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Residential Real Estate

Wait, That's Not Your Photo!

Understanding Copyright Infringement - Issues with Listing Photos. Baseball is no longer the national pastime. I think today’s favorite indulgence is surfing the web and checking the wonderful photos of real estate properties, whether they be exterior or interior shots, luxury homes, aerial views, video tours, 3D Imaging, you name it.

But who owns the photograph and what rights do they have to stop a third party from infringing on those rights? Those and related issues are the focus of several risk management articles prepared by the legal staff at the National Association of REALTORS®.

In an article titled “Who Owns Your Property Photos?” the author points out that: “Improper use of listing photographs, however, can create legal problems for agents, brokerages and MLSs. 

Authorship and ownership of photographs within the real estate industry is “fractured”. Who authored the photograph and who can use what photograph and in what way varies across the industry. 

Listing photographs may be taken by homeowners, real estate agents, MLS or brokerage employees, or professional photographers. Photographs may be owned or licensed to different parties in a variety of ways. A misunderstanding of how you may use the photographs for property listings could make you vulnerable to a copyright lawsuit.” 

The article cites an ongoing case alleging that Zillow continued to use the listing photos in connection with “sold” properties and that this use exceeded the scope of the photographer’s limited license to use the photographs only in connection with active property listings. 

As part of a Risk Management Strategy, the article recommends the following:

1. Review photography agreements to assess how you can use the photographs

2. Audit photographs to ensure compliance with the relevant agreements

3. Determine how you want to use listing photographs and ensure that future agreements permit those uses

4. Maintain a record of all photography agreements

To that end, NAR provides some Sample Photography Agreements for you to review with your attorney:

    •    Work Made For Hire Agreement
    •    Assignment Agreement
    •    Exclusive License Agreement

So, what happens when you display listing photos on your website provided by other brokers under IDX rules and it turns out that one of those photos is now the subject of a copyright infringement claim by the photographer?  If there was no way for you to know about the infringement claim, how can you protect yourself?

NAR’s Associate Counsel Chloe Hecht offers advice in a video titled “Window to the Law: Listing Photo Copyright Issues.” In the video, she suggests that you can limit your liability for copyright infringement by complying with the federal Digital Millennium Copyright Act (DMCA).

This act provides a “safe harbor” if a third party uploads infringing content on your website. But to enjoy this safe harbor, you’ll need to designate a copyright agent on your website and with the Copyright Office, implement a DMCA-compliant website policy, comply with the DMCA takedown procedure; and have no knowledge of the complained-of infringing activity.

In short, be respectful of the photography rights of others and be clear about what rights you grant others to use your listing photographs. And, as recommended in these articles, carefully review the relevant photography agreements.
  • November 9, 2017

  • John Reilly

Presenting Offers

Presenting an offer is an exciting proposition for even the most seasoned industry professional. But this is also a delicate time fraught with pitfalls and confusion. Industry experts Saul Klein and John Reilly take a couple of minutes to hit the highlights of important parts to consider when navigating this critical detail of the real estate transaction.
  • November 1, 2017

  • RealTown

Organized Real Estate

Technology companies often make the mistake of developing products for the real estate professional without understanding the many ins and outs of working with the technology that runs real estate and the associations that control that technology. Long-time real estate expert Saul Klein dives deep in this video to explore the world real estate tech development and what issues must be considered before diving into real estate tech.
  • November 1, 2017

  • RealTown

Seller Representation Among Real Estate Agents

In real estate everybody represents the seller, right? Not so fast, this idea that was once a foundational part of the real estate business changed some time ago. Saul Klein and John Reilly take some time to examine the elements behind who can really represent the seller in real estate.
  • November 1, 2017

  • RealTown

REALTOR® Compensation

How you heard this one before, "Hey I know what, I'll become a real estate agent, it's easy and they make tons of money!" This often heard comment among noobs makes any seasoned real estate professional laugh. Real estate is a serious business and it takes real work and time to become successful. Saul Klein and John Reilly spend some time considering working in the business and what newcomers can expect on the job. 
  • November 1, 2017

  • RealTown

Multiple Jobs in Real Estate

We've often heard the mantra proclaimed by Saul, "Work for free, work for free, work for free, work for free, get paid." It's the call of the real estate agent and it's true even today. Saul Klein and John Reilly spend some time discussing the idea of working multiple jobs while making your way in the real estate trade.
  • November 1, 2017

  • RealTown

Lead Generation in Real Estate

Many real estate agents are all about the leads. They ask questions like: Where can I get leads? How can I get more leads? And why don't my leads convert? But leads are only a small part of building a relationship with a client. Saul Klein and John Reilly spend some time examining the concept of leads and how to best consider this controversial topic.
  • November 1, 2017

  • RealTown