Here are some things you need to know about copyright law and your real estate business.
Let’s start with the scary stuff. Penalties for copyright infringement in a court case can be as high as $150,000 plus attorney fees and court costs and in the case of willful infringement possible jail time. Although it is unlikely that your Real Estate business will face the maximum penalties or even be taken to court, you should be aware of copyright law and how to avoid possible infringement.
What’s covered by copyright law:
U.S. Copyright Office Definition is as follows:
“A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.”
At the moment of creation, any creative works, as listed above, are automatically covered by copyright. The moment you take that sunset photo on your smartphone, you own the legal copyright to that image. If someone else uses or copies that image they are infringing on your copyright. What happens next is up to you as the copyright holder.
- You can do nothing and be happy someone liked the photo well enough to use it.
- You can order them to cease and desist in the use.
- If you registered and were granted copyright by the U.S. Copyright office, you can sue for damages.
A copyright lawsuit can only award damages if the copyright holder has registered the work with the U.S. Copyright Office. If the work is not registered, the courts can only provide cease and desist orders.
You may have heard the term “Fair Use” to avoid copyright infringement. This is a narrow and limited defense against copyright infringement. Generally fair use is using copywritten material for transformative purposes such as: to comment on, criticize or used as a parody. That’s how Saturday Night Live can use Parody to keep from infringing on copywrite.
The courts use four factors to determine fair use.
- Purpose and Character of the Use. Using copywritten material in the classroom or for educational material is considered fair use. Use in the commercial market is not.
- Nature of the copywritten work. Using a portion of factual work, such as a biography or data is more likely to be considered fair use.
- Amount of work used. The less you use of a copywritten work the more likely it will be considered fair use unless you use the most memorable or most poignant part of the work.
- Potential market for the work. To what extent the use has financially deprived the copywrite holder or devalued the original work or harmed future markets.
For the Real Estate industry, the most likely areas of copyright infringement are your marketing materials, listing photographs or use of the data on your Multiple Listing Service (MLS.)
When you are creating your marketing materials, you’ll want to verify that any third-party images, quotes, sayings and other potentially copywritten material is either; Works in the Public Domain or you have written permission from the copyright owner.
Works in the Public Domain:
A copyright is issued at the time of creation to death+70 years. Any works published or created prior to January 1, 1924, are now in the public domain. However, this doesn’t include compilation of works in the public domain that have be recompiled into new copyrightable works. An example of this would be a book containing images from 1900-1923. The images are no longer subject to copyright but the book compiling those images is a new copywritten body of work.
You can obtain stock photography, music, quotes and saying from sites such as ShutterStock, AdobeStock, Canva and many more. These are good resources as most of this content comes with a Royalty-Free agreement.
Royalty-Free and Copyright licensing are not the same thing.
Royalty-Free grants you the right to use and reproduce the work without additional fees and limited restrictions.
Licensing is an agreement between you and the copyright holder that specifies how the media may be reproduced, for how long and how many times.
Whether you are getting your content from a Stock provider or Licensing content you should review the licensing agreement carefully to avoid infringement. Royalty-Free content still has limitations, and you should know what they are.
Unless there is an agreement in place the photographer holds the copyright to any photographs they take. This makes it important to specify under what conditions the photographer is being hired and/or how the copyright will be held or transferred.
Work for Hire: As a real estate professional this is your best option when hiring a photographer. Work for Hire automatically transfers copyright ownership from the person hired to the hiring party. Think Nike®. Nike® employees are employed on a work for hire basis. Therefor anything they create while employed with Nike®, becomes owned by Nike®.
Assignment Agreement: This is an agreement between you and the photographer and should be in writing. The photographer still owns the copyright to the images but is granting you rights to use those photographs as specified in the agreement.
- Exclusive rights to use. This gives you an exclusive right to use the photographs in the manner outlined in the agreement. In this case the photographer cannot sell or give permission to any third-parties to use those photos.
- Non-exclusive right to use. A non-exclusive right to use the photographs doesn’t have to be in writing, but it’s better for you if it is. With non-exclusive rights the photographer may use, sell or otherwise distribute the photographs as the copyright owner.
Licensing: You sign a licensing agreement with the photographer to use and reproduce the images. A licensing agreement usually specifies the types of media the photography may be used in, the number of times an image can be reproduced and for how long the image may be used.
Multiple Listing Service:
In August of 2017 the copyright office quit granting copyright protection to Multiple Listing Services based on the need for further clarification. The NAR and the Copyright office worked together to continue to afford Multiple Listing Services copyright protection based on the premise of copyright protection for compilations. This meant the Multiple Listing Services needed to show sufficient creativity in three areas.
- Selection: How the facts are chosen for inclusion.
- Coordination: The order in which the facts are place
- Arrangement: The arrangement of the facts in the overall database.
A compilation copyright only protects the Selection, Coordination and Arrangement of the data in the database. The data itself is not subject to copyright, UNLESS, the database owner also owns the copyright for the data.
Bottom Line: If your MLS receives ownership of the photos, text descriptions and other listing information you provide, they own the copyright for that data.
Have you looked at your MLS’s policy on who owns the copyright once you upload your listing?
Your MLS assumes you have read their Policies and Procedures, Rules and Regulations cover to cover and committed it all to memory. I’m betting you haven’t. Here are a few excerpts on copyright from Multiple Listing Services. I encourage you to read the entire policy from your own MLS service.
“…Members shall not use photographs or other images or virtual media, Public Remarks, appraisal reports, or other intellectual property (collectively, “Media”) from another listing without the prior written permission of the previous Listing Broker or other party that has the legal right to reproduce and display the Media…” – BAREIS MLS 4.4 Intellectual Property Rights
“…submitting photographs or other images or virtual media (“Media”) to the MLS, Participants and subscribers represent that they have be authorized to grand, and do thereby grant to MetroList, an irrevocable, perpetual, royalty-free license (with right to sublicense) to use, copy and publish such Media…” – MetroList Services, Inc. MLS Rules Effective Date August 2, 2021
“…All property images submitted to and processed by RSC are the property of RSC. All textual content entered into and compiled in and by RSC are the sole property of RSC…”- PIKES PEAK REALTOR® SERICES CORP. Rules and Regulations of the Section 11.2. RIGHT, INTEREST, TITTLE.
Copyright may not be a fun topic, but it is one everyone should be familiar with. In the digital age when so much content seems to be freely given, you should know what you can and can’t use in your business.
This article is meant for informational purposes only. No warranties of the accuracy of the information is given or implied. If you have questions regarding copyright law, you should consult an attorney.
—Jennifer Davis, Account Manager, Staats Solutions
NAR Realtor – Window to the law: How to Avoid Copyright Infringement https://www.nar.realtor/copyright
NAR Realtor – Copyright and the MLS Database https://www.nar.realtor/copyright
NAR Realtor – Window to the Law: Copyright Best Practices for Listing Photos https://www.nar.realtor/copyright
Perdue University: https://www.lib.purdue.edu/uco/CopyrightBasics/penalties.html
Stanford University, Rich Smith, Welcome to the Public Domain: https://fairuse.stanford.edu/overview/public-domain/welcome/
Stanford University, Rich Smith, What is Fair Use? https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
U.S Copyright Office, https://www.copyright.gov
BAREIS MLS – Ownership of MLS Database and Copyrights
MetroList Services, Inc.
Pikes Peak Realtor Services Corp.