Real Estate Photographs – Marketing & Infringement of Copyright
Real estate industry is overpopulated with licensed, trained and experienced real estate agents, real estate marketers, multi-listing sites, and who all. These professionals, in that rat race to provide some of the most impactful transactions, are also delivering some of the most complicated transactions, which most of the Americans will encounter in their life time. If it is not so, why do real estate property sellers, buyers and even the real estate agents face major challenges in navigating the purchase/sale of property?
Use of real estate photographs is really impactful, however; the ownership of these photographs is a complicated matter for the entire real estate industry. The news of a lawsuit filed against Zillow by a photography company has been doing rounds and real estate agents are stunned as to how will it affect their own business. Are they safe from a similar lawsuit? Do they need, and if yes; what all permissions are required to use the photos they purchased from a photographer. The issue of real estate image distribution and usage rights has grown so very prominent that “The National Association of Realtors” has even gone to the extent of advising agents not to use any photos for their listings without written permission from their photographer allowing them to use the images for marketing their listing.
It’s time real estate industry takes it sincerely that, rights to own and use photographs come in with multiple complexities, and originate in copyright law. Few months back most of the real estate brokers, and even lawyers as a matter of fact; did not find it important to take a plunge to know “what is infringement of the copyright law”? The entire real estate industry not only survived but also thrived in joyful ignorance of photo copyright issues and to make things worse real estate business is now entirely dependent on internet to market listed real estate properties.
Use of internet, as one of the most preferred tools for real estate professionals, continues to become more prevalent. No need to stress upon the fact that the use of high-quality photographs and videos reduces the length of time it takes to sell a property. At times it might be a costly affair to retain a professional photographer to photograph a property, & it does prove its worth; but not always. For high-end properties, it might be worth a deal for high-end properties, but not be a cost effective idea when it comes to standard listings. Also, it is time consuming a task for, over occupied real estate professional to take high-quality photographs for each of the properties he/she is listing.
If there are real estate property photographs available on the internet or in one of those expired MLS listings; why not simply use those existing photographs – is what should not be done in any case. The reason is that real estate professionals may, unknowingly, be infringing the copyrights of real estate photographs act. Under the federal Copyright Act, there is no intent requirement, and hence; ignorance of the law is not a defense in violation of copyrights.
Most of the realtors list properties in their MLS and while doing so, allow other MLS members as well to advertise the listing through MLS internet data exchange, aka “IDX”, process on those members’ websites. Some of the realtors even go to the extent of advertising the listing across the internet with help of secondary marketing sources. Providing listing information to secondary sources was like a predefined or preconceived fact by broker’s firm or broker’s franchise, under an agreement entered into, years ago. Now comes the moment of truth. These agreements allow the secondary marketer to use the listing real estate property photographs, for any purpose they deem fit, in absolute discretion. Even more remarkable, the agreement often allows the secondary marketer to use the photographs, literally forever. And this is where the problem with photo copyrights typically begins.
Upon utilizing real estate images without permission from the photographer as the copyright holder, real estate professionals are liable for copyright violation. The copyright holder has the rights to recover actual damages suffered or statutory damages under the federal Copyright Act. The Copyright Act has provisions for a wide range of damages starting from $750 per work up to $150,000 per work. See 17 U.S.C. §504. The copyright holder also has the ability to recover attorneys’ fees and costs associated with a copyright infringement lawsuit.
The inception, of copyright infringement by real estate professionals, was Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013). This case, where a competitor real estate listing service used individual images contained in the database without prior permission from the copyright holder. This brought about immense clarity, that how important it was for real estate listing service to appropriately register individual photographs of real estate property, in their listings, as a database.
It was finally concluded that Metro had the ownership interest in the photographs contained in its database and affirmed a preliminary injunction. American Home Realty Network, Inc. (“American”) was prohibited from using Metro’s photographs on American’s website. In a similar case the 9th Circuit Court of Appeals, in Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 683 (9th Cir. 2014), upheld the ruling in Metro case.
Every MLS has their own set of rules when it comes to utilization and ownership of photographs used in the listings. It will not be a costly affair to invest some time to get familiar with the rules and regulations of MLS, which you are a member of. It is advisable to not to use photographs taken from internet to market a property without a written consent or a written agreement with the copyright holder. It is mandatory as oral agreements are not recognized by law. Hiring a professional real estate photographer for capturing the images, and then taking assistance from professional post production experts for image editing and retouching would cost way less. If compared to dollars that are required to be paid as part of the compensation in case of illegal use of real estate photographs for marketing & copyright violation.
The effort here was not to provide lengthy information on copyright violation law. Instead, it was an effort to save real estate professionals from unintended, but no less culpable, use of copyrighted images. Save time and money while managing the forefront of real estate properties, is no valid an excuse, for violating copyright laws.