Copyright law affects real estate licensees in a number of ways including, but not limited to, the use of photographs and listing content. It is therefore important for licensees to know the basics of copyright law as set forth below in the following frequently asked questions.

  1.  What is a copyright? – A copyright is a form of protection for original works of authorship fixed in a tangible medium including, but not limited to, literary, dramatic, musical and artistic works such as poetry, novels, movies, songs, photographs, artwork, and computer software. Copyright protection does not apply to facts, ideas, systems, or methods of operation.
  2.  What does “fixed in a tangible medium of expression” mean? – This means that the work must exist in some physical form for at least some period of time. In other words, the work must be recorded in some physical medium, whether on paper, audio recording, or computer software. As such, spontaneous speech or music that is not recorded is not protected by copyright.
  3.  Must the work be creative in nature? – Yes. To qualify for copyright protection, the work must be of at least some creative effort on the part of its author. Although there is no hard and fast rule as to how much creativity is required, it is generally acknowledged that a telephone book’s white pages, which involve a straightforward alphabetical listing of telephone numbers, is not creative in nature.
  4.  When does the work become protected? – An original work is subject to copyright protection the moment it is created in a tangible form. For example, the second a photograph is taken, the photographer owns a copyrighted work.
  5.  Must the work be registered with the United States Copyright Office to receive copyright protection? – No. Although registration may prove beneficial, doing so is voluntary and not required to obtain a copyright.
  6.  What does a copyright not protect? – Among other items, a copyright does not protect names, titles, slogans, or short phrases. However, in some cases these things may be protected by trademarks.
  7.  How is a copyright different from a patent or trademark? – A copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas are not protected by copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying goods or services of one party and distinguishing them from those of others.
  8.  Does the employer own the copyright for work created by their employee? – Yes. Any employer whose employee creates a copyrighted work as part of their job owns the copyright on that work. This is often referred to as a “work for hire.” As for independent contractors, a work created by an independent contractor can be a work made for hire only if there is a written agreement between the parties to this effect.
  9.  What rights do copyright owners possess? – Copyright owners can: (i) make copies of the work; (ii) perform and display the work publicly; (iii) distribute copies of the work; (iv) make derivative works; and (v) license the work.
  10.  What is copyright infringement? – Infringement is any violation of the exclusive rights of the creator. Examples include: (i) use of an image without permission; (ii) use of the work beyond the scope of a license or permission; (iii) copying the work; and (iv) adapting or modifying the work.
  11.  If an image is on the internet and therefore in the public domain, is a license or permission required to use or reproduce the image? – Yes. Even under these circumstances, use of the image would constitute infringement absent a license or permission.
  12.  If a user alters the original work, is a license or permission still required? – Yes. A license or express permission is required to alter or modify a copyrighted work.
  13.  Can portions of a real estate listing be subject to copyright? – Yes. A listing’s original content elements, including photographs of the property, list price, floor plans, drawings, and remarks by the listing agent on aspects of the property or neighborhood are eligible for protection under copyright law. Therefore, copying, distributing, or displaying listing content without a license or permission from the owner constitutes infringement of the owner’s rights. However, it must be noted that MLS’s rules provide that by submitting listing content to the MLS, a subscriber grants the MLS a license to use the listing content “for any purpose consistent with the facilitation of the sale, lease and valuation of property.”1
  14.  When a photographer is hired by a real estate licensee to photograph a home, who owns the copyright – the photographer, the owner of the home, or the real estate licensee? – Unless otherwise agreed, the copyright is owned by the photographer.
  15.  How long does a copyright last? – For works published after 1977, the copyright lasts for the life of the author plus 70 years.

1 Most vendors, including IDX vendors, will require that the broker or MLS represent and warrant that it has
   the right to license the listing content to the vendor.

Related article: Protect Yourself Against Copyright Claims – REALTOR®Mag (May 2017)

Scott Drucker Scott M. Drucker, Esq., a licensed Arizona attorney, is General Counsel for the Arizona REALTORS® serving as the primary legal advisor to the association. This article is of a general nature and reflects only the opinion of the author at the time it was drafted. It is not intended as definitive legal advice, and you should not act upon it without seeking independent legal counsel.

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