How do you protect yourself and your business to ensure that you’re not violating someone’s copyright? First, audit your website and identify all the images you’re displaying. Where did they come from, and how do you know you have permission to use them? If you cannot confidently answer these questions, remove them until you receive confirmation of permission.
What if you already have a demand letter stating that you’re violating someone’s copyright? Consider consulting an attorney and double-check the image in question. Remove the image and find out if it is owned by the company demanding payment. Then make a business decision and see if you can negotiate a lower fine. Do not ignore such a letter; usually the amount demanded will increase over time.
Cease and desist
Dozens of Realtors® have received demand letters from photo licensing companies, citing their illegal use of an image on their website or in their listing on the MLS.
Agents frequently did not know they were doing anything wrong. Copyright law is not kind, however, and ignorance of the law is no excuse. Violating the law may carry hefty statutory and civil penalties. Claiming that your website was developed by a third-party vendor who selected photos is also no excuse. If you own the website, you’re liable for the violation. Your website developer may share culpability, but regardless of who selected your site’s images, you may be liable. The same can be said for listing photos in the MLS. The listing agent and listing broker are responsible and thus liable for the photos on their listings.
Photo License Agreement
A license is a contract in which the photographer retains the ownership of their work and grants specific rights to the client to use the image(s). Restrictions include: photo usage, duration, exclusive or non-exclusive contractual agreements. If you license photos from a photographer make sure to thoroughly go over the licensing agreement. These licensing agreements contain restrictions on the usage of the photos and the duration. In other words, what type of advertising can you include them in and how long are you permitted to use them? Sometimes it’s for the length of the listing agreement but could be used for all marketing purposes. Also, watch out for the exclusivity. Are the photos available for unlimited usage or does the agreement specify limited usage? Lastly, will they license these same photos to other agents?
Broker website images
What if a copyrighted image is on your website? You didn’t put it there – how can you be liable?
There is a process you can institute to protect yourself from copyright infringements within your website – a “safe harbor provision” under the Digital Millennium Copyright Act (DMCA). This safe harbor provides that you, as the “service provider and/or website provider,” can take five steps to protect yourself if republishing images.
Your website should clearly state what someone who suspects a copyright violation should do. Here is the language that the National Association of Realtors® (NAR) uses (NAR says you’re free to update it with your specific information and use it on your site):
If you believe that your intellectual property rights have been violated by [brokerage name] or by a third party who has uploaded Content on our Site, please provide the following information to the [brokerage name]-designated copyright agent listed below:
A description of the copyrighted work or other intellectual property that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Site;
An address, a telephone number, and an e-mail address where [brokerage name] can contact you and, if different, an email address where the alleged infringing party, if not [brokerage name], can contact you;
A statement that you have a good-faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf;
Your electronic or physical signature.
Make sure you register with a designated copyright agent at the Copyright Office. To register, click here.
[Brokerage name] may request additional information before removing any infringing material. [Brokerage name] may provide the alleged infringing party with your email address so that that person can respond to your allegations.
[Brokerage name] has registered a designated agent with the Copyright Office pursuant to 17 U.S.C. 512(c). If you believe your copyright material is being used on this Site without permission, please notify the designated agent at:
[Brokerage’s Designated Agent name, address and contact information].