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Name of Agreement: Agent Independent Contractor: “Work Made for Hire”/Assignment Language
Parties: Listing broker and sales licensee
Purpose: The purpose of the “work made for hire”/assignment language is to have the sales licensee grant to the broker the rights necessary for the broker to use the copyrighted elements. For example, the broker must have rights to list the property in the MLS and allow the MLS to make IDX listings available to other brokers. Without an assignment, the broker’s use of any listing content may constitute infringement, and the broker’s grant of rights to an MLS will be invalid.
Options: The document includes an option for language to assign listing content from an existing broker of a sales licensee to a new broker. When a sales licensee leaves a broker and moves to another broker, the new broker needs an assignment of the listing content, regardless of whether the listing agreement is assigned to the new broker.
Instructions: This document includes language, but is not a standalone agreement. It needs to be attached or incorporated into the independent contractor agreement signed by the listing broker and sales licensee. If attached, the independent contractor agreement should make reference to the attachment and state that the attachment is “incorporated by reference.” If the independent contractor agreement does not define the listing broker as “Broker” and the sales licensee as the “Sales Licensee,” the references in the language to Broker and Sales Licensee should be modified accordingly.
Notes: The last paragraph includes indemnification from the sales licensee to the listing broker, and a note that the sales licensee must obtain assignments from the authors of any copyrighted elements being assigned to the listing broker by the sales licensee. As indicated above, any use of a copyrighted work without a license may constitute infringement. When a broker or MLS assigns or licenses rights in a copyrighted work, the transferee will likely require a representation and warranty from the broker or MLS that the copyrighted work is an original work of the broker or MLS, or the broker or MLS has otherwise obtained all of the rights necessary to grant the assignment or license. In order for the broker or MLS to make that representation, he/she or it needs to assure the chain of ownership or licensing is complete. The assignment made in this document creates a link in the chain, but if the sales licensee is assigning rights in copyrighted works that were created by others, such as photographers who created photographs, the sales licensee needs to obtain an assignment from such persons.