SAN FRANCISCO — Let’s say a real estate agent takes a gorgeous photo of an iconic landmark in her town. She puts it on her website and uses it to spruce up her community page.
But months later, she finds that same photo on someone’s website without her permission, and the owner won’t take it down.
Or say an agent takes a photo for a listing that expires, but he later finds that the new agent is using his photo to market the same property.
In each case, the agent owns the copyright to the photo, so he or she can sue — right?
Not so fast. The agents can call an attorney, but they’re unlikely to be able get representation if the photo is not registered with the U.S. Copyright Office, according to panelists at the “Watching Out for Copyright Infringement and Other Legal Traps” session at Inman Connect last Wednesday.
What to do to protect your images
“You have a claim. You’d be more protected if you registered the copyright,” Buck McKinney, an Austin, Texas-based attorney, told conference attendees.
That’s because, if a photo isn’t registered, the most a copyright owner can recover is actual damages resulting from the copyright infringement, which can be difficult to prove in copyright cases.
If a photo is registered, however, the owner can recover statutory damages of between $750 and $150,000 per work infringed, as well as attorney fees.
Uploading and registering photos to the U.S. Copyright Office is “a smart thing to do and it’s a smart thing to get into the practice of. Every one of you is an intellectual property owner,” McKinney said.
It’s “good copyright hygiene” to register your copyrights every three months, attorney Mitch Skinner of Larson Skinner PLLC told attendees.
Group copyrights are also possible, he added.
Skinner has written a book on the subject: “Real Estate Listings and Copyright.”
Another thing to keep in mind is that a website’s use of a photo may not necessarily be copyright infringement, Skinner said.
“It could depend on the rules of the MLS,” he said.
MLSs are allowed to require brokers to grant them the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information, according to the National Association of Realtors’ multiple listing service policy.
On the flip side, don’t take others’ copyrighted works
In order to avoid running afoul of copyright law themselves, agents should make sure their image source is legitimate, panel moderator, attorney and broker Joseph Rand told attendees.
“A Google image search is probably not the best site to get a photo of, for example, a monument,” Skinner said.
“It all boils down to having permission. If you can get it in writing, that’s even better,” he added.
The possibility of being sued goes up if the photo is being used for commercial purposes, McKinney said.
“With commercial use comes attention,” he said.
Agents should never assume they have permission to use a work without asking, McKinney added.
“Begging forgiveness doesn’t always work with a copyrighted work. Trace the ownership of it and chances are you can get a reasonably priced license,” he said.
Skinner added, “If you’re really cheap, you can use Creative Commons.” Creative Commons, a nonprofit, gives copyright owners an easy way to grant copyright permissions to their creative work, often for free.
The session ended with a question regarding privacy: If an agent lists a property and markets it with photos and video and it sells, does the new property owner have the right to ask for those images to be taken down?
“From a copyright perspective, no. But I think there’s a practical business reality” that means the photos should probably be take down, according to Skinner.
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