By Lindsay J. Nakagawa, Attorney
Imagine that you just signed a listing agreement to sell a glamorous house. Your photographer captures many great photographs of the property, but none provide the pizzazz you are looking for. Glancing at the property’s previous listing for inspiration, you notice a gorgeous aerial shot of the house that portrays the exact “wow” factor you seek. Should you use the photograph in your listing?
If you do, you might find yourself on the wrong end of a copyright infringement lawsuit.
Photographs, videos, drawings, virtual tours and other original visual content are owned by the creator of such content. Listing photos may be created by a professional photographer, a brokerage or MLS contractor, the agent, or even the homeowner. If someone other than the listing agent takes the photographs, the listing agent must receive authorization in order to use the photos.
Authorization is typically provided in the form of a written agreement between the listing agent and the photographer where the photographs are: 1) identified as a “work made for hire” owned by the listing agent; 2) assigned to the listing agent, or 3) licensed to the agent. If the photographs are assigned, the agent owns all rights to the photos and can use them in any manner he or she desires. However, if the agent merely receives a license, the photographs can only be used for the purpose for which they are licensed, and the photographer retains ownership of the photos. Thus, a license agreement should contemplate all permitted uses and should:
- include a license to use the photograph in connection with the property listing, including in flyers or on the agent’s website;
- provide the ability to sublicense the photograph, such as the sublicense the agent might grant the MLS when entering the photo into the MLS system;
- acknowledge that the photograph may be syndicated through multiple channels; and
- specify when the license expires.
Displaying a photograph on a personal website or using the photo for a separate listing (for example, if the photo depicts the exterior of a condominium complex) may not be permitted under the terms of the license agreement. Any use of the photographs not explicitly licensed in the agreement would exceed the scope or duration of the license and could constitute copyright infringement. In order to avoid an infringement lawsuit, photographs and other artistic content should only be used for the authorized purposes.
Providing Photographs to Other Sites
Real estate professionals who provide listing photographs to an online service provider for an unlicensed use may find themselves equally liable for such infringement, if they had knowledge of the unlicensed use. By uploading content to a site, a listing agent provides a sublicense to the site to use the content. However, the rights granted in the sublicense can never exceed those rights the listing agent received from the photographer. For example, if a listing agent obtained a license to use a photograph for the purpose of selling the property featured in the photo, uploading that photograph to an online provider of marketing services could constitute copyright infringement
Rights of other MLS Members
Other MLS members receive a license to use the photographs in the MLS’s listing content compilation through their participation in the MLS. However, that license is limited and does not grant other members unrestricted rights to use the photographs as they desire. Because MLS members do not directly license use of their listing photographs to each other, they are unable to bring a lawsuit for copyright infringement against another MLS member for use of the licensed MLS compilation.
That issue was recently decided in Stross v. Redfin. In that case, MLS Rules limited use of other members’ sold listings to valuation reports for clients. However, the MLS participation agreement granted a broader license. Stross, a photographer and real estate agent, discovered photographs from his sold listings were displayed on Redfin’s VOW and were not used in support of a valuation. Stross sued Redfin for copyright infringement, alleging Redfin’s use of Stross’ sold photographs exceeded the license participants of the MLS grant to each other. The court dismissed the case, finding Stross did not have standing to sue Redfin because Stross was not a party to, or third-party beneficiary of, the participation agreement between the MLS and Redfin. Thus, MLS violation reporting procedures may be the only recourse available for MLS members that believe their photographs are being misused by other participants.
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