Who actually owns the photographs that your real estate photographer takes for you? That is a difficult question to answer because it all depends on your agreement and the type of agreements your photographer is prepared to work under. Different MLS offer different advice, but be aware, the more ownership you ask for of these photographs, the more you are likely to have to pay. Watch the video below from the National Association of Realtors to try and get a better understanding of photography copyright.


 

Hello my name is Chloe Hecht, and I’m Associate Counsel for the National Association of Realtors. This month’s window to the law focuses on copyright issues relating to listing photographs. Listing content fuels the real estate industry and people expect to find that content on the Internet. Displaying photos of properties online is now a vital part of the real estate professionals marketing plan. Unfortunately the Internet also makes copyright infringement easy. Images can be taken and easily used and distributed without a copyright owners permission.

In the real estate industry a fractured landscape of rights further complicates things. Listing photographs are taken by people with different roles in the transaction and the rights to use photos are transferred in different ways. Which is what this image illustrates. This image shows that a listing photograph could be taken by an MLS employee, brokerage employee, homeowner, agent or professional photographer and the rights to use that photograph could arise through different types of agreements, like a work made for hire agreement, assignment, non-exclusive license or exclusive license. It’s important that the way you use listing photographs and permit other people to use them is in line with the rights you have in the photographs. A misunderstanding of those rights could increase the risk of a copyright infringement lawsuit.

So how do you understand those rights? First it’s important to review photography agreements to assess how exactly those agreements permit you to use the photos. For example does the agreement limit your use of the photographs to active marketing listings. Or does the agreement permit use regardless of whether the property has been sold.

Listing photos should then be audited to ensure compliance with the relevant agreements. Moving forward, review exactly how you want to be able to use listing photographs and make sure that future agreements permit those uses. Also keeping a record of all photography agreements will ensure that it’s possible to determine which photos may be used in which way at any time. To help members and they are created sample professional photography agreements, specifically a work made for hire agreement, assignment and exclusive license. Members may consult these agreements to ensure they are obtaining the rights needed to use listing photographs.

The work made for hire agreement provides that you will own the rights in the photographs as they are created. The assignment provides that the photographer assigns all of his or her rights in the photographs to you, and the exclusive license permits your exclusive use of the photographs in connection with the real estate industry. Including advertising real property and sub licensing these rights to third parties.

Please keep in mind that these sample agreements do not constitute legal advice and should be modified to accurately reflect the parties arrangement. These agreements are available on real.org. What if a third party listing includes photographs that infringe a copyright and you are displaying those infringing photographs on your website for example through an IDX display. Compliance with the Digital Millennium Copyright Act or DMCA will help to protect you in that situation. The DMCA is an important risk management tool because it limits the liability for copyright infringement.

The DMCA provides a safe harbor for online service providers that hosted websites that permit users to upload their own content which NAR believes applies to MLS and participants or subscribers that host an IDX display if an online service provider meet certain criteria for the safe harbor then it will not be liable for copyright infringement if a third party user uploads infringing content to its website. Those criteria include designating a copyright agent with the Copyright Office, and on its Web site. Implementing a DMCA compliant website policy. Complying with the DMCA takedown procedure. Having no knowledge of complained of infringing activity having no knowledge of facts that make any complaint of infringing activity apparent. And finally if the online service provider is capable of controlling the infringing activity, then it may not receive a financial benefit attributable to the infringing activity.

[00:04:31] Head to w ww.realtor.org for additional resources relating to the DMCA. With the increase in copyright infringement lawsuits in the real estate industry these risk management strategies will help protect you from copyright infringement liability. If you have any questions please email me at checht@realtors.org. Thanks for watching this month’s episode of window to the law.

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