Recap: ABoR Forum - Protecting Listing Photos

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The latest ABoR Forum: Protecting Listing Photos, featured three legal experts: Mitch Skinner (Owner and Managing Member of Larson Skinner, PLLC), Chloe Hecht (NAR Associate Counsel), and Joe Babb (ABoR legal counsel of Babb, Reed & Leak, PLLC) discussing copyright laws and best practices regarding listing photos in the MLS. One of the most relevant topics yet, this Forum helped shed some light on the challenges brokerages are facing with listing photos and provided the information they needed to start safeguarding their photos and their business.

Recently, there have been more lawsuits in the industry surrounding photo ownership and copyright infringement. Why the uptick? Brokers and agents don’t always know what rights they have to listing photos, especially when a hired photographer is involved. They typically end up in hot water if they fail to use the photos not in accordance with the photographer’s agreement. Even if the broker or agent do follow the photographer’s terms, often that usage isn’t in compliance with the ACTRIS terms of use.

Copyright basics

The first part of the Forum identified copyright basics, differentiating among copyright (original authorship), patent (process), and a trademark (brand), and between authorship (person who creates the work) and ownership (current owner of the copyright). It also highlighted three different sources of liability: using photos from the internet that are not free to use, using photos beyond the license terms, and copying another agent’s photos or property description. An MLS listing’s photos, layout, and text are all subject to copyright.

Real-life scenarios

The copyright knowledge, until this point, was applied to real life scenarios. These three cases in the real estate industry pertain to copyright issues: Stross v Redfin, VHT v. Zillow, and Boatman v Coldwell Banker Honig-Bell. One case hitting home for brokers and agents is the most recent lawsuit against Zillow from VHT Studios. Zillow was ordered to pay $8.3 million for violating VHT’s copyright and displaying images to Zillow’s Digs website. NAR asks its members to understand the rights they are getting from photographers and then giving to third parties like MLSs and portals.

Reviewing the ACTRIS agreement and Terms of Use

To be a participant or subscriber to the MLS, a member has agreed to ACTRIS that he/she already has the rights to listing photos, that their contributions to the MLS do not infringe on copyrights, and that the MLS can use photos for all MLS purposes, which includes facilitating the sale, lease, and valuation of real property (ACTRIS Policies 7.0). One problem is that a lot of these photographer agreements only cover photo usage for marketing purposes, and do not extend beyond that. This puts the broker or agent at risk for copyright infringement if the broker breaches the photographer agreement.

Two ways to mitigate risk

  1. Comply with DMCA Safe Harbor.
  • Register a designated agent with the US Copyright Office.
  • Add notice and contact information to your website.
  • Follow the safe harbor procedures if there is a takedown request.
  1. Know your rights.

If you have photo ownership, you should have a thorough understanding of listing photo usage and you should know the rights you have to photographs. To mitigate risk, review all photo agreements and read new agreements in detail to learn the terms and owner’s rights. If you need to make any adjustments, talk with the photographer to modify an agreement. Ask to be allowed to use photos without restriction or time frame, and work with an attorney to include warranty indemnification clauses on future agreements. Do not settle if you can’t modify an agreement; you can always hire a new photographer to get you what you need.

Check out these resources discussed at the Forum:

Creative Commons
ACTRIS Terms of Use
NAR sample photography agreements


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