Real estate photographers contend with many perils… weather, lighting, rabid dogs… but perhaps nothing more frustrating than realtors committing copyright infringement. Here at CopyCat Legal, we frequently represent photographers whose work is being used without permission by realtors across the country – whether in MLS listings, on their social media, or otherwise. The issue is so prevalent and so common that you’d be tempted to think that realtors must simply not know any better… right? Well, you’d be wrong. Among all business types (lawyers included), realtors are in a class of their own with the abundance of educational materials out there telling them not to commit copyright infringement. So why do they continue to do so? Let’s find out.
How Do Realtors Commit Copyright Infringement?
Realtors commit copyright infringement in a multitude of ways, though most frequently they do so by using photographs within the local Multiple Listing Service (MLS)… whether for the property they’ve been hired to sell/rent or from some other listing. For example, an aerial photograph of the outside of a condominium building may have been licensed by a realtor to sell Unit 123. In the next few years, another 10 units in the building go up for sale. Those realtors may scour the local MLS or Google for exterior photographs of the condo to include in their listing and choose to use our (originally) paid for photo. Voila… infringement.
Generally speaking, if a realtor hasn’t paid for or received permission for the photos being used in his/her listing, social media, website, etc., copyright infringement is most likely occurring. But even realtors who properly license photos can commit infringement if they exceed or violate the scope of that license. Using the photos for a different property or allowing another realtor to use them for his/her listing could constitute infringement if the photographer’s license restricts use to the property at issue or prohibits transfer of the photos to third parties.
Why Do Realtors Commit Copyright Infringement?
Time to brush off my psychology degree to answer this question. Wait… I don’t have a psychology degree? Ok, I guess a law degree and a healthy dose of cynicism will have to suffice. Realtors commit copyright infringement because it’s convenient and because people are inherently lazy (not pulling any punches today). Hiring a real estate photographer costs money and takes time… stealing a photo from the internet and/or the MLS is both instantaneous and free (unless and until you’re caught). Real estate is a fast-moving world, and it’s much easier to get that listing up today than wait for a photographer to come over, spend a day working at the house/building, and then spend even more time editing photos/videos in Lightroom, Photoshop, etc. All it takes is a few seconds on Google and a realtor has hundreds of photos at his/her proverbial fingertips… with the added bonus that no money had to be spent.
But isn’t it equally as likely that realtors simply don’t know that using photos without or beyond permission is copyright infringement? Given that almost every lawsuit we file for copyright infringement garners an ‘innocent infringer’ defense (i.e., XYZ infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright), maybe it’s not their fault at all but rather a lack of education on the subject? Nope.
What Educational Materials on Copyright Infringement are Available to Realtors?
Realtors cannot credibly argue that they are unaware of copyright or that using photos without permission constitutes infringement as there are a staggering number of educational materials on the subject. Most, if not all realtors in the USA are members of the National Association of Realtors, the largest trade association in the USA for real estate professionals. The National Association of Realtors has an entire page on copyright, including dozens of articles and videos warning realtors not to commit infringement and providing best practices on licensing photos. The National Association makes it clear enough:
Creative works are protected by copyright. Don’t use another person’s copyrighted photograph, painting, music or words without permission because doing so could result in liability for copyright infringement.
Most states likewise have their own trade associations for realtors and, as expected, their own educational materials and warnings against copyright infringement. Here are just a few examples of state or local associations warning realtors from committing infringement:
California (only available to member realtors)
Keep in mind that doesn’t include the countless number of blogs and other internet content mirroring the same message: hey realtors, stop committing copyright infringement… because there are consequences for doing so when you’re caught in the act.
How Can CopyCat Legal Help?
In a perfect world, realtors would get the message, stop infringing, and start paying for the use of photos in their MLS listings and elsewhere. If this article stops even a handful of realtors from infringing, I’ll take it as a win. But we also don’t live in a perfect world and, as demonstrated above, realtors keep infringing notwithstanding a tremendous amount of resources telling them otherwise. If you’re a real estate photographer and you’re fed up with realtors trampling on your rights and feigning ignorance of the rules, we may be able to assist with pursuing an infringement claim against realtors, brokers, etc. You put in a tremendous amount of hard work, effort, and hours… and you deserve the type of justice that CopyCat Legal can deliver. Give us a call. Vent a little. We’re here to help.
Disclaimer: The information contained on this blog post is provided for informational purposes only and should not be construed as legal advice on any subject matter.