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.
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