Using AI to Enhance Listing Photos Can Be Legally Risky

Artificial intelligence now makes it possible for you to send a listing photo, along with commands for whatever image enhancements you want, to an algorithm—and receive the enhanced photo in seconds. This new frontier for real estate technology may open endless possibilities for your marketing efforts, but it also comes with a murky legal landscape. At this point, there are more questions than answers, experts said Saturday at the Emerging Business and Technology Forum during NAR NXT, The REALTOR® Experience in Orlando, Fla.

AI-generated images are strikingly accurate, said Dan Weisman, director of emerging technology at the National Association of REALTORS®. He recently asked a generative AI tool to create a photo of a “transparent glass sculpture of a duck.” Weisman noted that the resulting image showed the duck with a colored background so the viewer could tell it was transparent. Weisman also generated an image of a corgi in a “house of sushi,” which proves that the algorithm understands the nuances of dog breeds and building construction.

DALL·E 2 and Google Imagen are the primary platforms for AI-generated images right now, and the technology is free (for now) to anyone who wants to try it, Weisman said. He added that within real estate, there could be three primary purposes for AI-generated images:

1. Previewing the end result of a renovation project.
2. Modifying listing photos to help buyers envision themselves in a home.
3. Generating stock photos for marketing purposes.

Using these tactics, though, requires you to look back at the REALTOR® Code of Ethics for guidance, said Matthew Troiani, NAR’s director of legal affairs. He pointed out that Article 2 prohibits REALTORS® from exaggerating, concealing or misrepresenting pertinent facts about a property or transaction. Still, there are ways to ethically use generative AI in real estate, Troiani said. A buyer’s agent, for example, could show their clients what a home could look like with alternative features if they’re willing to do some improvement. The could help buyers think creatively at a time when low inventory makes it difficult to be picky.

But, of course, a listing agent shouldn’t put these kinds of altered photos on the MLS without disclosure. Before using photos enhanced by AI, ask yourself whether you’re trying to improve the customer’s experience or pull a fast one, Troiani said. “If you lead with transparency and in your client’s best interest, 99% of the time, you’ll be fine.”

When it comes to who owns the legal rights to AI-generated images, “there are more questions than answers,” Troiani said, noting that U.S. copyright laws “protect original works of authorship fixed in a tangible form of expression.” For now, he said, legal authorship is only extended to humans and not technology. If you’re concerned about infringement, don’t share AI-generated images in a public domain, Troiani added.