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    Take Your Own Photos and Avoid Legal Action

    You may have heard that recently, Getty Images, a stock photo agency, sent out a demand letter for payment and filed a lawsuit against an agent in Wichita, Kansas who displayed copyrighted photos on the agent's website.


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    Getty’s business is stockpiling images for license and representing all of the photographers who create those images to get royalties for their use. Just as TREND works hard to protect copyright in our MLS database, Getty is entitled to enforce its copyright interests against infringers.

    Unfortunately, in many of these current cases, Getty is going after the end user, not necessarily the person responsible for adding the infringing images to the MLS. For example, 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.


    What does this mean to me?

    Right about now, you’re probably saying to yourself “I can’t control what images other real estate agents use. How is this my problem?”

    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”.


    This puts any real estate professional with an IDX website in a precarious position. You obviously don’t know what listings appearing on your site are using lawful images, and you certainly don’t have the time to contact every single agent and ask them if their images are their own. So what can you do to help protect yourself?

    First, it’s important to remember that TREND works very hard to protect you from these types of situations. Every member is required to acknowledge that they have the right to use images every time they add images to the MLS and upon accepting the Terms of Use. The Terms of Use also require TREND participants and subscribers to indemnify all other participants and subscribers against damages for the use of property listing content (IDX or any other permitted use) they have provided to TREND. We also take complaints of unauthorized use of images very seriously and remove scraped images as soon as we are alerted of them. But ultimately it is the responsibility of each individual member of TREND’s community to follow the best practices below in order to protect the entire community from these type of problems.


    Implement these best practices

    While there is no foolproof, 100% safe way to protect yourself, there are some things you can do to make sure you’re in compliance and not putting other real estate agents at risk.
    1. DO take your own listing photos: This is the best way to make sure the images you use for your listings are fully compliant. If you’re not sure how to best take photos, we’ve got two great articles to help guide you; Photo Editing: 5 Simple Tips to Improve Your Listing Photos and Get the Picture!
    2. Assignment of Copyright Form
      Assign the entire right, title and interest of the image.

      Limited Copyright License Form
      Assign limited rights to the image.
    3. DO get a license or assignment to use someone else’s photos: Some people just have a knack for taking great pictures. If you must use someone else’s photos, make sure to secure a license or assignment for using them. TREND provides Copyright Materials Forms for your convenience. They include the rights to allow publication on the MLS and syndication to other sites that promote the sale of the property. TREND does not require this form when you upload photos into the MLS; however, you should keep a copy in your files for a minimum of 3 years. If your use of a copyrighted photo is called into question, you may need to provide proof to TREND or others that you have secured proper permissions to use the photo.
    4. DO NOT right click and save: We’ve all done it. We see an image on the Internet, we think it’s great, so we right click and save it to our desktop. (This is also called “scraping.”) Because it was on the Internet, we think its fair game to use anywhere. Without the written consent of the owner of that photo, the copyright holder, using that image constitutes copyright infringement and may subject you to substantial financial liability.
    5. DO pay it forward: Share this information and educate your fellow real estate professionals so that none of you end up on the wrong end of a demand letter.

    What if I get one of these letters from Getty?

    Being hit with a letter demanding large sums of money can be unnerving to say the least, especially if you’re not sure what you did wrong. If you happen to receive one of these letters, it’s best to consult with a lawyer to see what your next steps should be.

    In the end, the best thing to do, not just for yourself, but for the TREND community as a whole, is to grab your camera, get into the property and take those photos yourself.


    Jeff Demarco • Content Coordinator

    Jeff joined TREND in 2008 as a technical writer / content coordinator and continues in that role today. He spends his time at TREND working to improve the online help system, as well as writing stories and producing videos. Learn more about our editorial contributors...


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    7 Comments
    1 - 7 of 7 Comments
    1
    TREND MLS
    3/12/2013 5:56 PM

    Update: 3/12/13

    We have updated TREND’s Terms of Use to require TREND participants and subscribers to indemnify all other participants and subscribers against damages arising from the use of property listing content (IDX or any other permitted use) they have provided to TREND. This will provide a degree of protection to TREND members who have an IDX website.

    Michael Murphy
    3/11/2013 11:11 AM

    How do we protect ourselves if we use a "virtual tour company" to take photos for us?

    Kim C. Esposito
    3/2/2013 8:58 AM

    great advice and soemthing I have always thought about. Thank you.

    TREND MLS
    3/1/2013 4:17 PM

    Steve,

    Thank you for your comment. The purpose of the story was not to offer a solution to the Getty Images scenario, but to make everyone aware of the situation and to encourage the use of best practices to avoid similar problems in the future. Having said that, we are already in the process of implementing changes to our Terms of Use and our Rules and Regulations that will protect you and our other members in instances such as this.

    Emily Schaffer

    Steve Larrimore
    3/1/2013 1:38 PM

    None of these solutions would seem to impact the problems that are laid out; namely some other agent illegally uses copyrighted photos in their listing and the idx user gets sued. The solutions listed would not protect innocent agents from the crooked ones.
    The cure for this would be a change to the Trend terms of use stating that the agent and their company indemnify all IDX subscribers.
    If that is not the case it should be done by the end of business today.
    It would also encourage management of the Brokerages to properly supervise their agents but they are more likely to just make them indemnify their companies. I wonder if this falls under E&O insurance.

    TREND MLS
    2/21/2013 8:26 AM

    Richard,

    Thank you for pointing out the broken links. They have been fixed and will now direct you to the correct forms. The forms are also available in our Online Support Center under Help Topic number 1983.

    Emily Schaffer

    Richard Strahm
    2/20/2013 4:01 PM

    Your PDF links in this article sidebar are broken.

    1 - 7 of 7 Comments
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