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Does the MLS own the copyright to real estate photos, tours?

The real estate industry is not new to having to protect their copyrights, particularly photos, but many may not know that their MLS retains the copyright to all images once uploaded.

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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.

The American Genius is news, insights, tools, and inspiration for business owners and professionals. AG condenses information on technology, business, social media, startups, economics and more, so you don’t have to.

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10 Comments

10 Comments

  1. EricEstate

    May 25, 2012 at 10:41 pm

    I really doubt that photographers grant copyright to Realtors.  I know when I was a photographer, I never did.  I took over 1.25 MILLION photos, and I retain the copyright to each and every one of them.  
     
    Instead of transferring copyright (which I registered with the library of congress), I would grant a limited license to whoever hired me to use the photos.  I made sure the license would cover any way they wanted to use them, so there wouldn’t be any problems later.
     
    Here’s the issue.  Agents who don’t have copyright can’t transfer it.  It’s that simple.  You can’t give something to someone that you don’t have.
     
    There’s a big issue with this – and someday it will probably be solved in court, but not in the way you would think

  2. BrettClements

    May 26, 2012 at 4:35 am

    Under the digital millennium copyright act, and under copyright law in general, copyright in all images resides with whoever took the photograph or recorded the image UNLESS it is signed over.  By accepting terms on web sites, you sign it over. The same actually applies to YouTube. Personally, I think there is also another issue here. I believe the home-owner owns the pictures. For they own the home; and the contents; and when we ‘work’ we are on private property. At least, in Australia, where VPA or Vendor Paid Advertising is a main mover. Our company’s attitude, and we take thousands of photographs and video a year, is the home owner, the Vendor, owns the material once the exclusive listing expires. 

    • homingCloud

      May 29, 2012 at 10:22 am

       @BrettClements totally agree that the home owner should own the pictures.  
       

      • simslyn

        June 4, 2012 at 3:34 pm

         @homingCloud
         Whoever took the photos owns them. If you take a picture of a building that doesn’t mean the building’s owner now owns the photos. Duh.

  3. edwardzbrown

    May 26, 2012 at 6:14 am

    With mortgage rates at all-time lows, now may be a great time to refinance — if you meet new stringent criteria. Search online for 123 Refinance they got me the 2.97% rate even with my not so good credit history. You can learn the secrets of Refi.

  4. blarsonmpls

    May 26, 2012 at 9:04 am

    The answer to this question varies a lot from market to market. For example, National Association of REALTORS policy prevents MLSs affiliated with NAR from requiring the transfer of copyrights from brokers to the MLS, though some MLSs have a program where the broker has choice whether to transfer copyrights.

    Brokers who use a photographer should have a written agreement that makes it clear exactly who owns the work product. (Generally, the photographer, if not the broker’s employee for tax purposes, retains ownership of the copyright.)

    We talk a lot about this issue on our blog at http://www.MLSTesseract.com.

    -Brian

  5. ericaramus

    May 26, 2012 at 9:49 am

    I have a problem with this. I also belong to multiple MLS systems. One, TREND, has a similar policy and they actually watermark photos we upload. I understand it is to prevent scraping, but I don’t understand how they can enforce the transfer of ownership of the photos that I TOOK. 

  6. Steve DeGuzman

    May 26, 2012 at 9:42 pm

    If you agree to it yes.

  7. simslyn

    June 4, 2012 at 3:32 pm

    I also have a problem with the final wording from the MLS on who has ownership of the photos. If I take the photos, I should have control & final outcome & usage of those photos. I understand where & how this started – this doesn’t mean it has to continue. In one of these attached posts on this subject, the MLS attorney for my area (MRED) states that they would not enforce this wording. Agents would have to pursue copyright themselves. But that still doesn’t change the wording on that final sentance ‘grant back permission’. Gee, how nice of you to allow ME the usage of MY photos. Someone should challenge this in court as you shouldn’t give up your rights just to disseminate photos on the internet or in print.

  8. Pingback: Fotag lets agents copyright their photos, solves the issue of ownership and duplication - The American Genius Real Estate

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Austin

Austin tops the list of best places to buy a home

When looking to buy a home, taking the long view is important before making such a huge investment – where are the best places to make that commitment?

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Looking at the bigger picture

(REALUOSO.COM) – Let us first express that although we are completely biased about Texas (we’re headquartered here, I personally grew up here), the data is not – Texas is the best. That’s a scientific fact. There’s a running joke in Austin that if there is a list of “best places to [anything],” we’re on it, and the joke causes eye rolls instead of humility (we’re sore winners and sore losers in this town).

That said, SelfStorage.com dug into the data and determined that the top 12 places to buy a home are currently Texas and North Carolina (and Portland, I guess you’re okay too or whatever).

They examined the nerdiest of numbers from the compound annual growth rate in inflation-adjusted GDP to cost premium, affordability, taxes, job growth, and housing availability.

“Buying a house is a big decision and a big commitment,” the company notes. “Although U.S. home prices have risen in the long term, the last decade has shown that path is sometimes full of twists, turns, dizzying heights and steep, abrupt falls. Today, home prices are stabilizing and increasing in most areas of the U.S.”

Click here to continue reading the list of the 12 best places to buy a home…

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Housing News

Average age of houses on the rise, so is it now better or worse to buy new?

With aging housing in America, are first-time buyers better off buying new or existing homes? The average age of a home is rising, as is the price of new housing, so a shift could be upon us.

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aging housing inventory

The average home age is higher than ever

(REALUOSO.COM) – In a survey from the Department of Housing and Urban Development American Housing Survey (AHS), the median age of homes in the United States was 35 years old. In Texas, homes are a bit younger with the median age between 19 – 29 years. The northeast has the oldest homes, with the median age between 50 – 61 years. In 1985, the median age of a home was only 23 years.

With more houses around 40 years old, the National Association of Realtors asserts that homeowners will have to undertake remodeling and renovation projects before selling unless the home is sold as-is, in which case the buyer will be responsible to update their new residence. Even homeowners who aren’t selling will need to consider remodeling for structural and aesthetic reasons.

Prices of new homes on the rise

Newer homes cost more than they used to. The price differential between new homes and older homes has increased from 10 percent traditionally to around 37 percent in 2014. This is due to rising construction costs, scarcity of lots, and a low inventory of new homes that doesn’t meet the demand.

Click here to continue reading this story…

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Housing News

Are Realtors the real loser in the fight between Zillow Group and Move, Inc.?

The last year has been one of dramatic and rapid change in the real estate tech sector, but Realtors are vulnerable, and we’re worried.

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Why Realtors are vulnerable to these rapid changes

(REALUOSO.COM) – Corporate warfare demands headlines in every industry, but in the real estate tech sector, a storm has been brewing for years, which in the last year has come to a head. Zillow Group and Move, Inc. (which is owned by News Corp. and operates ListHub, Realtor.com, TopProducer, and other brands) have been competing for a decade now, and the race has appeared to be an aggressive yet polite boxing match. Last year, the gloves came off, and now, they’ve drawn swords and appear to want blood.

Note: We’ll let you decide which company plays which role in the image above.

So how then, does any of this make Realtors the victims of this sword fight? Let’s get everyone up to speed, and then we’ll discuss.

1. Zillow poaches top talent, Move/NAR sues

It all started last year when the gloves came off – Move’s Chief Strategy Officer (who was also Realtor.com’s President), Errol Samuelson jumped ship and joined Zillow on the same day he phoned in his resignation without notice. He left under questionable circumstances, which has led to a lengthy legal battle (wherein Move and NAR have sued Zillow and Samuelson over allegations of breach of contract, breach of fiduciary duty, and misappropriation of trade secrets), with the most recent motion being for contempt, which a judge granted to Move/NAR after the mysterious “Samuelson Memo” surfaced.

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Last fall, the News Corp. acquisition of Move, Inc. was given the green light by the feds, and this month, Zillow finalized their acquisition of Trulia.

…Click here to continue reading this story…

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