Transferring copyrights to the MLS
First Multiple Listing Service (FMLS) is a 55 year old MLS serving over 30,000 real estate professionals in Georgia, and like any MLS, it has very specific Terms of Service (TOS) as to real estate photography. MLSs must outline what is and is not allowed when Realtors upload images, content, or virtual tours, in an effort to protect the integrity of the MLS content. Also serving the area covered by FMLS is the Georgia MLS (GMLS), and it is not uncommon for Realtors to be served by more than one MLS.
When closely reviewing the TOS of the FMLS, Georgia Realtor, Lane Bailey noticed that by uploading a photo, virtual tour, or any content, Realtors are transferring ownership of them to the FMLS:
“ASSIGNMENT OF CONTENT, INCLUDING PHOTOS AND VIRTUAL TOURS Any and all content, photographs, virtual tours or other materials that you hyperlink to the Site, upload onto the Site or provide to FMLS in any form or medium for inclusion on the Site or in the FMLS database are collectively referred to herein as the “Work”. You hereby irrevocably assign and transfer to FMLS all right, title and interest (including, without limitation, all copyrights and all other intellectual property rights) in and to the Work. You warrant that you have the full right, power and authority to assign the Work to FMLS. If you agree to these Terms of Use by clicking “I Accept” below, the Work you provide to FMLS, including all photos, virtual tours, and other materials and information, will be the sole property of FMLS. FMLS grants you a non-exclusive, royalty-free license to use the Work in your real estate brokerage business.”
Bailey noted that when transferring ownership, the wording reveals that FMLS will grant back a non-exclusive permission to use the images. Additionally, because this area (like many others across the nation) is served by more than one MLS, similar wording in other MLSs can put Realtors in violation of the Terms of Service when uploading the same photos to both MLSs. Bailey said, “After uploading them to one, we no longer own them, and therefore can’t transfer ownership to the other.”
Potential license suspension or fines
Violations of any MLS Terms of Service could result in potential license suspension or fines. While the language in the TOS is not likely directed at Realtors, rather a precautionary measure against scrapers, and third parties, but Bailey notes that despite being a potentially innocent policy, the MLS could be “wading in the pool of unintended consequences,” and adds that he believes Realtors legally maintain the rights to images they upload, the wording above says otherwise.
Bailey added, “What about those of us that might use pictures shot by a pro… that might also appear in magazines. It also means that you have to buy the copyrights from your photographer if you have the listing photographed by a professional.”
Copyright issues have been contentious regarding real estate photography, as it is common for third parties to use photos directly from the MLS or a Realtor’s website without attribution and other blatant acts of theft are rampant. Realtors are not new to guarding their copyright, but the MLS typically acts in concert with the professional, rather than against, which is what some may say this particular policy does.
The FMLS is not likely the only MLS in the nation using this wording, nor this policy, so it is important for real estate professionals to be aware of what rights they do or do not have, especially with their own content, virtual tours, and photography. The FMLS did not respond to our requests for comment.
Also read: “Real estate photos: widespread copyright concerns” to see some reactions and proposed solutions to this issue.
