There are several ways property photos arrive on a multiple listing (“MLS”) service. An MLS employee may take the photos used in MLS, or the MLS Participant (or one of its employees) may take the photos and make them available to MLS, or MLS or a Participant may hire a photographer to take the photos. The purpose of this article is to address the copyright issues raised by each of these different methods of submitting photos to MLS. The other two possible photo sources mentioned above, photos taken by an MLS participant or a third-party photographer hired by an MLS or MLS participant, address additional issues and will be the focus of the rest of the article. Listing content is the driving force of the real estate industry, and posting photos of properties online is now an important part of the real estate professional`s marketing plan. Sellers use photos to market properties, and buyers rely on these images to choose the properties they want to visit. MLS distributes real estate listings through proprietary databases that contain the photos of the listing. In addition, MLS, in turn, often licenses its real estate listing databases, including photos provided by the broker, to third-party portals such as realtor.com® and other websites and providers. When an agent hires a photographer to take photos of an ad, the photographer doesn`t just give the photographer ownership of those photos when they deliver. The contract usually states that the agent only gets a license to use these photos for the purpose of listing the home, and that they are only to be used during that specific period of time (until the house is sold or taken off the market for any reason). However, misuse of ad photos can lead to legal problems for agents, brokers, and MLS.
The authorship and ownership of photographs in the real estate sector are “fragmented”. Who wrote the photo and who can use which photo in what way varies depending on the industry. Listing photos can be taken by owners, real estate agents, MLS or brokers, or professional photographers. Photos may be owned or licensed to different parties in different ways. A misunderstanding about how to use photos for real estate listings could leave you vulnerable to a copyright lawsuit. The problem for real estate professionals is that someone, often a company, owns every image online. For example, copyright infringement in the photo listing is at the heart of the recent VHT, Inc. v. Zillow Group, Inc., 918 F.3d 723 (9th Cir. 2019) lawsuit.
VHT retains ownership of the photos in the listing and grants brokers only non-exclusive licences to use the photos solely in connection with the marketing of active real estate listings. In the complaint, VHT alleged that Zillow used VHT`s photographs without authorization in connection with “sold” properties and on Zillow`s home design website “Digs”. After a jury trial, a verdict despite the verdict and an appeal, it was concluded that Zillow had directly infringed VHT`s copyright in the photos posted and viewable on Digs; The amount of damages has not yet been determined. However, one of the main reasons Zillow did not directly violate the listing photos on Zillow`s listing platform was VHT`s inability to provide signed licensing agreements with the various listing brokers who provided the photos to Zillow. So, with a little forethought, it would be a good idea to include a clause when creating a lease that allows the landlord to take photos that can be used in case they decide to put the property up for sale. Consent could also be obtained by creating a separate document to be signed at the time of photo request describing the tenant`s consent to photograph the rental unit. The first method described above, in which an MLS employee takes the photo, is an application of the so-called “work done to hire” principle. Since an MLS employee took the photo in the normal course of his work, the photo is treated as if MLS were the photographer. Applying the traditional copyright rule to photographs, it is concluded that MLS owns the copyright and controls the right to reproduce and distribute it. As the copyright owner, MLS may use the photo without infringing copyright.
Although copyright ownership would theoretically allow MLS to require its members to acquire a license to use the same photo in a comparative market analysis or advertisement for ownership, in practice, no MLS is known to attempt to impose such a requirement on its members. With offices in Barrie and Wasaga Beach, De Palma & Associate can provide legal representation in small claims cases, landlord-tenant disputes, speeding tickets, U.S. entry exemptions, criminal pardons (file freezes) and document engagement throughout the Georgian Bay and Greater Toronto Area. If you have any questions or need legal representation, call us at De Palma & Associate – (705) 429-2401. However, copyright is not friendly and ignorance of the law is no excuse. Violations of the law can result in high legal and civil penalties. Pretending that your site was developed by a third-party provider that selected photos is also no excuse. If you are the owner of the website, you are responsible for the infringement. Your website developer can share the responsibility, but no matter who chose your site`s images, you can be held liable.
