Understanding copyright law is imperative in our ever-evolving digital world. Copyright law protects creative works from unauthorized use and, in the real estate industry, copyright issues often arise in connection with listing photographs. Improper use of listing photographs can create copyright infringement liability for agents, brokerages and MLSs. Implementing copyright risk-management strategies may help real estate professionals avoid liability.
It’s crucial for real estate professionals to know and fully understand the rights they own in listing photographs. Real estate professionals should strive to own their listing photographs. When ownership is not possible, real estate professionals must be aware of the rights they are receiving in the photographs and how they permit others to use the photographs. Agreements governing the use of these photographs often contain certain limitations or restrictions that professionals must be aware of. To reduce the risk of potential copyright infringement, professionals should:
– Review photography agreements to assess how you may use the photographs.
– Audit your use of listing photographs to ensure compliance with the relevant agreements.
– Determine how you want to use listing photographs and ensure future agreements permit those uses.
– Maintain records of all photography agreements.
The National Association of REALTORS® (NAR) created template photography agreements for members’ use, including a work-made-for-hire agreement, an assignment agreement and an exclusive license. 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.
Compliance with the Digital Millennium Copyright Act of 1998 (DMCA) will help real estate professionals avoid liability when infringing content appears through an IDX feed. Under federal copyright law, online service providers are protected from liability for copyright infringement when those online service providers comply with certain procedural requirements. One such exemption is for website owners who allow third parties to post user-generated content, for example, a brokerage website that includes an IDX feed of third-party listings.
If the brokerage complies with the requirements for this exemption under the DMCA, the brokerage will not be liable for copyright infringement if a third-party listing displayed through the IDX feed includes infringing content. Those criteria include: designating a copyright agent with the copyright office and on its website; 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 complained-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.
Congress has expressed an interest in working to modernize copyright laws. Last year, the Senate Judiciary Subcommittee on Intellectual Property held a series of hearings on copyright laws and issues to hear from stakeholders about what reforms are necessary. Also, draft legislation has been released providing several proposed reforms designed to combat copyright infringement while seeking to balance the interests of copyright owners, content creators and online service providers. Proposed reforms would also seek to improve the process to address copyright disputes and acknowledge good faith attempts by online service providers to locate rightful copyright owners, which could be good for real estate professionals.
NAR will continue to work with industry partners as well as lawmakers to weigh in on any reform proposals to DMCA that impact real estate brokerage businesses and MLSs. In the meantime, legal resources on copyright issues for real estate professionals can be found at nar.realtor/copyright.
Nia Duggins is the National Association of REALTORS®’ senior policy representative on business issues.
