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The Professional Real Estate Photographer’s Guide to Protecting Copyright

Photographers are becoming increasingly concerned that Multiple Listing Services are overstepping their bounds and claiming ownership of their photographs.  These concerns usually stem from the rules that MLS organizations impose on their members, often called the MLS Rules and Regulations or the MLS Terms of Service.

In this four-part article we will discuss the various Rules we have seen and their application to photographs taken by the professional real estate photographer.  In parts one and two, we will explain how copyright law impacts the intellectual property rights between the MLS and photographer.  In parts three and four, we suggest ways that the professional real estate photographer can protect his or her valuable work product from misuse and infringement. In addition, as a bonus, click here for a Licensing Agreement that you can use to help you ensure that your work is protected and that any agent with whom you are contracting is well aware of the boundaries you are placing on the use of your work product.

What are the Rules for my MLS?

MLS Rules apply to MLS members.  MLS members are real estate agents and brokers.  Unless a professional real estate photographer is also a real estate agent, photographers may have never seen the Rules for their local MLS before.

Since we assume that you are a seasoned real estate photographer with experience in the business, we will skip over our usual explanation of MLS systems and how they work.  However, if the concept of a regionally based privately owned monopoly organization compiling and distributing home listings is new to you, we suggest you read up on MLS systems first before proceeding further.

It is good practice to read and familiarize yourself with the Rules that apply to the MLS where your photographs are being posted.  You may be surprised what you find there.

To help you locate your local MLS rules, we have created an MLS Rules database available on Google Docs that lists many of the MLS systems on the internet and, where we have found them, links to their rules.  To see the spreadsheet, click here.  Our database is still incomplete, so if you can help make it better by providing links to missing MLS Rules, please send us an email to info@artlawjournal.com.

Where we have found MLS Rules on photographs we have quoted the language from the Rules that applies.  Feel free to use this as a quick reference. Our review of these Rules form various MLS have revealed that some MLS claim to own the exclusive rights granted to you, the photographer, by the Copyright Act.  For example, the MLS operated by the Miami Association of Realtors claims that the “MLS shall own the copyright to all photos in the MLS compilation.”

This seems like overreaching, doesn’t it? Copyright Law provides that in order to transfer the ownership of the copyright in your photographs a signed written document (paper or electronic) is necessary. If a photographer is not also a real estate agent, chances are the photographer has never signed any documents with the local MLS.  In fact, other than in the case of the agent/photographer, you may not have had any dealings with your local MLS at all.

If a photographer never signed away his or her copyrights, how can the Miami MLS claim to own the photographer’s pictures?  The answer is they can’t.

To date there has not been a court decision to our knowledge involving a dispute between an MLS and a photographer over copyright ownership.  In fact, we doubt that there will ever be such a dispute because, despite the claims made by some MLS to ownership, photographers and MLS are not naturally adverse to each other.

So how can we be so sure that the Miami MLS is wrong and we are right?  Well, for one thing, it’s right there in the Copyright Act.  Section 204 of the Act says clearly that “[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

The courts interpreting section 204 have held that the owner of the copyright, or their “duly authorized agent,” cannot transfer copyrights orally.  The transfer has to be in writing and it has to be signed in some way, such as with a physical or electronic signature.  These requirements make it almost impossible to transfer ownership by accident.

In Part 2, we’ll discuss  what makes an agent “Duly Authorized” as well as delve into what rights you or your agent can give to an MLS.

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Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.