DR Legal News: Copyright Issues

Stay Intellectual about Copyright Issues

by Betsy Urbance, Illinois REALTORS® Director of Legal Services 

Designated REALTORS®/managing brokers, sponsored licensees and office personnel who are involved with legal compliance issues should take note of this information regarding copyright issues. 

copyright

The industry in general can expect an increase in litigation concerning intellectual property rights given the advancement of technology and the ease with which protected works can be copied. Intellectual property rights, which include patents, copyrights, registered marks, etc. are legal rights that are generally protected and belong to the creator of the “work” unless the owner grants a license to use the “work” in a limited way. Sometimes, the “work” is created then the creator transfers all the rights to the purchaser as a “work made for hire.”

Why does this matter to REALTORS®? It matters because REALTORS® use copyrighted works every day. The most obvious example is their use of photos of properties that they place in the MLS. Indeed, there is a lawsuit on file in Central Illinois, where the professional photographer hired by a real estate broker has sued the broker for copyright infringement in the use of his photos. The case is pending and we don’t know the results. However, it should be enough to encourage office administrators to review any office practices and procedures regarding use of copyrighted materials, including photos. Anytime a broker uses someone else’s photo, they should review any agreements they sign, whether they are electronic or in hard copy format. It would behoove the broker to get the broadest permissions possible, but this could become a matter of negotiation between the creator and the broker (see sidebar for more photography copyright resources, including a listing photo sample agreement).

NAR has a comprehensive Copyright section available on its website covering the many issues involved in the area of intellectual property. It offers sample office policy language and many other helpful tips.

Another related topic involves the Digital Millennium Copyright Act (DMCA). Concerned personnel should watch this video regarding requirements to register a copyright agent with the US Copyright Office.

There is also very important information as to what offices need to do to ensure protection from copyright infringement challenges under the DMCA Safe Harbor Provisions. These issues can arise where your website includes information from third parties, over which you have no control. An example could include an MLS IDX feed.

Here is another word of warning: Your Errors & Omissions (E&O) insurance policy will likely exclude copyright infringement complaints because, among other things, copyright infringement is a federal crime. This is important stuff. Check in with your advisers for suggestions as to how to avoid copyright issues in your offices.

Illinois REALTORS® has permission to share a helpful flyer from Capital Professional Insurance Managers, Inc. (Illinois REALTORS®’ preferred E&O provider), entitled Using Photographs in Real Estate and MLS Listings: What Every Agent Needs to Know Before Activating a Listing.

As always, it is important to contact your own attorney for specific legal advice on this and other legal topics.

Copyright Illinois REALTORS®. This content cannot be reprinted in parts or in its entirety without expressed written consent to Illinois REALTORS®.