Data Licensing Listing Syndication MLS (Multiple Listing Service) Zillow

Basic Data Rights To Photos

It seems at least once a week I hear a broker complain that Zillow Group (ZG) is still displaying listing photos and property description remarks even after the listing has been sold or removed from the syndication feed. How can that be, they ask? What right does ZG have to continue the display when the property is now off-market? In some cases, even the new owner is heard to complain that they do not want photos of their home made public on an active website.

Well, typically ZG refers to the very broad language in their Terms of Service such as “For materials you post or otherwise provide to Zillow Group in connection with the Services (your “Submission”), you grant Zillow Group an irrevocable, perpetual, royalty-free worldwide license to (a) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your Submission, in connection with the Services or in any other media, and (b) sublicense these rights, to the maximum extent permitted by applicable law.”

Similar language covering perpetual license and derivative works was found in past syndication agreements, although questions arose whether photos and agent remarks were considered “data” and could be used off-market.

Fast forward to today and we see some clarification of the issue of using photos and remarks when the listing is no longer active and part of the feed. If this truly is a change in ZG policy, it is indeed a very good sign that ZG is making greater effort to work closer with the real estate industry.

Specifically, where are we seeing some clarification with respect to ZG no longer seeking a perpetual license to property photos and descriptions?  When ListHub stopped sending its syndication feed to Zillow Group effective April 8, 2015, Zillow introduced a “Stopgap License Proposal Agreement” with MLSs as a temporary measure (6 months) to continue the flow of listings to ZG while negotiating for a permanent direct syndication arrangement. In that stopgap agreement, ZG claimed a right to “Basic Data” but specifically excluded photos and free form property descriptions (agent remarks). Here’s the key language:

“MLS grants to Zillow a non-exclusive, worldwide, royalty-free license and right to reproduce, distribute, publicly display and perform, and create derivative works of the Licensed Data only on and in connection with the operation, marketing and promotion of the web sites and other properties owned, operated or powered by Zillow and Zillow’s authorized licensees. …(b) Licensed Data includes only active listings (listings currently for sale) and, except as provided in Section 4 subsection (c) below, when a listing is no longer active and is dropped from the RETS feed, Zillow’s license to that listing terminates. (c) Notwithstanding the foregoing, MLS grants to Zillow a perpetual license to “Basic Data” as defined in Exhibit A attached hereto (see Zillow Listings Feed Guide at http://bit.ly/1aFdY3u).

For avoidance of doubt, “Basic Data” does not include any free form property descriptions or photos and in no event will Zillow receive a perpetual license to free form property descriptions or photos.”

In its FAQs, ZG asks “Why does Zillow need to retain some of the “basic data?”

Their response: “When new home facts and information are added to our database, it helps to build information about the history of a home and assist in the overall customer experience. Since we will get this data from county records anyway, we prefer to not give our customers an inconsistent experience when looking at homes by adding data, removing it, and adding it again. So, when “basic data” is added to a home via a listing feed, it becomes part of the house history on Zillow.”

Will the ZG clarification of Basic Data rights along with its exclusion of property photos and remarks carry over to its long term direct syndication license agreements with MLSs and brokerages? Will ZG discontinue use of photos and remarks that it acquired in the past? Time will tell, though it is a healthy sign that MLSs are starting to see some gains in their negotiations with the portals.

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