In a not so shocking state of the real estate world, the NAR board approved a move today that requires brokerages to have the license to any and all marketing content they use in the MLS listings, and to extend that license to the NAR.
Why target listing content?
A rising number of lawsuits against real estate companies are focusing on the use of listing photos, including a case brought against Zillow by real estate photography company VHT Inc. that could embroil brokers and MLSs.
The use of listing photos was also an issue in lawsuits against alleged copyright infringer NeighborCity that cost two MLSs millions of dollars.
Last fall, real estate attorney Mitch Skinner of Larson Skinner urged brokers and MLSs to make sure they get the right to license listing data for downstream uses.
We can certainly see where a stick mess could ensue, if the homeowners or the listing agents who originally commissioned the photos did not understand the licensing they needed to obtain for the use of their own property listing images; we can also see where some zealous photographers might be looking to cash in on something that’s a bit of a grey area.
The policy change –
Here is MLS Policy Statement 7.85 and how it has been changed:
The listing broker owns the listing agreement. Prior to submitting a listing to the MLS, the listing broker should own, or have the authority to cause license all listing content (e.g., photographs, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to listed property) to be published in the MLS compilation of listing information.
Use of listings and listing information by MLSs for purposes other than the defined purposes of MLS requires participants’ consent. Such consent cannot be required as a condition of obtaining or maintaining MLS participatory rights. MLSs may presume such consent provided that listing brokers are given adequate prior notice of any intended use unrelated to the defined purpose of MLS, and given the opportunity to affirmatively withhold consent for that use.
Participants cannot be required to transfer any ownership rights (including intellectual property rights) in their listings or listing content to MLS to obtain or maintain participatory rights except that MLSs may require participants to consent to grant the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information to the extent necessary to fulfill the defined purposes of MLS. MLSs may also require participants to warrant that they have the rights in submitted information necessary to grant these rights to MLS. (Adopted 5/05, Amended 5/06)
If you’re an agent or a broker and you are paying a professional photographer to work your listings, this policy change is in your favor (in our humble opinion), as it requires you to be sure that your photographer is properly releasing the images to you for marketing use. While that may not sound like a big deal, in reality, it is.
This also clears the way for all your content to be used in property listing passes (although you already certify that you have the right to use the images for the purpose intended when you sign up for an account, just to be clear).