If you provide content to anyone for the web including your local Realtor, beware of the issues. The headline could read, Homeowners and Content Providers Beware. Infringement and liability go hand in hand in many of these and guess who is left holding the bag?
One of the most misunderstood and yet one of the most important pieces of information on the internet and on paper documents involved with user content is the terms of service. We all see them, most of us ignore them. Even examiner.com, Studio 1 Magazine and Studio 1, Inc which is a non-profit have them.
First thing first, companies and websites need broad terms of use or terms of service depending on how they want to write it. Without them the ability to provide content all around the world would be almost impossible. The trick is to balance it with the rights of the users.
The scenario has been gone through in the other articles but here is a short summary. I took photos of a house in Colorado for a FSBO website listing. The photos were also sent to a real estate listing agent at a later date. About a year or so later I told the agent to remove the photos as I was not involved anymore. There was no written agreement to govern the relationship between all the parties involved concerning the pictures. My copyrighted photos so they come down without question. Follow the bouncing ball through the paperwork trail to the TOSs and see where the people stand.
Failed attempts:
Months after the first email to take down the photos I found out that not all the photos had been removed. This is and was an infringement of copyrighted photos. I sent a notice to remove the rest and it was done supposedly. Months later I found all of them on another website. Needless to say I was a little upset. Those were taken down after another email. This was getting old. So I decided to find out who was responsible for my images being infringed. So I decided to check with the different sites and check the terms of services for things like user content, privacy and warrants of liability. Simple tasks since they all put them online. Then the sad truth started to raise its head. As of today, a full set of my photos are still advertising this house in Colorado. The infringement is getting willful and very expensive.
I went to Zillow and Neighborhood City and a couple of others. The terms of services state that the person who posts to their sites represents and warrant they are the copyright holder or have permission to give away the rights or a license to the site. It is the listing agent or broker who posts to the sites. The ultimate responsibility in the real estate chain is the broker. All the others are protected by their TOSs and the broker who agrees to hold them harmless. Means the broker is responsible for everything if something goes wrong. This surprised me but not as much as the next step which is how the broker is protected.
The poor homeowner:
I am getting specific here so I need to say this information is for property in the state of Colorado only. Other states may be different and again I am not an attorney. If you find yourself in a position like this, my advice is contact an attorney.
The state approved listing agreement carries a lot of information but some of it is just not explained enough or made conspicuous enough in my opinion.
“181 10.4. Ownership of Materials and Consent.
Seller represents that all materials (including all photographs, renderings,
182 images or other creative items) supplied to Broker by or on behalf of Seller are owned by Seller, except as Seller has disclosed in
183 writing to Broker. Seller is authorized to and grants to Broker, Brokerage Firm and any MLS (that Broker submits the Property to)
184 a nonexclusive irrevocable, royalty-free license to use such material for marketing of the Property, reporting as required and the
185 publishing, display and reproduction of such material, compilation and data. This license shall survive the termination of this
186 Seller Listing Contract.”
As you can see, the terms of the listing contract put all the responsibility on the shoulders of the homeowner unless they put something in writing about the photos not being theirs. In the case I am involved in, nothing was put in writing and the photos absolutely did not and do not belong to the owner of the property. It goes a step farther, the photos were required to come down earlier and did not., The listing agreement expires but was extended, twice now if I have the dates correct. Each time the extension or new contract is signed the homeowner agrees to this set of terms again. They have effectively told the brokerage house, the MLS and other that they own the rights to the photos with no exception. They also give up those rights when the agreement is canceled either by sale or expiration. Notice the last sentence above. Even after the agreement is dead, they get to keep the photos and use them.
Consequences:
I being the holder of the copyrights of the photos expect to be paid for the use of the photos especially since the property has generated income for both the brokerage and the owner of the property. The time frame for the first use of them has not been included but any use after the email to remove them is a violation subject to action in a federal court. I also have the option to bill the responsible party. My first notion was to get the photos down but that has been ignored to some degree. As of today a full set is still being used to advertise the house on a website, those had to be posted by the broker. Since they put them on the sites, they most know what sites they use and should have removed them from all the sites they use and not only from the sites they were found them. DMCA notices are being prepared.
Summary:
Now it seems all actions have to be against the homeowner by their own declarations and signature. The brokerage house may have some liability due to vicarious liability in my opinion.
A person has three options right now, one ignore the infringement, two pursue the infringement in federal court. That is a $350.00 filing fee plus expenses. Carolyn Wright has a great website for information concerning photography and infringement. She is a lawyer, called the photo attorney, and a great photographer. Give her site a look and if you need information she can help. That $350.00 filing fee is about the same as the licensing fee for one photograph. There are other things to consider when filing a claim in federal court. Part of the code is that if a person infringes more than 10 items or times in a 6 month period they are subject to a serious fine and jail time. That would come into play if filed in federal court as a standalone claim. You can read about that there and other places. If you need more information check Studio 1 Magazine. The rest of the article and much more information will be on the magazine site this weekend. www.studio1magazine.com. The third option is to bill the responsible party and if they do not pay pursue it in a state court and/or pursue the infringement in federal court against both the homeowner and the brokerage house and not concern yourself with the 10 infringed rule and let the judge decide the fate in a criminal proceeding.
Intent: Legally it does not matter.
If you have been reading the articles and the magazine you will know that I have a different view than some. I do feel intent is a major factor. Here the homeowner had no intent in the first part in my opinion, the next times the photos were still used and her intent is not clear. The broker had intent to remove but failed to do so on at least three occasions. That is not acceptable either. There is no recourse against the brokerage except in federal court for vicarious liability in my current opinion and the homeowner has already agreed to cover all costs(see listing contract) so it again falls on the homeowner.
I have discussed this with Jeff Follis, CEO of CREN the MLS that is still handling this listing. I discussed it with Lauren Hanson, CEO of IRES. I have received and will post parts of the terms of services for each MLS in the magazine. They agree that the emphasis is on the broker who through the listing agreement puts the full responsibility directly on the homeowner. Homeowners beware of what you sign and what you provide to the broker either by giving them photographs or letting them keep using ones that are not yours. They put you out on that limb all by yourself.
Now what is the lesson for new photographers in this case. Simple, if you do something for someone no matter if they are people you trust follow the rules. Rule one, have registered photos. Rule two, followup the any decisions on your property, the photos. One of the reasons for me sharing this real life situation is the classroom can present things but only life can show you how things really work. This also shows you how things change on a daily basis. In early December I knew nothing about infringed photos on Pinterest, I knew nothing about full sets of my photos still being used to advertise a house that where supposed to be taken down more than once. Now the extra work and what to do about it. The people benefiting from it will say do nothing of course. The photographer is upset just like when I found one of my photos is pinned over 40 times now on Pinterest and it being used commercially including a person printing it and selling the prints. The copyright attorney is getting ready to be real busy. I just found out about the one photo a few days ago. The person using it as their background on Facebook has a surprise coming. Facebook blocked his account and removed it from public view.
One note here, if you are doing the work for something like real estate, have the person you are doing it for show you the documents concerning the content provided to the company doing the work or selling. I was in the real estate business for many years and we never had a content provision like the one in Colorado. If I had seen the document and read it the content provision we would have had a major discussion. Especially the use after termination clause. I was not shown the listing agreement and did not know that was a part of it until very recently. If you think that content clause is bad in the listing agreement you should see the ones from the MLSs and especially the sites that used and are still using the photos.And you can by visiting Studio 1 Magazine and look for the article.
The next part will be on Terms of Service for Social Media Websites as this was never intended to be about one particular case, but it makes a good case history for study as it is evolving and changing every day.