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Real estate photos: widespread copyright concerns

The real estate industry’s recent listing data debates have heightened awareness of where, how, and why data of all types are being used. Now, the focus is on photos and the issue is not as clear cut as it may seem.

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In the real estate industry, brokers are growing acutely aware of what it means to syndicate listings and what it entails both technically and the positive and negative ramifications of sharing data, with some choosing to stop syndicating listings, primarily to Zillow, Trulia, and Realtor.com.

This awareness has real estate professionals and brokers considering what other contracts that they have entered into, with a new concern heating up concerning questions over who owns the copyright of real estate photographs. The catalyst was a recent email from the First Multiple Listing Service (FMLS) to members, notifying them that all photos would soon be watermarked, pointing to a recent escalation in copyright issues, noting that like many MLSs, they would watermark in an effort to protect content from “scammers, scrapers, etc.”

Also in the email to FMLS members was a notification that all uploaded content, photos and tours is, noting that uploading to the FMLS transferred copyright from the uploader to the MLS. Georgia Realtor, Lane 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.”

The extent of the copyright dilemma

After our original story was featured on the Photography for Real Estate (PFRE) website, one reader said in comments that he has responded by submitting the issue to the Copyright and Government Affairs department of the Professional Photographers of America, an industry association and lobby.

PFRE Founder, Larry Lohrman said, “Here’s the situation: 1. Real estate photographers believe and behave like they own the copyright (which I believe they do if this was settled in a court case). 2. Listing agents for the most part don’t care about, pay attention to or understand copyright and photo licensing. They just do whatever’s necessary to get their listing online ASAP. 3. MLSs are concerned about the potential legal risk of having copyrighted photos that they don’t own the copyright to in their listing databases that they syndicate to large number of real estate sites, so they say in their terms of service that the act of uploading photos transfers the copyright to the MLS or specify that no copyrighted photos can be uploaded to their MLS.”

Florida real estate photographer Mike Yother takes it further and asks on the PFRE site, “if the photograph has had the power lines in the backyard or the athletic stadium cloned out and the MLS claims they own the photo, are they now the liable party when the seller sues them for misrepresentation?”

Additionally, copyrights of real estate photos extends not just to real estate syndication sites, but to other types of web properties. Is the “real estate porn” of high-end listings and sexy houses across America that are featured on blogs in violation of whoever argues they own the photo’s copyright, be it the MLS, broker, agent, homeowner or photographer? In that vein, when blogs and websites “feature” homes, are they also assuming liability for any potential misrepresentation as addressed by Yother?

Suzanne at PowerVision360.com said, “Did you know that with some upgrade photo companies – when you upload their terms of service are that they can do as they please with the photos – so the FMLS is not that far out of line. Most companies that offer a free album or gallery have this clause in their terms of service. It’s only when you pay for the PRO service that you retain the rights to your photo gallery.”

Several potential solutions

Currently, photographers often use a service called “Digimarc” which adds a digital watermark that cannot be seen with the human eye, but offers tracking of any use of the image on any website online, so that any use of a photo that has a copyright can be found and the copyright owner can reach out to the violator and request removal or pursue any damages.

Mark Miranda at Miranda Multimedia said that the Wichita Area Association of Realtors (WAAR) has enacted a policy wherein agents are required to either own the images they upload or have a written release to use them. This policy came about after an agent posted a Getty Image without permission and Getty directly contacted the broker and WAAR. Miranda notes that the resulting policy includes a $1,000 fine per image uploaded to the MLS without ownership or written permission for use. “In other words, if you steal all 24 listing photos from the listing of an agent who previously had a property listed, or that someone else commissioned to have taken, you can be fined $24,000!”

The solution this photographer uses is granting a limited, non-exclusive license to the agent to use the images for the purposes of marketing the home, and an unlimited non-exclusive license to WAAR for the purposes of syndication to IDX sites through the MLS. Miranda’s invoice to agents notes that payment of the invoice is an accepting of the licensing terms.

Miranda notes, “The terms printed on the invoice indicate their license to use the images, WAAR’s license to use the images, and an indemnification of WAAR should the agent violate the licensing terms. At first I was leery of providing WAAR with an unlimited license, but that’s far better than assigning all rights to them. In reality, they have no need or desire to use the images for anything other than syndication anyway.”

Lohrman said, “This can’t be rocket science! I cannot see why it isn’t possible to have a TOS agreement that works for all parties here,” proposing that it would say “the photographer or whoever created the photos owns the copyright (standard intelectual property law since they created the photos) and the creator of the photos grants a limited use license to the listing agent and the MLS that allows both the agent and the MLS to do whatever they need to do to take care of business. The listing agent would have the photographer sign this page and adds it to the 30 or so other pages of the listing agreement that they file with their broker and the MLS when they take the listing.”

With the attention this matter is receiving, it is possible that the National Association of Realtors (NAR) could get involved, but at a minimum, local real estate associations and MLSs will likely be reviewing the language of their Terms of Service.

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3 Comments

3 Comments

  1. brandonzharris

    May 29, 2012 at 4:52 am

    Want to refinance your mortgage to a new lower interest rate? You should – the money you save could be so significant even with 1 or 2% reducation check 123 Refinance and learn how refinance can affect you.

  2. tinainvirginia

    May 29, 2012 at 10:18 am

    Thanks for bringing this to light.  I just sent it to our photographer to see if we need to amend our agreement.  I always thought we were ok by carefully reading TOS prior to uploading; however, I realize that is NOT the case when we are dealing with multiple MLS’s.  Yuk…..another mess.

  3. MitchellSkinner

    May 29, 2012 at 10:28 pm

    Thanks for bringing attention to this issue. Copyright ownership of listings, including pictures, can be complicated because there are often times several authors. The strict liability nature of a copyright infringement cause of action further complicates the problem (which I’ve written about here https://www.mlstesseract.com/2012/05/getty-images-mlss-and-strict-liability.html). That said, it is possible to sort through these issues with proper agreements that allow each party to make their desired uses of the photos, and retain or assign copyright (depending on the parties’ goals).

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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.

Salt was added to the wound when Move awarded Samuelson’s job to Move veteran, Curt Beardsley, who days after Samuelson left, also defected to Zillow. This too led to a lawsuit, with allegations including breach of contract, violation of corporations code, illegal dumping of stocks, and Move has sought restitution. These charges are extremely serious, but demanded slightly less attention than the ongoing lawsuit against Samuelson.

2. Two major media brands emerge

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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