Category : Copyright

Copyright Data Licensing MLS (Multiple Listing Service) Risk Management

Copyright Infringement Issues with Listing Photos

Forget about baseball being the national pastime. I think today’s pastime is surfing the web and checking the wonderful photos of real estate properties, whether they be exterior or interior shots, luxury homes, aerial views, video tours, 3D Imaging, you name it.

But who owns the photograph and what rights do they have to stop a third party from infringing on those rights? Those and related issues are the focus of several Risk Management articles prepared by the legal staff at the National Association of REALTORS®.

In a September 2015 article “Who Owns Your Property Photos?” the author points out that: “Improper use of listing photographs, however, can create legal problems for agents, brokerages and MLSs. Authorship and ownership of photographs within the real estate industry is “fractured”. Who authored the photograph and who can use what photograph and in what way varies across the industry. Listing photographs may be taken by homeowners, real estate agents, MLS or brokerage employees, or professional photographers. Photographs may be owned or licensed to different parties in a variety of ways. A misunderstanding of how you may use the photographs for property listings could make you vulnerable to a copyright lawsuit.” http://www.realtor.org/law-and-ethics/who-owns-your-property-photos

The article cites an ongoing case alleging that Zillow continued to use the listing photos in connection with “sold” properties and that this use exceeded the scope of the photographer’s limited license to use the photographs only in connection with active property listings. VHT, Inc. v. Zillow Group, Inc., No. 2:15-cv-1096 (W.D. Wash. 2015). http://www.realtor.org/sites/default/files/court-records/2015/vht-complaint-2015-09-23.pdf

As part of a Risk Management Strategy, the article recommends that you:

  1. Review photography agreements to assess how you can use the photographs
  2. Audit photographs to ensure compliance with the relevant agreements
  3. Determine how you want to use listing photographs and ensure that future agreements permit those uses
  4. Maintain a record of all photography agreements

To that end, NAR provides some Sample Photography Agreements for you to review with your attorney:

So, what happens when you display on your website listing photos provided by other brokers under IDX rules and it turns out that one of those photos is now the subject of a copyright infringement claim by the photographer? There was no way for you to know about the infringement claim. How can you protect yourself?

As suggested by NAR’s Associate Counsel Chloe Hecht in a five minute video clip “Window to the Law: Listing Photo Copyright Issues,” you can limit your liability for copyright infringement by complying with the federal Digital Millennium Copyright Act (DMCA) which provides a “safe harbor” if a third party uploads infringing content on your website. You’ll need to designate a copyright agent on your website and with the Copyright Office; implement a DMCA-compliant website policy; comply with the DMCA takedown procedure; and have no knowledge of the complained-of infringing activity.
http://www.realtor.org/videos/window-to-the-law-listing-video-copyright-issues?cid=RISVID0022

 

In short, be respectful of the photography rights of others and be clear about what rights you grant others to use your listing photographs. And, as recommended in these articles, carefully review the relevant photography agreements.

 

 

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Copyright Data Licensing MLS (Multiple Listing Service) NAR

NAR's General Counsel responds to Microsoft's Bid for MLS Data – 1998

We have always known that the data has value. As a side note, I wonder if Rich Barton (Zillow) was at Microsoft at the time?MLSNAR_Page_1 MLSNAR_Page_2 MLSNAR_Page_3 MLSNAR_Page_4

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Copyright Data Licensing

Copyright of MLS information…Press Release from Clareity Consulting

REDPLAN hires industry veteran attorney Darity Wesley as administrator   SCOTTSDALE, Ariz. (December 10, 2013) – REDPLAN, the Real Estate Data Protection Legal Association Nonprofit, announced that Ms. Darity Wesley will serve as its Administrator. Wesley is founder of both Privacy Solutions, Inc. and Lotus Law Center and veteran of more than 30 years in the real estate information industry. REDPLAN is an association owned and run by its members for the purpose of protecting the intellectual property of member companies, promoting the common interests of the real estate information industry and keeping its members informed of issues pertinent to its business model.   Gregg Larson, REDPLAN visionary and one of its five founding board members, says, “Darity brings incredible legal experience, industry insight and a career’s worth of dedication to bring data security and intellectual property protection from its infancy to its current stage of being able to support our industry wide organization. She has the depth and breadth of knowledge we need to make my dream of stopping data piracy and protecting the valuable assets of the real estate information industry happen once and for all. ” Larson is also founder and CEO of Clareity Consulting Inc. and Clareity Security.   Ms. Wesley says, “I am excited to be able to support this important venture. My mission with REDPLAN is to put the structures in place to help the real estate information industry protect its intellectual property assets, promote industry education on data use compliance and pursue violators of the laws that poison the life blood of the real estate industry, the flow of data. ”   About REDPLAN   Real Estate Data Protection Legal Association Nonprofit, or REDPLAN, is an organization dedicated to protecting the real estate industry’s copyrighted materials and intellectual property rights. Protecting listing data for its rightful owners has been a prominent issue in today’s industry, thus giving reason to create REDPLAN. REDPLAN was founded by Clareity Consulting and Claude Szyfer of Stroock, Stroock & Lavan LLP in May of 2013. REDPLAN’s Board of Directors, comprised of representatives of MLSs, Associations, Brokerages, Franchises and Information Companies, will serve as the advocacy group’s initial leadership team.

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