Chad Jones asks:
I had my images stolen of a 12 million dollar malibu home by the Daily Mail UK a few months ago. They stole the images from the SoCal MLS. The image size has gone up on all the listings uploaded to the MLS. On top of sites like realtor.com creating one click videos and what not with the images they get from the MLS. Along with the syndication mess that is rampant. You really never know where your images may end up. Watermarking wont stop the stealing, but it could deter it.
Should I consider start watermarking my images? What would be the pros and cons with regards to the RE photo niche and the clientele we have in your opinion? What do others do that you know of?
Here is my response to Chad:
The first consideration is the rules your local MLS. Many, if not most MLSs claim that the act of uploading a photo to the MLS transfers the copyright to the MLS even though in legal fact they are just licensed to use and syndicate them for the duration of the listing. My local MLS here in Oregon actually puts their own copyright notice on listing photos when they are uploaded (See the example photo above I shot a few weeks ago of a commercial property. Even though the agent agreed to my TOS that said that I retain the copyright, the MLS actually puts a copyright notice on all photos uploaded to the MLS). Here is a thread on the PFRE flickr group that discusses this issue and gives many examples of the kind of MLS TOS statements I'm talking about.
I've heard of many cases where real estate photographers report that their copyright watermark was removed and the MLS's copyright was added. The biggest problem that putting your copyright watermark on a photo intended for upload to a MLS is that it makes it difficult for your client to assert that they own the copyright which many MLSs require. If you claim the copyright and the MLS claims the copyright the agent is in a bind but will do whatever is required to put the property on the MLS.
So yea, this is a crazy mess and Most MLSs have crazy practices that probably will not stand up in court. But who's got the time or money to fix all this. There are actually a few MLSs that actually have it together and only claim they have a license to distribute and syndicate your photos for the term of the listing.
The ones that are claiming they own the copyright are doing so to protect their asses from people like you that may sue them for having your photos stolen from their sites or sites they syndicate to. The Swampman summarizes the situation nicely at the bottom of the PFRE flickr group thread about this when he says:
Having experienced this myself and reading many times from others who have also had to deal with legally questionable MLS practices, I have sadly come to the conclusion that this will not end until someone or some group files a successful lawsuit against these offending MLS's. My hope is that it won't end in enormous damage rewards but will get NAR, the FTC, or some other govt agency to develop a uniform MLS policy which protects the rights of the independent photographers (not the ones under work for hire agreements) as well as the data the MLS feels it has a need to protect. Until then, I think we'll continue seeing posts like this over and over.
Sorry Chad, there just isn't a simple answer to this issue unless your MLS is one that has a reasonable TOS and will leave your watermark on your photos. Anyone else have experiences with this issue and your local MLS?
Update May 3: Here's the paradox in the concept of MLSs claiming that the act of uploading photos to the MLS gives the copyright to the MLS: an agent can't honor a photographers copyright and the MLS's copyright at the same time.