Most real estate professionals understand the importance of copyright and proper licensing for photos, and we send out regular reminders to help bring new agents and marketing team members up to speed. But even with safeguards in place, it’s possible to get entangled in a copyright claim.
At the most recent annual meeting of the National Association of REALTORS®, industry leaders emphasized the importance of the Digital Millennium Copyright Act, or DMCA, which is the most commonly cited law in disputes over copyrighted images and other content.
Once you’ve taken steps to ensure you use only your own or licensed photos in listings and marketing materials, there are a few more things you can do to stay on the right side of the law.
What is the DMCA?
The DMCA became law in 1998 and specifically amended Title 17 of the United States Code to address a number of copyright concerns raised by the advent of the Internet.
While the DMCA extended the reach of copyright law and established both civil and criminal penalties for violations, it also carved out “safe harbor” provisions that are important protections for publishers and platforms, from giants like Facebook to small website operators.
The DMCA is most commonly invoked in the music industry: the DMCA was a key tool used to shut down music sharing services like Napster, and YouTube implemented DMCA rules and technology that prevents you from uploading your homemade Rihanna music video.
How does it apply to real estate?
Online marketing is a critical part of real estate, whether it’s via eye-catching property photos, flyers and brochures, agent or broker websites, or Instagram shots and Facebook ads. And since listing photos are often distributed and displayed on a huge network of real estate sites, nearly every MLS member is posting information online.
If you take your own property photos, or hire a professional photographer (with the appropriate licensing terms), you’re in good shape. Expanding to “community photos” or “lifestyle photos” often complicates things… it might be hard for new agents to resist using a photo found online of a beautiful waterfall, or a whale breaching out of the ocean.
However, despite your best efforts, it’s possible to inadvertently get ensnared in a copyright dispute. A third-party designer may have used a photo from a “free stock photo” website that wasn’t actually free, for example. Or, another agent’s waterfall photo could appear on your website without your knowledge through an IDX. Copyright claims are initially targeted at the owner of the website where the infringing image appears, not the person who uploaded it to the MLS.
What can I do to be prepared?
Whether infringement occurs through an IDX, “borrowed” listing photos, or an inexperienced designer, you can take steps to secure “safe harbor” from copyright infringement claims. The DMCA established standard procedures for copyright owners to file claims, and for publishers to respond.
Along with NAR, we recommend three basic steps for real estate professionals, especially those with an online presence:
- Designate an agent with the U.S. Copyright Office – The U.S. Copyright Office provides a very simple form [PDF] to specify a person to receive notices of copyright claims. You can designate yourself or a colleague, providing contact information and a $105 filing fee.
- Adopt a basic DMCA policy and set up a procedure to respond to claims – It’s important to educate your team on copyright and the DMCA, and how to respond to copyright claims (including prompt takedown of the content and notification). This can be included in your office manual or employee handbook. See below for links to examples.
- Post the policy and agent contact information on your website – To make sure that parties who wish to file a copyright claim with you know that you are prepared to respond to them, include your copyright and DMCA policy on your website, either as part of a Terms of Service or a specific page. It should include the name and contact information of your designated agent.
Success is 90 percent preparation, and demonstrating that you are prepared goes a long way in the rare case that a copyright claim comes your way.
Where can I find more information?
This is only an overview of the DMCA for real estate, but fortunately there is a lot of good information available online. Here are some resources that you might find helpful, including examples of DMCA notices:
Hawaii Information Service will also be delivering in-person presentations on the DMCA. You can view the slides from a recent presentation here