By Grant Harpold
Even in today’s market, photography, pictures taken for a listing, are still a critical process in the sale or purchase of a property. The photographs themselves are tangible property of value and belong to someone. The question is: who owns the photographs that were taken of your listing? I would image most REALTORS® don’t know or think that they own them. Why does it matter? If the REALTOR® does not own the photography, then the true owner who has registered the copyright can seek compensation for unauthorized use of the photos, better known as copyright infringement. If found liable for infringement, statutory damages alone can range anywhere from $200 to $150,000 per photo, depending on the conduct of the infringer. Lack of knowledge, a familiar defense in a property defect case, does not defeat liability in an infringement claim. Ask a blogger in Nebraska who got hit with an $8,000 claim for using one not-so-good photograph of Omaha in a post.
There are two ways that photos can expose you to liability. First, if you have no agreement with your photographer giving you ownership or full use of the photos. Second, if on your internet site, you have photos of properties from various sources that are not your listings and that do not have the proper consent from the photograph owner. This might occur when photographs are used after a listing has expired, like for marketing purposes, and the original owner, the photographer, did not authorize their use past the listing period.
What should I do to address this risk? Make sure you have an agreement in writing with your photographer that essentially gives you ownership of the photographs taken of the property and/or gives you a license to use the photographs in any manner you chose. Next, to protect your online services (website, Facebook, etc.) from copyright claims of published photos you do not own, have your webmaster create a link for, or post within your Terms of Use, what is referred to as a “DMCA Notice.” The Digital Millennium Copyright Act (DMCA) provides a “safe harbor” from copyright infringement liability arising from the unauthorized use of photos or other creative works like a trademark. Essentially, a chance for you to receive notice and pull-down photos allegedly violating a copyright without any liability. To take advantage of this protection, certain notice provisions must be a part of your online or internet services. Additionally, you must designate an agent, which can be anyone affiliated with you or your entity, for receiving notice of an alleged copyright infringement. This person must be registered with the U.S. Copyright Office – a very easy process.
If you go to HAR.com and scroll to the bottom of its homepage, you will see “Terms of Use.” Click on it and go to Paragraph 17, “Copyright Notice,” to see the appropriate provision which should be on your site. Also, at copyright.gov/dmca-directory/ you will easily be guided through the process of registering your designated agent. With respect to securing legal rights to your photographs, HAR has a model agreement entitled “Images Creation Master Agreement” for use between you and your photographer affording you legal ownership or use of your photos, which also gets you compliant with MLS Rule 1.2 governing your submission of photographs.
