By Grant Harpold

Who owns the photographs that were taken of your listing? I would imagine most REALTORS® don’t know or think that they own them. Why does it matter? All photos and data submitted to a Multiple Listing Service (MLS) or to a Commercial Information Exchange (CIE) like Commercial Gateway must be free of any copyright claims, meaning, you must have ownership of or sufficient rights to the photographs or content for their use by the MLS or a CIE. Generally, the person that takes the photo owns the copyright unless there is a written agreement stating otherwise. For example, if a broker or agent does not expressly own the photography, then typically the photographer owns the copyright and can seek compensation for unauthorized use of the photos, better known as copyright infringement. If found liable for infringement, statutory damages alone can range anywhere from $200 to $150,000 per photo, depending on the conduct of the infringer. Lack of knowledge, a familiar defense for licensees in a property defect case, does not defeat liability in an infringement claim.

There are two ways that listing content can expose you to liability. First, if you did not create the data yourself and you have no agreement with the data originator, like your photographer, giving you “ownership of” or “rights to use” the photos or the data. Exposure could occur when the MLS or Commercial Gateway causes the photos or data you submitted to be published across the Internet without the right to do so, putting you at risk to indemnify the MLS or the CIE and its members for any fines or fees they incur. Alternatively, if on your Internet site, you have listings containing photos or property information that you did not create, but originate from various sources that do not have the proper consent from the owner or creator of that information. This scenario could occur from use of an Internet Data Exchange (IDX) display of listings, i.e., the IDX feed you are currently receiving and using from the MLS, or if you receive and display listing content from Commercial Gateway.

What should I do to address this risk?
Don’t provide information to the MLS or to the CIE that you did not originate unless you have an agreement in writing, like with your photographer, which essentially gives you ownership of the photographs taken of the property and/or gives you a license to use the photographs in any manner you choose. Next, to protect your online services (website, Facebook, etc.) from copyright claims of listing information submitted by other subscribers, have your webmaster create a link, or a post within your Terms of Use for what is referred to as a “DMCA Notice.” The Digital Millennium Copyright Act (“DMCA”) provides a “safe harbor” from copyright infringement liability arising from the unauthorized use of photos or other creative works. Essentially, it provides a chance for you to receive notice and pull-down photos allegedly violating a copyright without any liability. To take advantage of this protection, certain notice provisions must be a part of your online or Internet services. Additionally, you must designate an agent, which can be anyone affiliated with you or your entity, for receiving notice of an alleged copyright infringement. This person must be registered with the U.S. Copyright Office – a very easy process. Having a DMCA Notice on your website is a must if you are publicly displaying MLS listings or Commercial Gateway listing content.

If you go to HAR.com and scroll to the bottom of any webpage, you will see “Terms of Use.” Click on it and go to Paragraph 17, “Copyright Notice,” to see the appropriate provision which should be on your site. Likewise, for another example, there is a DMCA Notice at the bottom of each Commercial Gateway webpage. Also, at copyright.gov/dmca-directory/ you will be easily guided through the process of registering your designated agent. With respect to securing legal rights to your photographs or listing content, HAR has a model agreement entitled “Content Creation Master Agreement” for use between you and your photographer or any party affording you the rights to the use of your photos or content, which also gets you compliant with MLS Rule 1.2 and CIE Rules 3 and 3.1governing your submission of data.

If you do receive notice that a photo on your website is possibly infringing a copyright, then remove it immediately and alert the MLS or the so it can be removed. If your DMCA Notice is in place on your website, then you should be able to avoid any payment demanded by responding to the claimant and alerting them to your DMCA Notice.

Posting the DMCA Notice on your Internet services should be done immediately if not there already.

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