On May 16, 2016, the National Association of Realtors (NAR) Board of Directors approved a policy change regarding copyrights and licensing of listing photographs. We wanted to notify you of these changes, although it should not affect you if you have been submitting only photos that you own or have obtained the proper rights and licenses for to the service.
Who Owns Your Property Photos?
For an excellent overview of the issue, please see this article published by Realtor.org in September 2015:
“Improper use of listings photographs… can create legal problems for agents, brokerages and MLSs. Authorship and ownership of photographs within the real estate industry is “fractured”. Who authored the photograph and who can use what photograph and in what way varies across the industry. Listing photographs may be taken by homeowners, real estate agents, MLS or brokerage employees, or professional photographers. Photographs may be owned or licensed to different parties in a variety of ways. A misunderstanding of how you may use the photographs for property listings could make you vulnerable to a copyright lawsuit.”
The full article may be viewed at www.realtor.org/law-and-ethics/who-owns-your-property-photos. Sample agreement forms for participant use in obtaining the proper rights or licenses from photographers are provided.
What Does This Mean for HIS?
The rules of MLS Hawaii, Inc. (dba Hawaii Information Service) already require that its participants assign the rights for or licenses for their listing photos to the service. But the importance of obtaining the proper rights for or licenses for photographs and other content submitted to the service cannot be stressed enough.
If a participant does not own a photo that he/she attaches to a listing submitted to the MLS, he/she must at least obtain the right to license the photo to the MLS for its use. Photographers may not understand that their photos submitted to the MLS will appear in other participants’ websites, and third party sites such as Zillow, Trulia, or the many ListHub partner sites, or in participants’ brochures, CMAs, appraisal or other reports provided to their clients. This could cause the photographers to file copyright infringement claims against the service, its participants or the third party sites that display the MLS data.
In the event that there is any claim of copyright infringement by a photographer or any other third party, the participant who submitted the infringing content to the service is responsible for indemnifying and defending the service from such claim.
What Were the Specific Changes to NAR’s Policy?
The NAR Multiple Listing Issues and Policies Committee recommended changes to the MLS Policy Statement 7.85 – Ownership of Listing and Listing Content. The NAR Board of Directors approved these changes on May 16, 2016, effective immediately. The changes to the policy are shown as follows. (Underscoring indicates additions; strikeouts indicate deletions.)
“The listing broker owns the listing agreement. Prior to submitting a listing to the MLS, the listing broker should own, or have the authority to
cause license all listing content (e.g. photographs, images, graphics, audio and video recordings, and other details or information related to listed property) to be published in the MLS compilation of listing information.
Use of listings and listing information by MLSs for purposes other than the defined purposes of MLS requires participants’ consent. Such consent cannot be required as a condition of obtaining or maintaining MLS participatory rights. MLSs may presume such consent provided that listing brokers are given adequate prior notice of any intended use unrelated to the defined purpose of MLS, and given the opportunity to affirmatively withhold consent for that use.
Participants cannot be required to transfer
any ownership rights (including intellectual property rights) in their listings or listing content to MLS to obtain or maintain participatory rights except that MLSs may require participants to consent to grant the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information to the extent necessary to fulfill the defined purposes of MLS. MLSs may also require participants to warrant that they have the rights in submitted information necessary to grant these rights to MLS. (Adopted 5/05, Amended 5/06) M”
The above revisions to the policy reflect the importance of participants obtaining and transferring the necessary rights or licenses for MLS content provided as part of a listing.
Should there be any questions in regards to these revisions to the NAR policy, please feel free to contact Diana Haraguchi, VP-Administration by email to Diana@HiInfo.com or by phone at 1-800-628-3121, ext.172.