Connect with us

Hi, what are you looking for?

The American GeniusThe American Genius

Housing News

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.

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.”

Advertisement. Scroll to continue reading.

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.

Advertisement. Scroll to continue reading.

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.

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

Leave a Reply

Your email address will not be published. Required fields are marked *

Advertisement

The
American Genius
news neatly in your inbox

Subscribe to our mailing list for news sent straight to your email inbox.

Advertisement

KEEP READING!

Business News

(FINANCE) An anti-trust lawsuit against major players in the residential real estate industry sheds light on misinformation and misunderstandings about commissions - when you're...

Business Marketing

(MARKETING) Opcity is the Austin startup making big changes to the ways that lead generation happens in real estate.

Business News

(REAL ESTATE NEWS) NAR CEO Dale Stinton is set to retire after his successor is named. Stinton is known for his steady leadership and...

Austin

When looking to buy a home, taking the long view is important before making such a huge investment - where are the best places...

The American Genius is a strong news voice in the entrepreneur and tech world, offering meaningful, concise insight into emerging technologies, the digital economy, best practices, and a shifting business culture. We refuse to publish fluff, and our readers rely on us for inspiring action. Copyright © 2005-2022, The American Genius, LLC.