So, in other news
A friend of mine is being sued by a real estate photographer for copyright infringement. Let me say that as a creative myself, I fully believe in the protection of the rights of artists and photographers. Having said that, I do have some problems with the case being brought against my friend.
My friend is a full time licensed Realtor here in Florida. If you have ever bought a home, you know that prospective buyers will often begin the home buying process by going online and looking at listing information and pictures until their eyes go crossed. All the pertinent information about nearly every listing is now available at numerous Broker operated websites.
Whenever a Realtor gets a new listing, they upload information about the home and a collection of listing photos into the local MLS or Multiple Listing Service. That which then distributes the information to any website that is connected to the MLS system by a service called an IDX. Today, listing pictures for just about any available property in town can be viewed online at any one of dozens of Realtor operated websites that are connected to the MLS database by an IDX provider. IDX providers also provide all sorts of little widgets that allow your user to search and display the listing information automatically in a variety of ways on a site simply by placing the desired widget in the desired location on the site.
So what does all this have to do with copyright infringement?
Well, my friend used to operate one of these many websites that allows you to search for any kind of property you want. The site was connected to the MLS database by an IDX service just like the dozens of other websites in her market area. One day, a real estate photographer happened to see some of his pictures displayed on my friend’s site and filed a lawsuit against her alleging that she was displaying the pictures without his permission. He demanded that she take the pictures down and pay him a ton of money for using the pictures without permission.
My friend’s website had already been offline for some time before the lawsuit was filed so that part was not an issue, but did he have a point about violating his copyrights and showing the listing pictures illegally? I did a bit of looking around and I found that you can view the exact same pictures on many of the sites that are connected to the MLS as my friend’s site was. Are they all violating the law by showing this man’s listing pictures?
Is she liable? I don’t think so and here is why.
There are probably millions of listing pictures in the MLS database at any time, including pictures of homes listed years ago. The MLS system makes these pictures available to the IDX vendor who then pipes them out to be displayed by thousands of Realtor websites without any way for the site owner to know about or prevent copyright issues. It turns out that the reason why MLS and IDX can do this without setting their users up for a fall. Turns out they have the authorization they need to use these photos. It is granted to them in a clause in the terms of the conditions that the MLS member agrees to be bound by.
The clause says any member who uploads a photo into the MLS system warrants that they possess sufficient rights and have the ability to grant the rights to the MLS system and its partners, to use all listing photos in all the ways the system is set up to use the photos.
Here is the text of the clause
By the act of submission of any property listing content to the MLS, the participant represents and warrants that he or she is fully has been authorized to license the property listing content as contemplated by and in compliance with this section and these rules and regulations, and also thereby does grant to the MLS license authority for the MLS to include the property listing content in its copyrighted MLS compilation, and also in any statistical report on comparables. Listing content includes, but is not limited to, photographs, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to the listed property.
Each participant who submits listing content to the MLS agrees to defend and hold the MLS and every other participant harmless from and against any liability or claim arising from any inaccuracy of the submitted listing content or any inadequacy of ownership, license, or title to the submitted listing content.
The way I read this, the Realtor who uploaded the subject listing photos to the MLS system is