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?
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.