What Photography Lawsuits Can Teach Listing Brokers About Copyright in the MLS

In 2018, we released a video featuring our CEO, Art Carter, about the risks of using copyrighted media in the MLS. He describes a hypothetical world in which a listing agent uploads a photo to the MLS without obtaining adequate licensing rights, describing the potential compounding damage that could result. It’s a good video and a better warning. Take a look:

Now in 2022, that imagined scenario has become a real cautionary tale. This January, a United States District Court ruled against Zillow and ordered it to pay VHT Studios, a real estate photography company, an estimated $2 million in damages resulting from copyright violations. (If you subscribe to Inman, you can read an article on this ruling here.)

This is a perfect time to remind agents and brokers of the rules CRMLS has in place regarding photos and other media in the MLS.

What are CRMLS’s rules about MLS media?

Brokers must not place media subject to inadequate license agreements into the MLS. Inadequate license agreements include those that contain any limitations on the use of media after marketing of the property stops, those containing any limitation on the MLS’s ability to sub-license the media, and more.

The CRMLS End User License Agreement and the CRMLS rules both contain language to this effect. Here is a relevant section of CRMLS Rule 11.5:

“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.”

If that sounds restrictive to you, you’re right! The license we require for MLS media, by design, exists to cover as many outcomes as possible. We have this language in place because it helps us – and you! – avoid unfortunate situations like this one.

How can I comply with these rules?

We recommend a few simple options to help you avoid making costly errors:

  • Option 1: Find your next photographer or videographer on the CRMLS Photographer List. It’s our list of qualified people and companies who have committed to use agreements that comply with our license requirements for all your CRMLS listing media. As long as you execute the license agreement with all the required signatures, dates, crossed t’s, and dotted i’s, you can enter the media these professionals produce into CRMLS with confidence.
  • Option 2: Use the C.A.R. Property Images Agreement (PIA). This form is available to all C.A.R. members in zipForm. It meets all the licensing standards we have in place. Although you may be tempted to simplify a transaction by signing an agreement without reading it closely, you should know that many standard licensing agreements – including agreements real estate photography studios use! – do not meet MLS standards.
  • Option 3: Have your listing brokerage’s attorney draw up an agreement that complies with CRMLS Rule 11.5. Some brokerages prefer to use their own media licensing agreements. As long as the agreement complies with the requirements CRMLS outlines in its rules, we will accept it.

What’s the bottom line?

  • Make sure you get appropriate licensing rights in place for every piece of media you submit to the MLS. If you don’t own a piece of media like a photo or video, you need a signed form that proves you have the right to use it in all the ways CRMLS requires. If you didn’t take the photo yourself, you probably don’t own it!
  • When in doubt, use the C.A.R. PIA or any other form that meets every current CRMLS requirement. If you use an alternative form, make sure you get it drafted or reviewed by a lawyer first – and make sure that lawyer fully understands the relevant CRMLS rules.
  • In general, avoid using license agreements that you receive from photographers. MLS rules often require more licensing rights than standard photographer agreements provide. In the words of CRMLS Vice President and General Counsel Edward Zorn, “I have never seen an agreement drafted by a photographer that satisfies the rules of the MLS.” (That doesn’t mean photographers never provide these agreements. Things may have changed in the three years since Ed said this. Even so, we recommend against counting on it.)

The Zillow-VHT case is a sobering example of how copyright and licensing agreements can affect your business. Publishing a photo into the MLS disseminates it to over 22,000 IDX sites. In U.S. copyright law, each IDX display could count as a separate publication of that photo. That means that submitting even one photo without a proper license exponentially increases the potential damages you risk in court. If you do not want to follow the rules for your fellow real estate professionals’ sake, do it for your own!

The CRMLS Knowledgebase has even more detailed information about using professional photographs. If you want to know more, we encourage you to read our posts on this topic.

As always, we welcome you to contact CRMLS Compliance with questions during live chat hours, Monday-Friday 8:30AM – 4:00PM, via https://go.crmls.org/compliance/.

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