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The discussion of copyright issues in the real estate industry usually centers on listing photographs. But the use of any third-party materials without proper permission can make a REALTOR® association the target of a copyright infringement lawsuit. Adopt risk management strategies that can help you avoid costly mistakes.

What Is a Copyright?

Copyright law protects original works of authorship fixed in a tangible form of expression, including photographs, music, and art, as well as news articles and broadcasts. Copyright does not protect ideas or works that aren’t original, such as facts, names, and short phrases.

The copyright owner owns an exclusive bundle of rights: the rights to reproduce, distribute copies, perform, display, and prepare derivative works. A derivative work is a transformation of the original, like a translation of a book from one language to another.

Using a work without proper permission infringes upon the owner’s copyright. Remedies for copyright infringement include destruction of the infringing materials, injunctive relief, actual or statutory damages, and attorneys’ fees. Statutory damages can be as high as $150,000 for willful infringement, which is when the infringer either knew the use was infringing or recklessly disregarded the possibility. Citations or disclaimers do not “cure” an infringement.

Mitigate Your Risks

So, how do you ensure that you have the proper rights before using third-party works? You get permission in writing. If you can’t determine whether a work is copyrighted or who its owner is, don’t use it.

It’s critical to document permission in a license agreement and to make sure your use complies with the terms of that agreement. Even with a license agreement, the use of a work outside the scope of the agreement would constitute infringement.

Finally, make sure you save copies of your license agreements. If your use of the material is ever challenged, you will be able to prove you had permission.

Additional Issues for Music

There are generally two types of licenses needed to use music in connection with your business: a performing rights license and a synchronization (“synch”) license.

Playing music, live or recorded, at your next awards dinner or open house? You’ll need a performing rights license, which allows you to perform music at events. BMI and ASCAP are two organizations that offer performing rights licenses for a large selection of popular music. If you host virtual events, make sure your performing rights license permits the use of music virtually.

Are you incorporating music into a virtual tour or marketing video? Then you need a synchronization license, also known as a “synch license.” This type of license is required even for a video of an event where music was played pursuant to a performing rights license. ASCAP and BMI licenses do not include synchronization rights, so you will need to obtain a separate license.

Maintain copies of music licenses. Music owners may use software to find uses of their music in online videos. The music owners then send cease-and- desist letters, placing the burden on the video’s owner to prove it secured permission to use the music. A copy of the license agreement will easily dismiss these claims. Without a copy of the agreement, the video owner could be forced to pay a settlement fee for using the music or face litigation.

Don’t Assume Fair Use

You might have heard the term “fair use” and wondered if that excuses your unauthorized use of copyrighted materials. Fair use is actually a very narrow defense to copyright infringement, and you shouldn’t assume it will apply without proper legal advice.

Courts have broad discretion in finding fair use, which makes it difficult to predict the outcome of a fair use defense. Recognized fair uses include a person recording a TV show for home viewing, a critic quoting song lyrics in a review, and a teacher making copies of a book chapter for use in the classroom.

Diligently ensuring you obtain the necessary permissions for the use of third-party materials will help you avoid copyright infringement claims down the road. Check out nar.realtor/copyright for additional information on copyright issues in the real estate industry.