Attorney Steve® Copyright Law - [Brokers, are you reviewing and approving agent websites]? Agents, are you being careful? Let's talk!!
Feel free to print out this blog and pass it around to your team for discussion. I think this is a very important topic and a legal issue that can be easily avoided with proper awareness, education and due diligence.
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Hello everyone and hope you are all doing well. Attorney Steve® here again, this time discussing something that I THINK YOU ALREADY, but sometimes people take for granted and forget, and when that happens, legal issues can end up on my desk. ALL PHOTOS AND IMAGES ON YOUR REAL ESTATE BROKER AND AGENT WEBSITES NEED TO BE PROPERLY LICENSED or you must have a legal right to use the photo (for example, an image is in the "public domain," (ex photos from the 1800's) or you have “fair use rights” that protects your use of photos, images, audio and/or video clips (ex. commenting on a photo). You should be able to document your compliance. Be very careful about relying on fair use rights - many times the photograper or copyright rights holder will not view it the same way.
Why is this an important issue? Because there are many companies that bring photo infringement claims, allegations, investigations, and yes, many lawsuits have been filed over alleged “photo infringement.”
Top 10 Things to Know
1. Images and photos are copyright protected, whether or not you see the copyright symbol. Do not assume you are free to use a real estate photo just because you don’t see a formal notice of copyright.
2. Just because you find an image on Google, or other website, (even if it says “licensed for reuse”) don’t assume that you can use these photos on your real estate website. Some photographers, in my opinion, are setting “traps” where you search for a “FREE” image of a skyline, or local school, building, or an aerial photo) and you eagerly download and use the photo only to find that there were certain restrictions put on the use of the photo (for example, you cannot use the image commercially), and this can lead to assertions of copyright infringement and a demand for payment from both the broker and the agent. In fact, these can be very attractive lawsuits for the photo lawyers.
3. The best bet is to license your photos from a stock website that has an indemnification guarantee. Brokers, might you want to have a corporate account available to your agents or require them to have their own if they are active in maintaining a blog, website, podcast or video channel? Something to think about and discuss.
4. Copyright infringement damages can be high. On the low end, if a photo or image if copyright registered (with the United States Copyright Office) as are many of the cases I deal with, then a photographer or videographer who holds the copyright can sue for $750 on up to $150,000 if the infringement is willful. In many cases, we see demands to settle at 5-10k or more. Know that every photo, image or other piece of creative content you put on your websites must be carefully selected and cleared for any potential copyright problems. This may seem like a trivial matter, but a retainer and a lawsuit can cost you as much as a commission, so it is important the entire company and all agents are aware of this issue.
5. If you receive a letter from an image rights company (ex. PicRights) or a photo infringement law-firm (ex, Higbee & Associates) it is important not to just ignore the letter or throw it away. Many people get a letter from a company called PicRights and just ignores it. The demand may be small $500 to $3,000. However, if this is ignored, the case can (and often is) elevated to the Higbee or other IP law firm for further handling. When this happens, the damages they are seeking will usually increase. So, if you are an agent, and get a letter, it can be important to let your broker know.
6. It is important to know that a Broker has a duty to supervise licensed activity. Whether or not monitoring an agent website 24/7 is part of that duty is a question to consider. We have seen cases where the real estate agent has used a photo on their website and later, after the issue was not resolved out of court, a federal court lawsuit was filed against both the agent (for DIRECT copyright infringement) and against the Broker for VICARIOUS copyright infringement). The argument is that the broker has a financial interest in the agent, and the right and ability to supervise the agent. This is sometimes all it takes to end up in a lawsuit (which also becomes an unwanted public record). So, everyone needs to be aware of this important issue.
7. In some cases, the broker may want to approve all new posts. Or, they may want to ensure any employment agreements have an “indemnification clause” that way if the agent (or their web-designer) is at fault, the Broker will be defended by the agent. This is another important point for discuss.
8. If you get an infringement or demand letter, it is WISE to NOT pick up the phone and call them, pleading for mercy, or putting things in writing that might come back to haunt you (ex. admitting to infringement of one or more photos or videos). Many of these companies that enforce intellectual property rights do not want to “hear your sob story” so to speak. They are professionals trained to recovery money for their artistic clients. They are also very good at what they do. It may sound self-serving but seek out the advice of copyright counsel BEFORE you engage with the opposing party.
9. If you use (unlicensed photos) and things get uploaded to the MLS, they may seek greater damages arguing: “our precious work is now all over the place.” Again, if your photos are all licensed at the get-go, you won’t have to worry about this.
10. There is a small claims court coming to Washington D.C. (it was made law as inserted into the Covid Relief bill). This, to me, means we will be seeing a lot more COPYRIGHT SMALL CLAIMS CASES that will be filed (except that the claim limit is NOT SO SMALL). An aggrieved photographer may seek up to $30,000. So, this is an important issue that should be discussed at meetings, and a leadership team should be created to ensure copyright is an important issue. There are more cases than you know being pursued and I believe this number will only grow.
Attorney Steve® Tip - A common reaction I get from people facing a copyright photo infringement demand letter is "that page of my website hardly got any hits" (meaning, the photo(s) were not on the header home page. That is not a defense to copyright infringement.
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Steve Vondran is a former real estate broker in both California and Arizona. Our firm is a leader in copyright infringement matters including infringement cases, DMCA takedown letters, fair use defense, and internet law.
Call us at (877) 276-5084 to discuss your case or visit us on the web at VondranLegal.com.
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