Using Professional Photographs in the MLS: A Guide
Too often, real estate professionals erroneously assume that they can use any photograph taken by a professional photographer in the multiple listing service. This mistake can lead to very expensive copyright claims. This guide is designed to help you understand the basics of copyright law, and, by extension, how to avoid potential photo copyright violations in the MLS.
The Basics: Ownership, Assignment, License
First, to understand what is required to use a photograph taken by a professional photographer in the MLS requires a basic understanding of copyright law.
The individual that takes the photograph is the copyright owner.
Just like the owner of a home, the copyright owner holds a set of rights to the photograph. Transferring all of the copyright owner’s ownership interest in a photograph requires a written document called an assignment.
A written assignment transfers all the photographer’s ownership rights to the assignee, just like a grant deed transfers all of the rights in a piece of real estate to the grantee.
Most professional photographers do not want to transfer every right they have in a photograph to a client. They instead prefer to transfer only some of the rights, a transfer called a license.
This process is like an owner of a home who is willing to give the right of possession to another person, whom we call a tenant. The homeowner still has all the rest of the set of rights other than the right of possession, which the homeowner gave away.
Licensing: Common Usage
Just like our homeowner, a photographer can also give away only certain rights – and may also place some limitations on those rights.
A photographer can provide a license to display the photograph in the MLS while the property is actively for sale. Once the property is no longer for sale, then the right to display the photograph in the MLS terminates.
Typical limitations on a photographer’s license are generally related to restricting the use only to marketing of the property. Licenses are also often limited to one year. Some photographers further refuse to allow the photograph to be transferred to any other person or company.
Properly understanding exactly what rights the real estate agent has acquired from the photographer is critical. Copyright law, just like real estate law, requires that any transfer of an interest must be in writing. There is no such thing as a verbal approval to use a photograph.
Violating a photographer’s copyrights can be extremely expensive, as copyrights are protected by federal law and there is no requirement to prove actual damages. An agent who violates a photographer’s copyright would be required to pay, at minimum, $750 for every photograph used. (The judge may increase this penalty amount to up to $30,000 per photograph for mistaken or unintentional use, and up to $150,000 per photograph for willful violation of copyright.) That means, with most MLS listings containing well over 40 photographs, even the minimum penalty would result in over $30,000 in payment – plus attorney fees.
Licensing: In the MLS
Every real estate agent and broker has already promised to CRMLS that they are either the owner of the photographs or have the proper licenses to submit the photographs to the MLS.
Language to this effect is contained in the CRMLS End User License Agreement as well as CRMLS Rule 11.5(c), which states: “The submitting Participant and Subscriber grants CRMLS an irrevocable, unrestricted, transferable, perpetual, royalty-free, non-exclusive license (with right to sublicense) to use, store, reproduce, compile, display and distribute the media as part of its compilation.”
CRMLS Vice President and General Counsel Edward Zorn has personally reviewed over two dozen photographer-drafted license agreements. In his words:
“I have never seen an agreement drafted by a photographer that satisfies the rules of the MLS.”
Almost every photographer-drafted agreement limits the use of the photographs taken to “Marketing the Listing.” Unfortunately, this limitation violates the rules that the license be “unrestricted.” Additionally, photographs in the MLS are used for many purposes outside of the marketing of a single property for sale. Real estate agents and appraisers use the photographs in developing comparative market analysis (CMA) reports and appraisals. From evaluating the features in an up-to-date kitchen to pricing the impact of a view, photos of closed properties are critical to the functioning of the MLS.
Still, most photographer-drafted license agreements do not provide for this use. Additionally, some photographer licenses limit the agent’s ability to transfer the photograph. This is extremely problematic. CRMLS sends every listing out to over 22,000 broker IDX websites, as well as to an additional 100+ syndication websites if the listing brokerage firm so authorizes. Having any type of restriction or limitation on transferability within a license agreement means that that photograph is not permitted for placement in the MLS.
As a best practice, all listing agents and their brokers should ensure that they have the proper written license from any photographer. It is best not to sign a license agreement drafted by the photographer, but rather use the C.A.R. Property Images Agreement (PIA) (located in zipForms) or a form created by the listing broker’s attorney.
Using a photographer from the CRMLS Photographer List will also provide an additional layer of protection. Even if you work with a photographer who has signed the CRMLS licensing agreement, the listing agent and broker still need to obtain their own licensing agreement for any uses of those photographs outside the MLS.
The bottom line: Always get the PIA or your own lawyer-drafted form signed prior to ever using any professionally taken photographs.
Remember, these are extremely important issues. Making a mistake on handling the license from a photographer could cost the offending brokerage firm tens of thousands of dollars. There is no need to take such a heavy risk when you as the listing agent and/or broker are paying for the photographer’s services.