BARRISTER'S BRIEFING: Who Has the Photo Rights?

Brian Levine | July 2019

Did you know that you can be fined/sued for photos that appear on your webpage that you never personally posted? Well, you can, but you can also protect yourself… and you should!

Photograph Copyright
A copyright is a legal device that gives the author of a creative work the sole right to publish and sell that work. The author has the right to sell those rights to others if they desire.

In the real estate world, the biggest copyright issue is photographs. Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation. Usually the owner of the “work” is the photographer or his employer, if they have a signed writing that transfers the ownership.

As a real estate agent, you must make sure that you have the rights to the photographs you use in your listings. If you took the photos yourself, you are the creator and have all the rights. If you didn’t, you need to get those rights. Did you hire someone to take the photos? If so, make sure you get a writing giving you the rights to use them for any purpose. Did the homeowner give them to you? Where did he get them from? A homeowner cannot transfer more rights than what he has, so if doesn’t have any rights, he has nothing to give you. Did the photos come off the Internet? Unless the photos are part of the public domain (a discussion for another day), you should not use them, as the images are owned by someone else.

Trolls/Fines

If you’re thinking, “I can get away with using someone else’s photo because they’ll be used for such a short period of time and no one will notice or care,” think again. Companies are now trolling the Internet using image recognition and imbedded identification technology to search for copyrighted photographs. If you’re caught using copyright protected photos you can face serious penalties that range from a couple hundred dollars up to $150,000 per work infringed. Plus, the infringing party may have to pay attorney fees and court costs. In some extreme cases, the infringing party can even go to jail.

Uploaded Photos to the Multiple Listing Service

When you upload a photo onto the Multiple Listing Service (MLS), pursuant to our rules and regulations, you represent and certify that you have the rights to your photographs. Further, you grant those rights to HGMLS to publish those photographs. So, what happens when an agent uploads a photo that they don’t have the rights to and it goes out on the Internet and possibly to your webpage?

Digital Millennium Copyright Act (DMCA)

The Digital Millennium Copyright Act (DMCA) is a federal copyright law that enhances the penalties for copyright infringement occurring on the Internet by online service providers, which broadly interpreted would include the MLS, as well as MLS participants and subscribers hosting an IDX display (an IDX display is the information from our MLS that goes out to other sources). If someone posts a picture on the MLS that they do not have the rights to and it’s found on your website, the copyright holder can fine/sue you, even though you didn’t physically post the picture on the MLS or on the website. However, the law provides exemptions or “safe harbors” from copyright infringement liability. So, how do you protect yourself in one of these “safe harbors”?

Safe Harbor Protection

If you want to protect yourself, you can. If you comply with the provisions of the DMCA safe harbor, you cannot be liable for copyright infringement if a user posts infringing material on your website.

To qualify for this safe harbor, you must:

(1) Designate on your website and register with the Copyright Office an agent to receive takedown requests.

(2) Develop and post a DMCA-compliant website policy that addresses repeat offenders.

(3) Comply with the DMCA takedown procedure. If a copyright owner submits a takedown notice to you, which alleges infringement of its copyright at a certain location, then you must promptly remove allegedly infringing material. The alleged infringer may submit a counter-notice that you must share with the copyright owner. If the copyright owner fails to initiate a copyright lawsuit within 10 days, then you may restore the removed material.

(4) Have no actual knowledge of any complained-of infringing activity.

(5) Not be aware of facts or circumstances from which complained-of infringing activity is apparent.

(6) Not receive a financial benefit attributable to complained-of infringing activity when you are capable of controlling such activity.

Full compliance with these DMCA safe harbor criteria will mitigate your copyright infringement liability. For more information see 17 U.S.C. §512.

Conclusion

It’s pretty clear that you should never post photos that you do not have the rights to. Be certain that you have the rights because these photos will go out to the world. Otherwise, you may be making a very costly mistake. If you have a website that obtains an IDX feed, make sure that you are compliant with the DMCA safe harbor provisions. If you are unsure of your website’s compliance, speak to your broker, your website manager or reach out to an attorney for guidance.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.