‘Mother, may I?’ The questions of copyright/use permissions addressed

Writen by Betsy Urbance |

Published: February 22, 2022 |

Reading Time: 3 min

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.

As predicted, the real estate industry has experienced an increase in litigation concerning intellectual property rights with technological advancements 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 they place in the MLS. Indeed, a decision was recently reported where, after many legal twists and turns, a federal court entered a $1.9 million judgment against Zillow, Inc. in favor of VHT, an Illinois photography company, for its unauthorized use of VHT photos. This 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. If the agreement involves an electronic check box, read the terms of agreement behind the “click.” 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.

NAR has a comprehensive section available on its website covering the many issues involving intellectual property, copyrights, licensing, obtaining the proper permissions and other helpful tips.

Another related topic involves the Digital Millennium Copyright Act (DMCA). Concerned personnel should check out these FAQs regarding requirements to register a copyright agent with the US Copyright Office.

This is very important information for offices to do to ensure themselves 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.

Photos are not the only items protected by copyright. Other examples include articles, videos and music. Consider a situation where an agent produces a virtual video tour of a property. To add interest to the video, the agent uploads background music to the video. Does the agent have permission to use the music that is a copyrighted work?

Another example involving the question of proper permissions is a real estate practitioner’s use of forms associated with disclosures and contracting for the sale of lease of real estate. Brokers must take care that forms used by the sponsored licensees are being used with the consent of the form provider or under some sort of licensing agreement. Licensing agreements are commonly provided by the company’s franchise, local REALTOR® associations, the state association of REALTORS® or by some other author of the forms being used. If a broker goes online, finds a form they like and downloads it, there is a good chance permission has not been obtained for its use.

Here is one more caveat: The company’s Errors & Omissions (E&O) insurance policy might exclude copyright infringement complaints because, among other things, copyright infringement is a federal crime. This is important stuff. Check in with company advisers for suggestions as to how to avoid copyright issues. As always, it is important to obtain specific legal advice on this and other legal topics.

About the writer: Elizabeth A. (Betsy) Urbance, General Counsel and Vice President of Legal Services has served the association’s members as General Counsel since 2018 and prior to that she was Legal Hotline Attorney since 1994. Urbance is a 1984 graduate of Western Illinois University and received her law degree from the University of Missouri School of Law in 1987. She is licensed in both Illinois and Missouri.

Your Illinois REALTORS® Legal Team