "imprint". I do believe that how many "imprints" there are will be taken into consideration for the award of actual or statutory damages.

    @ David Ward - Wasn't the establishment of AREP for the purpose of establishing a unified voice for real estate photographers? An organization that boasts over 2500 members but has yet to do anything to support their members. I agree with you that we, as a community, need to enter into rights managed license agreements with our clients and timely register every image that we deliver. Unfortunately, those of us that actually do that is a very small percentage of photographers. And that's true for all genres of photography.

    I have said it before....the main reason why infringement of our images is so rampant is due to the fact that we don't do anything to actually protect our IP. Larger companies know that fact and are willing to gamble on using images which they don't have a license to use. The chances are slim that they will be caught and there is a far slimmer chance that the image they are infringing was registered within 3 months of first publication or before the infringement occurs.

  24. Does anyone know how the tour companies deal with this? I ask because they are a larger group than individual RE photographers.

  25. I believe there are two major places where infringement happens ... 1) on the agent side of the MLS (upwind) and 2) on the aggregator side of the MLS (downwind). With a sound contract and registration of images, it doesn't seem that difficult to deal with infringement that happens upwind. Terms are laid out, DMCA or invoices are sent, agreements are reached, and yes, sometimes litigation is required.

    But the big issue is Downwind, and it's NOT the lack of a contract... it's the lack of a contract that is honored by the MLS. The MLS requires agents to agree to terms that they simply do not have the rights to, typically including statements about 3rd party, world-wide, derivative, and perpetual usage. Most agents put their head in the sand and sign, either not realizing, or not caring about, what they're signing. After that, it's a free-for-all, and sites like Realtor.com have been given the rights to image usage in any way they see fit, courtesy of the MLS. In order for an agent to truly comply with the MLS terms, they need to have essentially complete rights to the images. So what happens now? They either ask or demand it from the photographer. The photographer either rolls over or tells them it will cost them more to own the images. Realtor.com certainly isn't paying anything either to the photographer or to the agent to cover the additional costs. In fact, they're taking the images and using them to sell further services (leads) to the agent. If broker/owners truly realized that their agents were being potentially squeezed twice, I think they'd quickly move to support a realignment of MLS rules. And there's one other player in this who should be concerned; the new homeowner. How many current homeowners know that every listing photograph (including floor plans) of their new home is available for the world to see? Frankly I'm surprised that this has yet to be raised as an issue.

    We can continue to go after aggregators, but I don't think that will solve the bigger issue. Until the MLS is recognized as the fulcrum for the current situation, things will go on as they are. Litigation that focuses on the untenable nature of the MLS policies would, in my opinion, be going to the source of the issue. Require the MLS to rewrite their upload policies for agents. Allow 3rd party usage, but once the listing is removed/sold, require that all but the primary listing image be removed from circulation. Any usage after that date without a specific license would be infringement.

  26. @Kerry - Not sure why AREP is missing this discussion. I had a long conversation regarding these issues with Paul, the Executive Director, in LV so I know they are interested. Perhaps Joel, as a director, can add his voice vis a vie AREP.

    @Tracy - Your description of upwind and downwind seems reasonable with MLS as the fulcrum. They are, collectively the first place that all the images are collected as a common source. Based on several conversations in which I've participated my sense is that the onerous license requirements the MLS entities are asking agents to have photographers grant originate with the downwind aggregators that are providing the MLS services as contractors. It seems a reasonable conclusion since the MLS, based on its position is the stream and the nature of its services to agents has no long term interest in the images while the downstream aggregators do.

    One approach for photographers would be to generate two distribution files for a shoot. Once IDed for distribution to the MLS another IDed for distribution to Aggregators. Then offer a stock license to the aggregators with a direct distribution path. The offer, even if rejected by the aggregators, should strengthen a willful infringement claim when they scrap the MLS IDed image from their server.

  27. @Davide Ward,

    Can you explain this...

    "It seems a reasonable conclusion since the MLS, based on its position is the stream and the nature of its services to agents has no long term interest in the images while the downstream aggregators do."?

    If the MLS systems are the ones who grab rights and are the first in line to do so, how is it they have to long term interest when they are allowing (selling(?)) the photos to downwind(?) Aggregators?

    Am I missing something?

  28. Darn it.

    ...how is it they have NO long term...

    Brandon, maybe a forum that allows commenters to edit their comments is a good idea?

  29. I, for one, am going to start registering my photos, in large part, because of Mike's passion and his barrage of information.

    Q: doesn't the MLS have a financial stake in dealing with the aggreagtors?

  30. I dug out the copyright lectures I have on the computer and the "per infringement" argument was illustrated both ways. I'll have to ask for some clarification from the attorney. As Kerry stated, I'm pretty sure that it will have a strong bearing on the award in any case. The best example was when the infringement was used on a tangible product and recalling that product would have been prohibitively expensive. An infringer may be willing to pay more (not subject to any statutory limits) to not have to do a recall.

    I'm seeing some MLS's requiring the whole bundle of rights just short of exclusivity. Anybody that's been in military intelligence or likes to read those sorts of stories knows that you don't look at "intentions", you look at "capabilities". Why are the MLS's requiring all of the rights to the images? Is it CYA or are they looking to monetize those images? While I don't generally get a second agent looking to license images of a home I did for a previous agent, an MLS may see it far more often. If I've made some really nice images (when the home was nicely staged), the MLS could relicense the images to the next agent for a fair sum of money if they had those rights. A small percentage of listings where that is going on could be a very tidy cost free income (other than storage). I'm sure there are plenty of other licensing opportunities for an MLS that had the rights to re-sell images licenses. Imagine a parking lot at an airport where they were allowed to rent your car out while you were gone with no compensation other than, maybe, free or cheap parking. The next step is to make that arrangement mandatory for all parking anywhere near that airport.

  31. Ken, 17 USC 504, Section C, part 1:
    (c) Statutory Damages.—
    (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

    Key works here are, "with respect to any one work" Case law is one image award of one statutory damages.
    But with a DMCA it is per each time.

    With the MLSs it is definitely cover your past sins.

  32. Has anyone considered having their attorney draft a distribution license agreement that they can give to the local MLS.
    One that includes these business points;
    a) Ownership of copyright
    b) MLS limited term for distribution rights to third party real estate sales sites.
    c) Description of licensed material
    d) Duration of license to distribute tied to MLS listing agreement
    e) Means for renewing or extending distribution duration
    f) Means for changing terms of use
    g) Requirement that metadata related to copyright and ownership must remain attached to file
    h) MLS may not transfer or assign terms of use to third parties
    i) MLS must ensure that images are removed from third party sites at end of license term.
    j) MLS will cooperate with copyright owner supporting infringement determination and actions

    When agent asks agent to sign MLS license, respond by contacting MLS with this license. Better yet, proactively contact local MLS and present them with this license.

    Would be worth having Joel or another attorney comment. I suspect that offering this license, along with documenting that it was offered, and refused, would strengthen an infringement action against the MLS.

  33. (I agree with Frank, it would be great to be able to edit a post.)

    If one is directly uploading to MLS on behalf of agents it seems prudent to have a distribution license in place.
    The intent is to create a clear, documented, rights managed path for distribution.
    It's not important that the MLS pay a fee for the license, in my view. Much more important that they understand, accept and comply with the license terms.

  34. @Mike Boatman, Yes, Kerry pointed out that section and it's still rather vague. It's not defining what an "infringement" is and how it is counted. It's just about statutory mins and maxes. One example that was in a lecture was where Teddy Roosevelt produced a pamphlet as part of his Presidential campaign and didn't get a license for the image on the front. They had already printed 3 million of them and the dilemma was presented talking about the infringement, if it were to go to court, could make them liable for 3m x $1ea. $1ea being the statutory award "per infringement" at the time. The way it was resolved was hilarious. Another example was presented differently and I'm left confused as to which is correct and Sec 504 doesn't make it clear. There can also be precedent that muddies the water even more. There can also be Judicial bias through the judge's interpretation. As many infringements don't get heard in court, but are settled outside of official proceedings, it gets even worse to nail down. If I willfully rip and copy a CD and sell one copy at a swapmeet, is a judge going to set the fine at $150k? How about if I sell 150,000 of those CD's? If I can sell that many and make $3 on each one, a $150,000 fine would just be a cost of doing business and if I don't blow my profits on attorney's fees, I'm still laughing all the way to the bank.

    @David Ward, I don't deal directly with the MLS and when I reached out to NAR and the California sub-chapter to clarify the discrepancy between their published rules and the demand through a check box for full rights, I was essentially told to go pound sand and have my attorney contact them, end of story, end of call. My customer is the agent, not the MLS. At one point I considered joining the local real estate association as a non-licensed member so I could qualify for Supra Box access and it would be within the rules for me to upload images for agents. I finally decided against it as I would have to bind myself to the MLS rules and any changes they would make from time to time. The upshot would be that I would have to assign all of the rights to my images to the MLS if I were uploading them directly. The upshot is that you aren't likely to get anywhere with your local MLS. One of the ones near me has people that claimed they had no idea about the check box an agent had to click assigning their rights because they never "downloaded" any photos themselves and were dense as lead when I tried to explain that it was during "upload" not "download" or they were playing the fool to frustrate me so I'd go away. They aren't even going to let you talk to their legal department. At least, they weren't going to allow me to do so.

    The twist is that the NAR has in their 2019 guidelines that requiring the assignment of rights to the MLS shall not be required for members to participate. I believe that the guideline suite of rules is a template and it isn't required that all sub-chapters have to adopt it. I have no problem at all with the way the national organization outlined handling user content. I found it very fair and reasonable considering the role of the MLS is to aid agents in selling properties. The way I see it going, they are looking to monetize their monopoly position in the US by confiscating creative works and information and reselling them for a profit.

  35. Ken, with copyright the plaintiff is allowed a percentage of the profit that is equal to the percentage that the infringement equaled. In your example you would be able to collect statutory damages +3 dollars for each copy sold. But I'm not an attorney and I believe this discussion is moving into an area that could be better served by expert legal counsel. Also having said that each copyright case is unique, with unique infringements and unique applications of those infringements that the law is applied to. Probably the reason why only a judge can make the determination, if an image is fair use are not.

    David Ward, but as David points out you first have to have a rights managed relationship with your agent and you can't do a darn thing unless the images are registered.

    My personal lease agreement was only about four lines and it's already proven itself in two formal litigation. It can be as simple as, Mike Boatman creator and author of these photographs grant usage rights to agent Mary Jane for the sole purpose of selling, 124 Main Street, a house. Usage rights terminate with the listing contract. Mike Boatman is and will remain the sole and exclusive owner of all copyrights. Images may not be transferred to any third party without the express written consent from Mike Boatman. This is only meant to be an example but you don't need to get hung up on a overly legal ease contract with your real estate agent. It needs to be something simple that they understand written in common language that's in alignment with their desire to sell the house. For further strength it should be on every invoice and each property that you photograph should be uniquely identified on the invoice. If the invoice is paid the terms on the invoice are presumed by the court to be accepted. If you don't like the terms on an invoice you don't pay it because if you do you accepted the terms. Keep it Kiss common language.

    When you're getting a new client you should put your terms in an email as part of the discussion with the client. It's always best to discuss the terms on the front end. This way you are establishing an honest relationship at least on your side.

    It's important to remember if a infringement has to go into formal litigation the judge is trying to determine who's the villain. The defense attorney is going to try to make you the villain if they can't break or void your copyright registration. Everything you can do aboveboard and honest on the front end will defeat this defense. And quite honestly it's the ethical thing to do. They're stealing from you don't let them paint you as the villain for enforcing your copyrights.

  36. @KenBrown - can you point me to the specific location of this: "The twist is that the NAR has in their 2019 guidelines that requiring the assignment of rights to the MLS shall not be required for members to participate." Thanks.

  37. @Tacey, The guidelines are published on the NAR website. I haven't looked to see if there is an updated 2020 version yet.

    The text is:

    Participants cannot be required to transfer ownership rights (including intellectual property
    rights) in their listings or listing content to MLS to obtain or maintain participatory rights
    except that MLSs may require participants to grant the licenses necessary for storage,
    reproduction, compiling, and distribution of listings and listing information to the extent
    necessary to fulfill the defined purposes of MLS. MLSs may also require participants to
    warrant that they have the rights in submitted information necessary to grant these rights to
    MLS.

    The document is "NAR 2019-HMLP.pdf"

  38. @Tacey - Here's the link to the 2020 Handbook of Multiple Listing Policy. What Ken quoted above has not changed from the 2019 version which is on page 31.

  39. @Ken and @Kerry;

    I have some questions about the language quoted from the NAR guidelines. After the word "except..." in the second line, it sounds to me that an attorney could interpret the wording to require the MLS to ask for the grant of license and warranty that the onerous license agreements being passed from some MLS's to agents and photographers.

    Also, suggests that we need language in our license agreements to expressly state that license to agent grants them no rights to transfer the rights to a third party.

    My experience with IP attorneys is that its best to have precise language that minimizes interpretation. That seems to suggest, in this case a license agreement that's a bit longer than two or three sentences.

    Would be nice if Joel or one of the other attorneys would provide some insight.

  40. @JoelRothman

    If the NWMLS is REQUIRING that Realtors sign/check this before uploading photographs regardless of whether they actually have all these rights:

    "By submitting to NWMLS the Photographs, the Listing Firm licenses the Photographs to NWMLS and its members both during the term of the listing and thereafter, for any purpose, in any form, and with any alterations as NWMLS in its sole judgment deems appropriate. In addition, Listing Firm irrevocably licenses the use of the Photographs to NWMLS for the purpose of providing applications and services to its member real estate firms, which license includes the right to sublicense the Photographs to third parties providing the applications."

    Form 13, Photograph License Agreement, Exhibit A

    And:

    "Participants cannot be required to transfer ownership rights (including intellectual property
    rights) in their listings or listing content to MLS to obtain or maintain participatory rights
    except that MLSs may require participants to grant the licenses necessary for storage,
    reproduction, compiling, and distribution of listings and listing information to the extent
    necessary to fulfill the defined purposes of MLS. MLSs may also require participants to
    warrant that they have the rights in submitted information necessary to grant these rights to
    MLS."

    NAR 2019-HMLP.pdf

    Then I'm wondering whether there is a significant enough grey area in "...to the extent necessary to fulfill the defined purposes of MLS..." to make a case against MLS.

    This is what I found regarding their "defined purpose":
    https://www.nar.realtor/handbook-on-multiple-listing-policy/section-1-multiple-listing-service-mls-defined

  41. @Tacey,

    You see the same thing I am seeing with one of my local MLS's. I haven't done a careful read through of the NAB by-laws, but I believe that the published guidelines are not required to be followed by local or state "chapters". Those local chapters can implement any rules they wish. Copyright is a Federal law so there shouldn't be any need to make changes to what the National organization has offered as a template. There may be other clauses that do need to be tailored to meet state laws which could be why local chapters are given some latitude. You need to check the published rules for the NWMLS and see what their official position is.

    The problem I ran into was the the local MLS has a check box with the same sort of wording you posted that an agent has to check when uploading content, but their published rules contradicted those conditions. They've update their rules for 2020 and made their published rules even more egregious from a photographer's standpoint. I expect a few cases being filed this year due to this. It's putting agents in a very poor position. They have to join the local real estate association and be bound by their rules even though the rules are not in their best interest.

  42. David Ward I agree that the contract rights management for photographers needs to be absolutely forbidden the transfer of usage rights without the express consent in writing of the copyright holder. A lawyer once told me that when they want to make something airtight they use as few words as possible. This sentiment was echoed by another attorney I respect immensely now retired who said over lunch one of her favorite statements is, I'm sorry it's so long I didn't have time to make it short. Perhaps a solid rights managed contract cannot be done in 3 to 4 sentences but it doesn't need to be overly legalese wordy to be effective. It benefits photographers to keep it in common language, precise and short. The court system has more empathy for a layperson conducting business than they do for a legally educated person doing business. It's been my experience that the court system puts a little bit higher standard on the legally educated businessperson.

    I also agree with you that it should be written by an attorney. But the guidelines need to be common everyday language, precise and short as possible.

    You can always do a longer terms of usage that you provide to your clients prior to assignments that govern all assignments moving forward and then couple that with the abridged precise version specific to each property photographed on the invoice.

    Ken and Tacey It's been my experience that arrogance trumps stupidity. A stupid person will not do what an arrogant person will even when it's in their worst interest. In my opinion some of the MLSs are acting extremely arrogant. As you guys may know my primary background is from advertising photography. A little bit of history a couple of decades ago photographers and creative directors met for portfolio showings discuss jobs in the creative director or art director hired photographers for assignments. Then along the way media buyers were introduced into the mix. The media buyer was sent to seminars and given classes on negotiating and negotiating tactics. This gave the advertising agencies an advantage in negotiating terms with photographers and illustrators. I see a similar parallel here. That the MLSs know what the content of their contracts are with the aggregators and they have a monopoly control in their local markets over the real estate agents. There writing their policies out of arrogance to cover their past sins which is our leverage. The reason I say it's arrogant is because they seem to think that their policies have more authority than federal law.

    In 2015 when zillow litigation was first announced I went to the head of my local MLS and had a very long direct conversation about federal law copyrights in the fact that you just saying you have ownership doesn't mean that you do. Copyrights are considered real property the same as real estate and it can't be transferred verbally. And just because you say you have ownership doesn't mean you do unless the photographer in writing his transferred ownership to you or the agent then to you. With my MLS their behavior since 2015 has not changed. And just like Ken and Tracy have pointed out the devil is in the details of the wordsmith policies that they've used attorneys legal knowledge to write so that it has escape hatches. Just like in the advertising example above currently there is not an even playing field for the individual photographer to negotiate equitable usage rights. Especially since some the MLS have no problem in their arrogance to transfer usage rights to aggregators in accordance with their policies that violate federal law.

    The only way this changes is to turn to the law and put a spotlight on the arrogance. This may take a few well-placed cases to shake the arrogant understanding of the MLSs in general. But they can't cover up what they've done in the past again I say that's our leverage. We need to use this leverage to direct how business is done with us in the future.

  43. "I’m sorry it’s so long I didn’t have time to make it short." Nicely emphasizes that editing is a very important component of writing and can be very time consuming.

  44. "Perhaps a solid rights managed contract cannot be done in 3 to 4 sentences but it doesn’t need to be overly legalese wordy to be effective. It benefits photographers to keep it in common language, precise and short." Absolutely agree. I write my legal documents using as much plain English as possible, and I try to keep the writing as efficient as possible. Unnecessarily dense writing and legalese are barriers to clients understanding the terms of a contract.

  45. First, to clarify, I am not an attorney.

    That said, I had a professor in a business law class say that "the proposal is a statement of mutual benefit for a project." The contract should be " a statement of mutual pain, sufficient to encourage the parties to fulfill their obligations."

    For real estate rights management licensing agreements that seems like good advise.

    First step, define are the business requirements. Second step, define what rights need to be provided and protected. Third step, how can one and two be stated plainly, concisely and in a manner that ensures it will stand up in court.

  46. David Ward "in a manner that ensures it will stand up in court." This last part of his sentence is critical. Which is why an attorney needs to do final draft. But you need to pick an attorney that understands common sense business and sales. That's a tall order for attorneys in my opinion.

    I use voice recognition to help me type because I'm extremely dyslexic. Some of you have probably noticed bad words in my post. I wish I could do better but that's like asking a blind man to describe color. Having said that some of my best intention documents have fallen short in court due to David's last sentence. For example the word editorial does not have a legal definition. You can't use the word editorial and have it stand up in court as meaning a news article. You actually have to define editorial in a legal document to give it validity in court.

    Let's stop talking about this thing and get it done.
    There's a middle ground and I'm happy to commission my attorney Evan Andersen to write a contract or do a final edited on your draft of a contract and give it to the group.

  47. I'd love to see it...

    "There’s a middle ground and I’m happy to commission my attorney Evan Andersen to write a contract or do a final edited on your draft of a contract and give it to the group."

    Sounds great!!

  48. "But you need to pick an attorney that understands common sense business and sales. That’s a tall order for attorneys in my opinion." It is not the job of attorneys to tell you how to do business. Their job is to tell you what the law is, as best they can interpret it, and their opinion of the relative risks involved from non-compliance or of any grey areas in the law. Lawyers may differ over the grey areas and it is up to businesses to decide how much risk they can afford to take if they want to consider trying to push the envelope of what seems legal.

  49. David Eichler it's always risky to over generalize.

    You are correct in the primary job of an attorney but specifications per assignment based on purpose need to be taken into consideration. Complex contracts need to be nuanced in all aspects of impact of the contract need to be considered.

    If you're just looking at a contract on a relationship that's already established were where the sell is already been made in your finalizing the details to manage risk you're correct. But in many cases usage terms are part of sales. In fact I would say it's impossible to separate out usage terms from sales when the product is leasing photography. Photography gets its value from usage in the controlling factor on usage is copyrights. When a media buyer or any buyer is contemplating hiring a photographer the going to analyze or should the usage rights prior to. Of course I'm not telling you or anyone else anything you don't know. So the tone of the usage contract is definitely going to impact sales either positively or negatively. All I'm saying is this impact needs to be considered when establishing the usage contract.

    I should have something to post here in the next couple of days for the groups review. Sorry actual photography's getting in the way.

  50. @ David Eichler and @ Mike Boatman - In my view rights management and licensing images for real estate is somewhat of a special situation.

    What we want an IP lawyer to do for us is ensure that...
    A) ... we have a license agreement that tightly protects our copyright.
    B) ... specifically defines the terms of use for the client.
    C) ... specifically defines actions that are willful infringement
    D) ... to the extent possible, offers a path for the client to protect themselves from being caught up in an infringement action.

    Given what local MLS organizations seem to be doing more frequently to "protect themselves" by requiring agents to claim total control of images, I think it's also wise to have the IP lawyer draft a distribution license to counter act the MLS aggression. This license should, in my view, offer ...
    A) ... right to display and distribute with same terms as client license.
    B) ... requirement to remove images when notified by agent (client) that property has been sold or listing agreement has expired.
    C) ... specifically defines actions that are willful infringement.

    Then, proactively present the license to MLS organizations where agents upload images we've photographed.
    Whether they agree or not is less important than creating a documented track to show, during an infringement suit, that the photographer attempted to have the MLS organization become part of the rights management process of the photographer.

    @Joel Rothman and other attorneys that may be monitoring this thread; I'd like your opinion regarding the suggestions I've made here. I think they make business sense. I'm hopeful they also make legal sense.

  51. David Ward I agree that real estate is special. There are some licenses out there in use currently that address the majority of what you're asking for. I've reviewed several licenses and I believe to accomplish what we need is gonna be a combination of them.
    I would prefer that it be written in more common language but still have teeth.

    I've already spoken with Evan who has full knowledge that the intent is to give this to everyone free of charge on this blog and he's agreed that he will take the rough draft that I sent him and rewrite it for that purpose.

    Frankly though some of what you're asking for isn't possible. Since we are downstream from the agents we can't write binding contracts on the MLS that will govern the behavior between the MLS and brokers. The extent of our contract can only be with who we do business with. If you're dealing directly with the MLS then you can write a contract with them.

    The relationship between the broker and the MLS is their contract not ours. Having said that, this does not excuse the MLSs for facilitation of infringement that they've already done. And it is willful if any photographer brought it to their attention that they were giving usage rights to aggregators that they did not have the authority to do. If any infringement or inform the MLS of this and it's provable then all images after that notification would be classified as willful infringement. Something to think about.

  52. @David Ward, The court is going to make the decision about what constitutes a "willful" infringement. I'm certain that the plaintiff doesn't have that right. It's the same with Fair Use. I've seen people arguing that their infringing is "Fair Use" but there is no bright line test and it's up to a judge/jury to make that determination.

    Some things are very straightforward and are almost always considered Willful. If you put your Copyright notice on an image and somebody edits it or crops it out, that shows they at least had some doubts. Removal of MetaData should be another factor. There's no good reason to do it and any software doing it has been written to excise the meta data specifically since it's part of the image format spec.

    Beyond a well worded license, it's very important to sit down with every new client and any old ones you haven't talked with before about Copyright and make sure they understand what your license means. You don't want them skipping it because "it's just fine print, TL:DR" (Too Long, Didn't Read). I'm making it a point to make sure all of my customers are up to date with my licensing and ToS. It's better to not have problems down the road. If they are of the opinion that since they paid me to make the photos, they own them and don't get understand that there position is incorrect, I might want to stop doing business with them.

  53. Ken Brown, "willful" infringement" was my point not David Ward.

    Thank you for pointing out my use of the word sale; isolate peer all the time old habit I've been working hard at trying to break myself from using the word sale with photography the proper word should always be leased.

    As for willful infringement in the gray areas yes a judge will make a determination but there are absolutes. If you tell a person that you're the owner of the work and they may not use it and they use it anyway after notification that constitutes willful infringement. That's why I said if a photographer has had a meeting or an email exchange with the head of their MLS pointing out that they don't have the right to transfer usage rights and the behavior continues after that informational exchange it definitely falls into the category of willful.

    For my own protocols, I have a sit down meeting with my clients and discuss copyrights thoroughly and give examples of why and how. Then I give them a brochure with terms of usage and discuss the terms of usage. Lastly the terms of usage are on each of my invoices specific to the address. I always follow-up my sit-down meetings with an email summary of the meeting where I again go over terms of usage and copyrights. My behavior on this point has set aside many defenses.

  54. Sorry David. The best word is "licensed" since that's more accurate. I try to catch myself if I write "sold" or "sale" but I'm not always 100%.
    We are definitely of the same mind when it comes to communicating with clients. It should be stressed to do that as it can preempt so many problems down the road.

    I like willful. I really really like willful.

  55. Frank There are two different categories of images in the VHT case. What brought the litigation about was Zillow Diggs. Initially, Zillow contacted VHT about using images from their inventory as stock images to populate ZillowDigs. Then Zillow broke off negotiations and took the images citing their contracts with MLSs allowed them to use the images.

    The second category was all of the images that were left in place after the real estate agent uploaded. These images were not altered moved or reused they were simply left in place as the agent organized and uploaded.

    The jury got it right, and found zillow guilty for both the ongoing usage and ZillowDigs. The Ninth Circuit reversed a portion of the verdict. Not the entire verdict. The jury's verdict concerning ZillowDigs has not been challenged in appeals. That portion of the verdict of guilty for copyright infringement stance.

    The primary difference between ZillowDigs and the ongoing display is volitional conduct.

    The Court of Appeals in the Ninth Circuit ruling states that there was no volitional conduct on Zillow's part concerning the ongoing display. Because they weren't moved altered or used in a different purpose there wasn't any volitional conduct.

    As for ZillowDigs, because the images were cherry picked and used for different purpose than there was volitional conduct and the verdict stands.

    The portion of the Zillow verdict that has not been reversed is ZillowDigs. Please don't lose sight that there were two different categories of images in the VHT litigation.

    Therefore given the Ninth Circuit's rulings the litany test is worthy images were used in a different place and /or for a different purpose.

  56. Boatman,

    Nothing seems to be a straight line concerning this topic, huh? Or I'm not the sharpest tool in the shed.

    Breaking it down into fewer sentences, if possible, are you saying Zillow was found to infringe on the part where they took photos and used them for another purpose (Zillow Diggs) and the the other part (Zillow simply left the photos up on their site) they were not found to be an infringer?

    I thought part of your suggested copyright infringement lawsuit is how the MLS, Realtor.com, Redfin, Zillow etc. don't take down the photos of expired/inactive/sold listings.

    Am I lost?

    1) thank you, again, for your continued monitoring of your articles comment sections.

    And

    2) I look forward to your upcoming rights management article.

  57. Frank .....are you saying Zillow was found to infringe on the part where they took photos and used them for another purpose (Zillow Diggs...... YES

    the other part (Zillow simply left the photos up on their site) they were not found to be an infringer...... Correct.... BUT.... The jury found Zillow guilty. it was the appeals court that overturned that part and now I believe it's headed to the Supreme Court. But I may be mistaken on that last part. I believe it had something to do with safe harbor? I've only reviewed it relevant to my own cases and haven't read it in its entirety

    Any other court other than the Ninth Circuit would probably have left the jury verdict alone.

    As far as the MLSs they are transferring usage rights that they do not have, provided that the photographer rights manages.
    Generally speaking any entity that takes photographs and uses it for their own purpose without authorization is infringing. The question is whether or not it's willful or innocent infringement.

    Lastly, I'm not sure we should characterize it as my suggested copyright infringement lawsuit. Perhaps it should better be characterized as real estate photographers being part of deciding how their images will be used in the future.

    I'm starting on the third article Monday should have it you guys shortly.... Thanks

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