By Katie Agness

When buying or a selling a home, the MLS listing is typically one of the first, and often most impactful, opportunities to showcase property. Whether viewed by the REALTOR or prospective homebuyer during a property search, the listing discloses a variety of essential information from location to square footage to price, all factors that can attract and deter a prospect.

Aside from the essential criteria, the MLS listing can be a driving factor in whether a home buyer is interested in a property. This has led many agents to get creative with their listings, specifically regarding the descriptions and photography, to enhance a property’s charm and appeal.

Additionally, many real estate companies and REALTORS alike create professional websites to market their services, areas of expertise and accolades. Like the MLS listings, these websites utilize content and imagery to better portray their brand and offerings to potential clients.

While often unintentional, many MLS listings and professional websites are in violation of copyright infringement laws because of the photographs used. According to the U.S. Copyright office, “copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression … including literary, dramatic, musical, and artistic works.”
Penalties for copyright violations can be steep. “Even if the copyright owner cannot show they have been damaged, the federal law provides a penalty range from $200 to $150,000 for each work infringed, plus court costs and attorney’s fees,” says Joe Babb, General Counsel for the Austin Board of REALTORS and their MLS, ACTRIS. “Under some circumstances, though typically unusual in the real estate community, the infringer can even go to jail.”

Copyright Challenges
But what mistakes are the real estate community making when choosing and using photographs online? As described earlier, the issues typically arise within an MLS listing and professional website.

MLS Listing Liabilities
There are a few ways to produce photographs for a listing, such as through an MLS employee, REALTOR, homeowner, or third-party photography. Often, to ensure a high-quality product, a third-party photographer is hired; however, even in lieu of a contract, copyright laws may still be broken.
“The rights some REALTORS obtain from photographers are often insufficient for them to comply with their MLS rules,” Babb says.

According to the MLS rules, to be compliant, the REALTOR must “warrant,” or promise, to the MLS that they own or have obtained all rights to the images and content within the listing. Additionally, they must grant the MLS the right to use the listing content “for any purpose consistent with the facilitation of the sale, lease and valuation of real property.”

“Where REALTORS slip up is in the license from the photographer,” Babb says. “Often, it is only valid through the marketing period of the property, which means they are in violation of the MLS rules and their warranty to the MLS because the listing content must also be available after the sale, for use in the valuation of other properties.”

When valuing comparable properties, REALTORS utilize data, including photographs, from previously sold properties. Because of this, the MLS repository serves as an important valuation tool. “Even if the license is no longer valid based on the contractual agreement from the photographer, the MLS doesn’t know and is relying on the warranty from the REALTOR that their rights are sufficient to comply with the rules,” Babb says. “To protect themselves from penalties for infringement claims and MLS rule violations, REALTORS need to secure a license broad enough to cover all MLS uses.”

Protecting a Professional Website
Whether a business or IDX website, stock imagery is often used. Possibly pulled through a web search or from another webpage, it’s illegal under copyright laws to use third-party photographs without the appropriate permissions.

In recent years, many businesses across a variety of industries have been receiving demand letters from photo licensing businesses and photographers, such as iStock or Getty Images, requesting that their images be removed, and in some cases request compensation, due to copyright violations. The companies who created the photographs own them, and even though they can be obtained online, they cannot be used without payment and agreement.

Additionally, it’s important to recognize that the website owner is always liable for the violation, regardless if a third-party web developer assisted in the creation and production of the website.

How to avoid Copyright complications
There are three ways to ensure copyright compliance to protect your business.

  1. Understand the MLS Requirements
    If you are using a third-party or outsourced photographer for MLS listings, it’s imperative to review the contracts to ensure they meet the requirements of the copyright law and MLS rules.
    “I advise that REALTORS should obtain the full rights and ownership over the photographs, or at least an exclusive license that covers all MLS purposes, not just the marketing period, in a written agreement with the photographer,” Babb says.
  2. Audit the website
    Review the website in question and identify all images. If you cannot confirm where the photographs came from and that you have the appropriate permissions to use them, you should remove them from the website, either until you obtain documentation or replace them with compliant images.
    To ensure you are using approved, legal images, take pictures you used or hire a photographer (with a contract) to take the photos for you. If you use a third-party website, pay the licensing fee to use the photo legally.
  3. Limit Liability with the DMCA
    To help protect a business or individual from lawsuits related copyright infringement, the Digital Millennium Copyright Act (DMCA) provides “safe harbor” provisions against the accidental or inadvertent publishing of copyrighted materials online. “Any display of a copyrighted photo, without obtaining the proper rights from the photographer, is a copyright violation, but we believe the DMCA gives you an ‘out’ to avoid the penalties if you comply with its provisions and take down infringing photos upon request,” says Babb.

Ultimately, using or publishing photographs online, either on a website or MLS listing, should be closely monitored by REALTORS. Whether you, a vendor or colleague was responsible for the actual upload of a copyrighted image, any and all parties can be liable. Before your next posting, make sure you’re in compliance with copyright regulations and ensure all previous materials aren’t in violation to avoid future demand letters, fines and even jail time. RL