1. Copyrights and Listing Photographs
Presented by
Katie Johnson, General Counsel,
Chloe Hecht, Associate Counsel,

2. Fractured Landscape The authors of listing photographs vary.
Professional photographer; real estate agent; MLS employee; homeowner
Photographs may be owned or licensed in a variety of ways.

4. Fractured Landscape The fractured landscape…
Creates confusion over what rights were conveyed.
Increases difficulty enforcing against misuses.
Ultimately, a misunderstanding of the rights conveyed or granted increases the risk of a copyright lawsuit.
Mention response to NOI if included in materials before going into misunderstanding of rights creates risk of copyright lawsuit

5. Two Simple Ways to Reduce Risk of Copyright Infringement
Obtain necessary rights or ownership of photos.
Comply with the DMCA.

6. Recent Cases
Boatman v. Coldwell Banker Honig-Bell, No cv (N.D. Ill. 2016) (amended complaint filed Oct. 14, 2016).
Alan Goldstein v. Metropolitan Regional Information Systems, Inc., 2016 WL , (Dist. Md., Aug. 11, 2016)(complaint filed Aug. 13, 2015).

7. Recent Cases
VHT, Inc. v. Zillow Group, Inc., No cv-1096 (W.D. Wash. 2015)
Alexander Stross v. Redfin Corp., No. 1:15-cv (W.D. Tex. 2015)

8. Copyright Risk Management Strategies
Know Your Rights
Digital Millennium Copyright Act
Tips for Responding to Infringement Claims

9. Copyright Risk Management Strategies Know Your Rights
What rights do you have now?
Know what agreements you have in place.
Know how you are currently using listing photographs.
Know who you are working with.

10. Copyright Risk Management Strategies Know Your Rights
What do you want to do in the future?
Know your agreement options: Assignment, Work Made for Hire, or Exclusive/Non-exclusive License Agreements.
Know how you want to use the photos and ensure agreements cover those uses.
Know that warranty and indemnification clauses in agreements will help protect you.
Know where to find information by maintaining records of all photo agreements.

11. Copyright Risk Management Strategies Know Your Rights
Know that NAR created sample agreements:
Work Made for Hire Agreement
Assignment Agreement
Exclusive License Agreement
Available online at

12. Copyright Risk Management Strategies DMCA Safe Harbor
Designate a Copyright Agent to receive takedown requests.
New procedure at Copyright Office effective December 1st.
Previously designated agents will need be re-registered by Dec. 31, 2017.
Agents will need to be renewed every 3 years.
Fee reduced from $105 to $6.
Additional info:

13. Copyright Risk Management Strategies DMCA Safe Harbor
Implement a termination policy for repeat infringers.
Check out the Terms of Use on for sample language under “ Termination”:

14. Copyright Risk Management Strategies DMCA Safe Harbor
Must not have knowledge of infringing activity or facts that make infringing activity apparent.
Cannot turn a “blind eye” to any infringing activities.

15. Copyright Risk Management Strategies DMCA Safe Harbor
Must not control the infringing activity and receive a direct financial benefit from the infringing activity.
More than the ability to remove or disable access, e.g. prescreened websites; exercise of quality control; extensive content advice.
Direct financial benefit = infringing activity is a draw for users and not just added benefit.

16. Copyright Risk Management Strategies DMCA Safe Harbor
Comply with the DMCA Takedown Procedure.
Develop and post a takedown policy on your website.
Check out the Terms of Use on for sample language under “Digital Millennium Copyright Act”.

17. Copyright Risk Management Strategies Responding to Infringement Claims
What do you do if you receive a cease-and-desist letter?
Identify what is being claimed.
Assess those claims.
Respond to the claims.

18. Copyright Risk Management Strategies Responding to Infringement Claims
Identifying Infringement Claims in a Cease-and-Desist Letter.
Don’t panic!
What is the allegedly infringed photograph?
How are you allegedly infringing that photograph?
Who is the alleged owner of that photograph?

19. Copyright Risk Management Strategies Responding to Infringement Claims
Assessing the Infringement Claims.
Are you using the alleged photograph?
How are you using the alleged photograph?
Do you know how you came to use that photograph?
Do you have an agreement relating to that photograph?

20. Copyright Risk Management Strategies Responding to Infringement Claims
Responding to the Infringement Claims.
Consult an attorney.
Remove the photograph.
Respond to the letter asking for more information.
If necessary, negotiate a settlement.

21. THANK YOU! Katie Johnson General Counsel kjohnson@realtors.org
Chloe Hecht
Associate Counsel