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Brokers and sales associates are vulnerable to becoming the target of copyright infringement claims, but there are steps you can take to reduce your chances of receiving a demand letter from the copyright holder, an attorney told the NAR Risk Management Issues Committee.
First, make sure you own or have a license to use any listing or other photos you use in connection with a listing or that appear on your website. If you contract with a photographer, make sure you have a written agreement that either gives you ownership of the photos or a broad license to use the photos, which includes use beyond just an active listing.
That’s because the photos might appear on an IDX feed or virtual office website, or be pushed to listing aggregators like realtor.com®. Listing photos are also often times used beyond just the life of an active listing. For example, photos might be used in determining comps or for property appraisals. “You need to be able to use the photo for more than just to market and sell the property,” said Mitch Skinner, an attorney with Larson Skinner PLLC in Minneapolis.
Skinner pointed members to the sample photography agreements available on nar.realtor. NAR members can use these agreements as a great starting point, he said, and work with their own counsel to customize the agreements to ensure that they secure appropriate ownership or license in the copyrighted work.
He also pointed the audience to Creative Commons, which makes photos available for use under Creative Common licensing, provided the user complies with attribution and other terms of the license. These photos can come in handy when an agent needs a photo of a nearby landmark for one of their listings. You can go to Creativecommons.com to find out more. You can also filter your searches on Google and at YouTube to bring up Creative Commons-licensed content.
Finally, Skinner informed the audience about The Digital Millennium Copyright Act, passed in 1998, which offers a safe harbor that protects MLSs, listing aggregators, and other web service providers from copyright infringement claims related to content placed on the website by third parties. The safe harbor includes a requirement that a copyright agent be designated and registered with the U.S. Copyright Office. In addition, and among the safe harbor’s other requirements, the website service provider must post the copyright agent’s contact information, and have a takedown procedure for when it is notified that infringing material is on its site. More on nar.realtor.