You need a photo of a Gulf sunset to sell a beachfront condo. A title company you often use has a perfect photo on its website and surely wouldn’t mind if you use it – so you do. It seems innocent, but the actual photo owners are going after agents claiming copyright infringement.
You take your own listing photos, but sometimes a webpage or flyer would pop more if you could add a single photo of a Florida beach at sunrise or a palm tree backed by a rainbow. Since you don’t like to rise before 8 a.m. and the forecast doesn’t call for rain, you do a quick Google search, find the exact picture you have in mind and use it. After all, when it comes to marketing Florida’s sunny properties, there are a million photos online, and many even look similar.
Who owns the pictures?
The problem for real estate professionals is that someone, many times a company, owns every single online image.
A bigger problem is a fundamental misunderstanding that an image readily obtainable on the internet is available for use by anyone – this isn’t true. “I found it on the internet” doesn’t mean “I have permission to use it.” In fact, this problem has become so widespread that companies are enforcing their rights, demanding that real estate professionals, among others, pay for illegally using their photos in marketing.
Cease and desist
A large and growing number of Realtors® have received demand letters from photo licensing companies, such as Getty Images, citing their illegal use of an image on their website – but a large percentage of the time, the violation is a mistake and members 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.
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 violated someone’s copyright? Consider consulting an attorney and double-check the image in question. Is it owned by the company demanding payment? If it is, remove it. 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.
IDX webpage images
What if a copyrighted image is on your IDX webpage? You didn’t put it there – how can you be liable?
There is a process you can institute to protect yourself from violations within your IDX feed – 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.
Website operator safe harbor provisions
- Does not have actual knowledge of the infringing content
- Is not aware of facts or circumstances from which infringement is apparent
- Does not receive a financial benefit directly attributable to the infringing activity
- Acts expeditiously to remove the infringing content when notified
- Has provided a means for receiving notice of the infringing content, registered a person with the U.S. Copyright Office as the designated agent for notices about infringement, and put the agent’s name, address, phone number and email address on the website
Many agents have their own websites, and their brokers also need to ensure that each individual website is registered with the U.S. Copyright Office as well.
“The statute requires each website to register a person or entity that will receive notice of alleged infringement, referred to as a ‘DMCA /Service Provider agent,’” says Katie Johnson, general counsel and chief member experience officer of the National Association of Realtors. “The Copyright Office form is set up such that one person or entity can be the agent for multiple websites by specifically listing each website on the registration form. Therefore, to be fully compliant with the statute, you must list each of the websites for which you want to act as DMCA agent.”
The first line of defense to avoid photo copyright infringement? Take your own pictures or hire someone to take pictures for you. (If you sign a photographer contract, make sure you understand your obligations and limitations.)
If you use online images, pay the licensing fees to ensure that you comply with the law. If you work with a web developer, consider inserting language into your service agreement that indemnifies you in the event the developer provides an image that infringes on someone’s copyright.
Finally, images are not the only items that are copyrighted: writings, drawings, music, printed material and videos are also a source of risk. When using these materials, follow the same steps to protect yourself.
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. A description of the copyrighted work or other intellectual property that you claim has been infringed;
b. A description of where the material that you claim is infringing is located on the Site;
c. 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;
d. 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;
e. 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;
f. Your electronic or physical signature.
[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].
Where can you get photos?
A number of websites offer quality photos for use once you purchase a licensing agreement.
Meredith Caruso is Associate General Counsel for Florida Realtors
© 2020 Florida Realtors®