Photographs and Copyright Infringement In Real Estate Marketing
The use of the internet as a marketing tool for real estate professionals continues to become more and more prevalent. No doubt, there are countless studies evidencing the fact that the use of high quality photographs and videos reduces the length of time it takes to sell a property. While perhaps not commonplace, it is not unheard of for an out-of-state buyer to purchase a property based in large part on photographs. Yet it can be costly to retain a professional photographer to photograph a property. While this may make sense when listing high end properties, it may not be cost effective for a standard listing. It can be time consuming for a busy real estate professional to take high quality photographs for each of the properties he/she is listing.
If there are existing photographs of the property available on the internet or in an expired MLS listing, why not simply utilize the existing photographs? The answer is that the real estate professional may, unwittingly, be committing copyright infringement. There is no intent requirement under the federal Copyright Act; therefore, ignorance of the law is not a defense in a copyright infringement action.
It is not difficult to imagine a situation where a client provides a real estate professional with a thumb drive containing photographs of the client’s property and asks that the photographs be utilized in connection with any marketing of the property. It would not be uncommon for the real estate professional to utilize the photographs without inquiring as to their origin. What if it turns out that the photographs are owned by a professional photographer that had photographed the property in connection with an expired listing? In utilizing the photographs without permission from the photographer as the copyright holder, the real estate professional is potentially liable for copyright infringement. The copyright holder can then recover actual damages suffered or statutory damages under the federal Copyright Act. The Copyright Act provides for a wide range of damages from $750 per work up to $150,000 per work. See 17 U.S.C. §504. The copyright holder also has the ability to recover attorneys’ fees and costs associated with a copyright infringement lawsuit.
Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013) is a case that brought copyright infringement to the attention of many real estate professionals. The Metro case addressed the issue of whether a real estate listing service had properly registered the individual photographs of properties contained within its listings by registering the listings as a database. In Metro, a competing real estate listing service had utilized individual images contained in the database without the copyright holder’s permission. The Fourth Circuit held that Metro had an ownership interest in the photographs contained in its database and affirmed a preliminary injunction prohibiting American Home Realty Network, Inc. (“American”) from utilizing Metro’s photographs on American’s website. The Ninth Circuit Court of Appeals, in Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 683 (9th Cir. 2014), agreed with the holding in the Metro case. This is important because Arizona is also in the Ninth Circuit. Each MLS has its own set of rules pertaining to the utilization and ownership of photographs used in listings. It would be worthwhile to familiarize yourself with the rules of the MLS of which you are a member.
As a matter of practice, it is advisable to never utilize a photograph taken from the internet to market a property without a written license or other written agreement with the copyright holder since oral agreements are not recognized under the law. This article is certainly not intended to serve as a lengthy treatise on copyright infringement law. Rather, it is to serve as a warning to the unintentional, but no less culpable, use of copyrighted images by a real estate professional who is seeking to save time and money in connection with the sale of real property in Arizona.
Additional sources of information on this topic can be found at:
http://www.realtor.org/publications/realtor-ae-magazine/copyright-listing-ownership-under-the-law
About the author:
Aaron Finter is a partner at the law firm of Schern Richardson Finter Decker, PLC practicing in the areas of real estate, commercial and general litigation. Aaron represents homeowners, real estate professionals, title companies, lenders, landlords, tenants, and contractors and can be reached at (888) 464-9958.
Tags: copyright infringement, marketing, photographs