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In part 1, we gave you a little background on MLS rules.  In part 2, we’ll look at some confusion surrounding what MLS can really copyright as well as a discussion on the real estate agent and their right to your work.

Is Compilation Copyright the Source of the Confusion?

While the MLS may not own the copyright to your photographs, it does own copyrights.  All MLS systems own the copyright to the MLS compilation that they publish.  A compilation is defined in section 101 of the Copyright Act as a “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”

Many Courts have upheld the right of an MLS to claim copyright in its compilation of data on homes for sale.  This compilation includes the arrangement of photographs of the homes being advertised, along with data about the homes.

The Rules of Regional MLS (RMLS) located in South Florida provide an example.  The RMLS rules say “By act of submission to RMLS of any virtual tours, videos, photograph, sketch or drawing by a Participant or authorized agent, the Participant does grant RMLS all right, title and interest in and to said virtual tours, videos, photograph, drawing or sketch in its copyrightable Compilation, in reports, on comparables and for any other uses as may be determined by RMLS.” By limiting its copyright claim to its compilation, RMLS claims only the rights that flow from the unique way it assembles the photographs and listing data and presents them to the viewer.

Many MLS, not understanding the distinction between compilation copyright and copyright in the underlying work itself, have claimed rights they simply do not have, such as in your photographs.  One MLS recently went so far as to sue an internet site that copied MLS listings for infringement of photographs in the listings, even though the photographers who took the photographs never transferred their copyrights to the MLS.  The court ruled for the MLS, but the court also said that if the dispute was between the MLS and the photographers the result might be different.

Is the Real Estate Agent My Duly Authorized Agent?

Section 204 of the Copyright Act says that in addition to a copyright owner, the owner’s “duly authorized agent” can also transfer copyright ownership.  Does this mean that the real estate agent who you take photographs for is your “duly authorized agent?”  The answer is, probably not.

Most real estate photographers we know provide their photographs to real estate agents under a nonexclusive license.  In fact, whether the photographer uses extensive licensing language written by a lawyer, or no licensing language at all, the likelihood is that in the absence of a written transfer of copyright ownership, all the real estate agent has is a nonexclusive license to use the photographs in connection with the real estate listing for which the photos were taken.

Section 101 of the Copyright Act defines a “transfer of copyright ownership” as “an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

A nonexclusive license is therefore not a transfer of ownership.  That means that in the absence of a signed transfer of copyright between you and your real estate agent client, all that agent has is a nonexclusive license to use the photographs for the purpose they were taken, namely the sale of that agent’s listing.  Once the agent loses the listing, or the property is sold, the license is no longer valid.

What follows from this is that the real estate agent can only transfer those rights he or she possesses in your photographs.  If the agent only receives a nonexclusive license from you, the agent can only give a nonexclusive license to the MLS.  Therefore, unless the MLS separately receives a signed transfer of rights to photographs from you, the original copyright owner, the MLS receiving the photos from the real estate agent has no greater rights to use them than the agent does.

There is one exception.  If you are a photographer working as a bona fide employee of a real estate brokerage, your photographs are works for hire that belong to your employer who is the copyright owner, and not to you the employee. This exception does not apply to most of the photographers we know who operate as independent contractors on a freelance basis.

What Rights Can the Real Estate Agent Give the MLS?

The real estate agent who uses your photos with your permission will be able to give the same authority to MLS as the agent receives from you.  If you allow the agent to distribute your photographs for the purposes of promoting his or her listing, then the agent can pass those rights along to MLS too.  This permits the MLS to copy and distribute your photos or disseminate them through IDX feeds.

We always recommend that agents be required to agree to a clearly worded license agreement in connection with the sale of photographs taken for listings.  A good license agreement prevents problems later and, when problems arise, helps solve them.

In part three of this article we will provide a suggested license agreement you can use with your photographs.  We will also discuss what actions you can take when you discover your photographs being used on MLS and elsewhere in ways that violate your license agreement.

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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.