Imagine that you just signed a listing agreement to sell a glamorous house. Your photographer captures many great photographs of the property, but none provide the pizzazz you are looking for. Glancing at the property’s previous listing for inspiration, you notice a gorgeous aerial shot of the house that portrays the exact “wow” factor you seek. Should you use the photograph in your listing?
If you do, you might find yourself on the wrong end of a copyright infringement lawsuit.
Photographs, videos, drawings, virtual tours and other original visual content are owned by the creator of such content. Listing photos may be created by a professional photographer, a brokerage or MLS contractor, the agent, or even the homeowner. If someone other than the listing agent takes the photographs, the listing agent must receive authorization in order to use the photos.
Authorization is typically provided in the form of a written agreement between the listing agent and the photographer where the photographs are: 1) identified as a “work made for hire” owned by the listing agent; 2) assigned to the listing agent, or 3) licensed to the agent. If the photographs are assigned, the agent owns all rights to the photos and can use them in any manner he or she desires. However, if the agent merely receives a license, the photographs can only be used for the purpose for which they are licensed, and the photographer retains ownership of the photos. Thus, a license agreement should contemplate all permitted uses and should:
- include a license to use the photograph in connection with the property listing, including in flyers or on the agent’s website;
- provide the ability to sublicense the photograph, such as the sublicense the agent might grant the MLS when entering the photo into the MLS system;
- acknowledge that the photograph may be syndicated through multiple channels; and
- specify when the license expires.
Displaying a photograph on a personal website or using the photo for a separate listing (for example, if the photo depicts the exterior of a condominium complex) may not be permitted under the terms of the license agreement. Any use of the photographs not explicitly licensed in the agreement would exceed the scope or duration of the license and could constitute copyright infringement. In order to avoid an infringement lawsuit, photographs and other artistic content should only be used for the authorized purposes.
Providing Photographs to Other Sites
Real estate professionals who provide listing photographs to an online service provider for an unlicensed use may find themselves equally liable for such infringement if they had knowledge of the unlicensed use. A listing agent that received a license from a photographer grants a sublicense to an online service provider when it uploads those photographs. However, the rights granted in the sublicense can never exceed those rights the listing agent received from the photographer. For example, if a listing agent obtained a license to use a photograph from the photographer for the purpose of advertising the sale of the property, uploading that photograph to an online provider that continues to display the listing after the property has sold could constitute contributory copyright infringement.
Rights of other MLS Members
Although MLS members do not grant a direct license to use their listing content to each other, each MLS member grants a broad license to the MLS, which includes the ability to sublicense the listing content to other MLS members and vendors. However, the license granted by the MLS to other members is limited to the terms of the license and does not grant other members unrestricted rights to use the photographs as they desire. For example, where an MLS only granted members a license to use photographs of sold properties for valuation purposes, the court held an MLS member that used the photographs for other purposes could be sued by the copyright owner for infringement.
Therefore, to avoid running afoul of copyright law and infringing others’ rights, real estate agents should limit use of other agents’ listing photographs for the specific purposes authorized in the license granted from the MLS.
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