Calling all Realtors: Learn Copyright and Fear Not the Cease and Desist Letter!

by Joel Benjamin Rothman on May. 28, 2015

Intellectual Property 

Summary: Misinformation abounds on the internet. There is nothing new about that. But it is especially true when it comes to copyright law.

Misinformation abounds on the internet.  There is nothing new about that.  But it is especially true when it comes to copyright law.

The real estate industry has gone to great lengths to educate its members on copyright to help them avoid infringement.  The National Association of Realtors has been actively warning agents for years.  NAR counsels its members against violating others copyrights in many different forums.

For example, this article entitled Law & Policy: Do You Understand Online Copyright Law? does a fine job explaining the issues.  How about Online Oversight: Adopting and enforcing clear digital use policies reduces your brokerage’s potential liability?  Maybe you saw a blog post about Google’s algorithm punishing infringers that began “Do you reuse articles or blog posts on your Web site or blogs to generate extra real estate content?”  Or, even more to the point: Is Your Blog Legal? Interconnectivity can breed infringement.

So, with all the attention paid to copyright among real estate professionals, why are we still seeing articles like IDX Copyrighted Photo Trouble?  The blogger/agent claims he settled with Getty Images after receiving an email from an attorney for Getty claiming that the agent displayed an infringing image in his website’s IDX feed, an image he claims was placed in the listing by an unrelated agent.

Someone does an image search and everyone that shows up displaying that copyrighted image gets the “email“. In this case, the Broker was listing a new complex with a pool. There are no pool shots in New England in March (check back in late June) so they grabbed one from the net and published it. (If you are interested, it was someone floating around in a pool on raft)

The original Broker was left untouched, as their website could not be found. I settled for a lesser amount than that shown below. Note if I missed the date, it would have been 5x the indicated amount.

The amount “shown below” was $1,400.

Can this really be true? I have my doubts. There is no question that Getty has been aggressive about pursuing infringers.  However, Getty’s lawyers understand copyright too. They know that your local MLS is a service provider entitled to DMCA safe harbor under Section 512 of the Copyright Act.  As a result, websites that display MLS listings using an IDX feed are also entitled to DMCA safe harbor.

If this blogger was the listing agent, well, that’s a different story.  But if the facts are really as represented then this agent has parted with his money for no good reason.  He should have taken the letter from Getty’s lawyers, gone straight to the MLS that supplied his IDX feed, and advised them to take down the infringing image.  If Getty persisted, the IDX feed user should have demanded to be indemnified by the MLS since the MLS provided the feed with the infringing photo in the first place.

Perhaps asking the local MLS to come to this guy’s rescue is asking too much.  Especially when MLS organizations perpetuate misinformation by publishing ridiculous articles entitled “Take Your Own Photos and Avoid Legal Action.”

The article starts off in a menacing tone describing Getty’s business as “stockpiling images” and then linking out to a law firm that represents Getty in infringement claims.  The article continues by perpetuating fear among agents by claiming that “in many of these current cases, Getty is going after the end user. . . they have sent letters to some agents who offer IDX solutions on their websites, even though the offending image was loaded by another agent whose listings and listing photos are simply sent out to them in IDX data feeds.”

But this is my favorite part:

While copyrights and the laws that surround them can be confusing, it basically comes down to one premise; unless you have received express written permission from the copyright “owner”, you are infringing the copyright. And that sentiment is taken a step further in the Photography and Copyright law:

“…the person who displays the photos or artwork on their own website is the only one liable”.

That quote in italics appears menacing, right?  In fact the whole passage quoted above is scary.  But guess what?  It’s wrong.

Who is this “Photography and Copyright law” being quoted anyway?  I couldn’t figure it out.  I searched the direct quote and could not find this mysterious sage.  Which is all well and good since he or she is sorely mistaken.

Proof, once again, that you should not believe everything you read.  Especially on the internet.

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