YOU PAID FOR THE IMAGE and still got sued for using it?
The real estate industry is populated by professionals licensed, trained and experienced in putting together the most impactful and complicated transactions that most Americans will encounter in their lives. So why is it that we have so much trouble navigating the purchase, use, and ownership of photographs? Rights to own and use photographs are quite complex and originate in copyright law. Most real estate brokers (and lawyers, for that matter) have no reason to dive into copyright law and, for generations, our industry thrived in joyful ignorance of photo copyright issues…and then we became dependent on the internet to market listed properties.
The vast majority of Washington REALTOR® members list properties in their MLS and, in doing so, allow other MLS members to advertise the listing through the MLS internet data exchange (“IDX”) process on those members’ websites. REALTOR® members may also elect to advertise the listing across the internet through a host of secondary marketing sources. The delivery of listing information to these secondary sources was likely predetermined by broker’s firm or broker’s franchise under an agreement entered into, sometimes, years ago. Unfortunately, that agreement often allows the secondary marketer to use the listing photographs for any purpose, in the absolute discretion of the secondary marketer. Even more remarkable, the agreement often allows the secondary marketer to use the photographs, literally forever.
This is where a broker’s problem with photo copyrights typically begins. A broker may have paid a professional photographer to take pictures for broker’s use in marketing seller’s property for sale, but often broker did not pay the photographer for the right to use the photograph for other purposes, such as allowing a third party to use the photograph in ways unrelated to broker’s sale of the property. Putting it in real estate terms, broker may have “leased” the photograph for the purpose of marketing the seller’s property for sale, but broker had no right to give the “leased” photo to a third party for that third party to then use, forever, for any purpose chosen by the third party. In copyright law, the terms “lease” versus “sale” are not used. Rather, the law considers the difference between the “licensing” of rights to use a photo versus “ownership” of the photo.
In this complex world of internet marketing, brokers must understand the terms of the agreement that sends the broker’s listing into the MLS (i.e., what is the license required by the MLS) and separately, to secondary marketers on the internet. Brokers must also understand the rights that broker has in any photograph. Without a clear understanding of both contracts, broker cannot possibly hope to comply with copyright law.
What license is required by the MLS?
When broker uploads a listing into the MLS, the broker licenses the use of the listing information, including the listing photographs, to the MLS and the other members of the MLS. Brokers need to ensure that they acquire the necessary license to the listing photographs in order to input the photos to the MLS—so the MLS and other members of the MLS can use the photos as permitted by MLS rules.
How does your listing get to secondary marketing sources?
Somebody with authority over broker’s listings entered into a contract with internet marketing companies allowing the dissemination of broker’s listings to multiple secondary sources. If broker did not personally enter into that contract, and it is rare that an individual broker would have, then broker’s firm or broker’s franchise entered into the contract. While some MLSs will send listings to a secondary source, none will do so without direction from the listing firm. Broker should understand who directed the sharing of broker’s listing with the secondary source. Broker’s designated broker should know how and why broker’s listings are getting to the worldwide web through secondary sources. In many cases, franchises entered an agreement with the secondary marketers, and that agreement controls all listings taken by any broker licensed to a franchise firm.
Northwest Multiple Listing Service (NWMLS) does not provide listing information to secondary marketers on behalf of its member firms. Rather, NWMLS members provide their listings to secondary marketers themselves. The author of this article is not aware of agreements that may or may not have been entered by other MLSs serving Washington REALTOR® members.
Once broker identifies the contract party who authorized submission of broker’s listings to the web, broker must then obtain information about the authority granted in the contract with the secondary marketers. What use are the secondary sources allowed to make of broker’s listings and, more importantly, of broker’s listing photos? If the secondary marketing company can use broker’s listing photos for any purpose, that is significant. That means that broker must own sufficient rights in any listing photo so that broker can “give” the photo to the secondary marketer with no limitations on the use made of the photo.
What rights do you have in the photos taken for you by your professional photographer?
Brokers should never hire a professional photographer for listing photos without having a written contract with the photographer. The contract must convey sufficient rights in the photos to allow broker to use the photos as they will, in fact, be used. If the photos will be provided to secondary marketers to be used for any purpose in perpetuity, the contract must allow that use.
Some photographers will not sell their photos, thus giving all rights to the purchaser, although that is an option that brokers can attempt to negotiate. If complete ownership of the photograph is not conveyed to broker, then some lesser interest in the photograph will be “licensed” to broker through broker’s written agreement with the photographer. That license must be sufficient to satisfy the use that will be made of the photo by any secondary marketers receiving the photo.
Brokers have several sources for obtaining sample contracts for use with photographers. NWMLS members can use Forms 13 and 13A. REALTOR® members can obtain sample contracts from NAR.
https://www.nar.realtor/law-and-ethics/managing-listing-content/sample-documents-and-implementation-guides-for-mls-listing-content-module
Brokers must understand the terms of the contract used and the interest in the photograph obtained using that contract.
If the interest in a photo that broker is already using is not sufficient for broker’s current use of the photo, then broker should seek guidance from broker’s DB and possibly from legal counsel and, at a minimum, gain an appreciation of the risk of continuing to use the photograph. Ignoring the issue could be very expensive.
Hotline Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. If you’d like to submit questions to the Legal Hotline, e-mail them to legalhotline@warealtor.org. Please have your NRDS number ready when you e-mail the Hotline with your question. The Legal Hotline lawyer does not represent Washington Association of REALTORS® members or their clients and customers.