Media Contact: Eric Berman - 781-839-5507 - eberman@marealtor.com

Property Photographs and Copyrights

by Robert S. Kutner, Esq. Partner, Casner & Edwards | Mar 04, 2014
Who has the rights to property photos published in the Multiple Listing Service (MLS)? That is an issue that crops up from time to time in the real estate industry. Does a new listing broker have the right to use photographs of a home from an expired listing?
Who has the rights to property photos published in the Multiple Listing Service (MLS)? That is an issue that crops up from time to time in the real estate industry. Does a new listing broker have the right to use photographs of a home from an expired listing?

Some real estate agents mistakenly believe that all photographs of a property belong to the homeowner, and that by listing a home for sale, the homeowner has given permission to the new listing broker to use photos of the home from an expired listing. That is NOT the case!

Ownership = Copyright
Federal copyright law provides that the photographer has an automatic copyright in every photo taken, just as a painter has an automatic copyright to a painting and a sculptor has a copyright to a sculpture. It is not necessary to have a copyright symbol “©” on a photograph for the photographer to have a copyright. Ownership of the object photographed, such as a home, is entirely separate from ownership of the copyrights to a photograph. Federal copyright law describes the nature and extent of copyright protection. It can be found in Title 17 of the U.S. Code. Federal law provides that the rights of the person who has a copyright include the exclusive right to reproduce the copyrighted work and to distribute copies to the public. The rights in a photograph may be licensed or assigned by the owner for use by others.

When a professional photographer takes photographs of a home pursuant to an agreement with a broker, the agreement should identify the photographs to be a “work for hire.” As a “work for hire,” the broker who commissions the photographs is considered to be the owner for purposes of the copyright laws. In turn, when the broker participates in a multiple listing service, the broker licenses the right to publish the photos to the MLS provider according to the terms of the MLS Participant Agreement and the MLS Subscriber Agreement. As part of the MLS agreements, other brokers who are participants in the MLS are granted the right to use the photos for the limited purpose of procuring a buyer. The listing broker authorizes distribution of the photos submitted to the MLS for that purpose.

Example of Violation
In a recent case decided by the United States Court of Appeals for the Fourth Circuit, a federal appellate court considered whether it was proper to enter an injunction barring a non-MLS website from using copyrighted MLS photographs. In Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc. (4th Cir. July 17, 2013), Metropolitan Regional Information System, Inc. (“MRIS”) operated a multiple listing service in the mid-Atlantic area (Maryland, Delaware, Pennsylvania, Virginia and Washington, D.C.). Its participants assigned the right to publish copyrighted photos to MRIS for inclusion in its database. A website operator, American Home Realty Network (“the Network”) obtained MRIS photos that the Network posted on its website, “Neighbor City.com.”

The Network provided leads to real estate professionals, and was compensated if the lead resulted in a sale. The multiple listing service, MRIS, had not granted a license or permission to the Network to post the photos or to use its compilation of property information. When MRIS objected to the Network’s use of its photos, the Network sought to purchase a license, but MRIS declined. MRIS filed suit alleging copyright infringement and other claims arising from use of its photos and property information. The trial court issued an injunction barring use of the MRIS photos. On appeal, the U.S. Court of Appeals for the Fourth Circuit upheld the injunction.

Infringer Subject to Substantial Damages
Injunctive relief is not the only remedy. Violation of a copyright can lead to an award of substantial damages. The copyright owner is entitled to recover actual damages suffered as a result of the infringement, and any profits obtained by the infringer that are attributable to the infringement.

Federal law provides that the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work in a sum of not less than $750 or more than $30,000 as the court considers just. If the court finds that the infringement was committed willfully, the court in its discretion, may increase the award of statutory damages.