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.
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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
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.
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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
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.
Steve DeGuzman
May 26, 2012 at 9:42 pm
If you agree to it yes.
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.
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