Branded or Unbranded Media, A Video Conundrum

Jan 22, 2008  |  Michael Wurzer

A few days ago, I posted about a video from Jeremy Hart and a couple of the comments here at the FBS Blog and over at Phoenix Real Estate Technology Exchange highlighted questions about the “branding” at the beginning of the video, which I thought might be worthwhile addressing further.

First, let me get some of the questions about the MLS rules out of the way. The flexmls Web system allows the MLS to specify whether users can upload branded or unbranded videos. In addition, the MLS can specify that only unbranded videos be sent in e-mails or displayed on public web sites like IDX from FBS. In this case, Jeremy’s MLS allows both branded and unbranded videos to be uploaded and e-mailed and Jeremy’s video was uploaded as branded. All is okay with the MLS rules.

The theory behind these rules is pretty simple: The MLS is a cooperative information exchange and the brokers and agents promoting the listings of other agents would prefer not to be promoting those other agents at the same time. For example, agents often want to remove the name of the listing agent (if it’s not them) from detail reports before sending them on to their clients and they don’t want branded information showing up in the agent remarks on their IDX sites or other venues they may promote. They want the data presented raw without hype from their competitors.

But this raises another question entirely when it comes to video. How does one create a video like Jeremy’s, where he is the host/narrator, without “branding”? Jeremy could have omitted the NRVliving sign at the beginning, but is it really practical to start a video without introducing yourself? I suppose the question becomes how detailed the introduction gets, but that seems like an awfully slippery slope.

Another issue raised by video, virtual tours and even pictures is copyright. Upon creation, the video is copyrighted by the author, in this case Jeremy. Doesn’t Jeremy have a right to include a statement of authorship to preserve the copyright? Some MLSs transfer copyright to uploaded works to the MLS, but I doubt many include video in that transfer. And videos and virtual tours are just links, so what copyright is transferred, if any, from the uploading of a link. For those MLSs that do attempt to transfer copyright to video, are the authors/agents comfortable with that? Do they really intend to transfer authorship and ownership of that work to the MLS or their broker? Who owns the video linked in the MLS is a good question.

I raise these questions hesitantly because I can see some MLSs getting caught up in the details and deciding it’s all too much trouble and banning innovations like videos. As Bob Bemis, ARMLS’ CEO, observed about an MLS trying to control virtual tour captions: “So rather than give agents a new tool, with which to be innovative and different, they took away the tool because in the hands of a very small minority it might be ‘dangerous.'”

Don’t go down that path. Video is a great innovation and has the potential to provide more in-depth and decisive information about listings. Some of the best videos are the ones like Jeremy’s, where the expert, in this case the listing agent, explains the details of what’s making the house valuable. That there is “branding” in conveying that information seems outweighed by the value of the information. To the extent that some disagree, they can always choose not to send videos with their listing e-mails or exclude them from their IDX feeds, but I think those choices should be made at the individual level and not system-wide. What do you think?

17 Responses to “Branded or Unbranded Media, A Video Conundrum”

  1. Jeremy Hart says:

    Good post, Michael – you got it right when you said the video was branded to preserve copyright. If it was going to be passed along virally, I wanted it known that the video had been created by my group. Plain and simple. I never thought that it would have opened up such a forum for conversation on the issue of branded v. unbranded tours, but this will be interesting to follow.

    And Bob Bemis’ example is scary to think about.

  2. Hi Michael

    Great post that raises many good questions. We provide a separate video in english for our US based customers that is completely undbranded – then again, our format isnt agent based. This is for a number of reasons related to feedback.

    I’m not a lawyer but my understanding is that a link alone is not sufficient to transfer ownership of any intellectual property. If so, my question would be around exactly what “ownership” is being transferred via an upload: The link? The unbranded video itself? All raw media within that unbranded video?

    The associated questions that could be raised are also interesting – what happens when a third party not involved in the ownership of IP puts a video on a MLS that claims ownership to uploaded media? Can ownership be transferred witout consent of the owner?

    I would question why ownership of the IP is required by an MLS at all. Couldnt a simple royalty free usage license be used to protect the MLS and be far more defensible?

    My thinking is that in the worst case using a secondary unbranded video would be limited to the unbranded video alone rather than the ownership of the underlying media. But, again I am not a lawyer nor am I dispensing legal advice…just asking questions 🙂

    Perhaps people more qualified than I could share their thoughts….

    Tony

  3. Jeremy: I didn’t see the whole branded/unbranded issue either until the comments started coming. I agree that it will be interesting to see if others chime in.

    Tony: I’m not a lawyer either (though I used to be) but I’m pretty sure that linking doesn’t transfer any ownership of anything. I know some MLSs have copyright clauses in their membership agreements but my guess is that most don’t address video links.

  4. Greg Swann says:

    Almost everything that we consider to be a problem or issue with MLS rules is in fact an artifact of the cooperative commission. If buyers paid for their own representation, these silly rules would not exist.

  5. David Harris says:

    It comes down to scope and purpose. If you add a video to a listing, it should be information about that listing only. And if you are adding it to the listing “package” then the goal is to help sell the house as fast as possible. So as listing agent, I would not want to include anything in the video that may cause a buyers agent pause when showing it. As far as copyright, include a date stamp to indicate when it was done, so that 2 years from now when the house goes back on market, it will be difficult to reuse. But I think vast public distribution of the video is the goal in order to sell the house.

    But the rules are different if you are doing a video to brand yourself or showcase your expertise in an area. http://www.werockchicago.com/ has a great example of this. In that case, you are showcasing YOU and not the listing, so brand it extensively, but don’t upload it to the listing.

  6. Dave Weiss says:

    David:

    You have it exactly right! We’ve seen comments on other blogs that have posted and written about our video where they say “what about the inside of the house? This is a real estate video tour, isn’t it?”

    No, it isn’t. And it does not get attached to a listing.

    We have silly MLS rules here in Chicago, too, and video and anything else with branding is not allowed. That’s your reward for being creative and different, I suppose.

    It’s getting to the point where buyers aren’t really going to need an MLS anyway, because they refuse to keep up with the times and do the things consumers would want to see in their real estate searches.

    Anyway, thanks for linking.

    Also, I just want to point out that we don’t brand very heavily in the video. That’s not our thing. It’s subtle and unobtrusive, which is how we would like it if we were the consumer watching a real estate video.

    -Dave-

  7. Chicago has it right. If branding is allowed on videos then why not on everything else? Can I demand branding on my still photos? I’ll bet the DoJ would say yes. Shall we just change the MLS into another advertising medium and be done with it?

  8. Ron Stephan says:

    While I do think video, virtual tours, tons of photos, rss and any other creative tools that are used to advertise a listing are great, the question of branding always has to enter in to the equation. While a listing agent certainly has the right to advertise the premise of MLS is COOPERATION. I don’t think any agent in their right mind wants to send their buyer prospect another agents advertisement. That is why we came up with the option to send or not send with the default being no. A simple rule we follow whether it has to do with fair housing or advertising is “describe the property NOT the people.” I think this is perfectly reasonable.

  9. Ron, a question I’m pondering is whether the mere presence of the agent in the video is branding. assume Jeremy had no intro. Is the mere fact that he’s the narrator/host of the video branding?

  10. Doug McVinua says:

    This further raises the question of who the MLS’s are serving? The traditional model has been the MLS exists to serve the Real Estate Agent members. I think the public access to the MLS information is rapidly requiring new thought as to who is the MLS serving. As public feeds/web sites are created/allowed by the MLS’s we are transitioning over to more and more a public site. The MLS’s may need an agent side for confidential information (showing info, alarm codes etc), however on the public side the MLS’s could quickly fall behind other sites if not responsive. The public is going to find the information and the MLS’s are well positioned to provide rich/deep information and keep the consumer interacting with Realtors. I make my living as a Realtor and would like to think we will continue to provide services the general public values!!

    Doug McVinua
    RE/Max Achievers
    Chandler, AZ

  11. John C says:

    Michael – thanks for such a thorough answer to my comment. I was afraid that I was asking a dumb question, I guess others had it, too. I will contact our local board to see what, if anything, they have ruled on the subject. Thanks also for the analogy to linked info from Virtual Tours, maybe that will be beneficial to our MLS in considering the video issue.

    Thanks,

    John

  12. Galen says:

    Michael, I’d love to see a post in the future on copyright. I’m baffled by the concept of the copyright being transfered to the MLS and not shared. Do brokers have copyright or the right to use listings from their agents? When is that typically given?

  13. Jim Duncan says:

    I’ll second Galen’s request for a post on copyright. It is such a fluid concept with MLS’ and I assume it varies around the country –

    What type of copyright? Is it limited? Why?

    Why?

  14. Bob Bemis says:

    Dave Montgomery hit the nail on the head, but may not have recognized it when he wrote, “Shall we just change the MLS into another advertising medium and be done with it?” The MLS became an advertising medium the first time two brokers in the northwest decided to cooperate by putting each other’s listings on their web site. Shortly thereafter, the IDX program was developed and all brokers started sharing listings and their associated advertising. The MLSs acknowledged this by changing rules and most importantly adding fields to their database to facilitate this advertising. We now have variations of “public remarks” (those allowed to be distributed in the IDX feed because they will be read by consumers) and “private remarks” (those reserved for agents and containing private information such as lock box codes or entry codes for condo elevators or gated communities).

    Greg Swann is close to the salient point when he wrote, “Almost everything that we consider to be a problem or issue with MLS rules is in fact an artifact of the cooperative commission. If buyers paid for their own representation, these silly rules would not exist.” The “branding” issue arises because MLS systems allow agents to forward listings to clients using email, or private web sites for customers within the structure of the MLS. Listing agents don’t want to send email to their buyers that contains info on how to directly contact other listing agents for fear the “others” will steal their buyer, do the deal directly, take both sides of the commission, and cut them out of the income. But if the buyer’s rep had an exclusive buyer representation agreement in place this would not be an issue. And if this concept (never identify the listing agent to a buyer) were extended to its logical conclusion, we would ban branding on yard signs. Buyers drive. They see signs. They can call the listing office directly, even if they are already working with an agent who unfortunately omitted the exclusive representation formality. The same holds true for newspapers, homes magazines, radio, television, billboards, and any other place one advertises listings.

    David Harris hit the nail squarely with, “It comes down to scope and purpose. If you add a video to a listing, it should be information about that listing only.” That’s the new (or expanded) purpose of MLS: Sell the house. Doug McVinua was spot-on with his observation that public information contained in private listings requires new thought on who we are serving. Public Remarks provide a space for agents to “sell” the property by pointing out the features beyond the fields MLS provides that buyers would want to know about in making their buying decision. Yes, the speakers in videos should be introduced. Yes, there should be a copyright notice if needed. And Yes, neither of those should be so intrusive as to change the subject of the video from the house to the presenter or his/her company. We could probably reach consensus on this quickly were it not for the shades of grey in the middle. Does mentioning your brokerage affiliation when introducing yourself cross the line from grey into black? Does a copyright notice that includes not only the company name (required by law) but the company’s logo (not required, but looks cool) cross that line? If a logo is permitted, what size can it be without becoming an ad for the company? How do you measure that (I still don’t know how tall a pixel is)?

    There is a rule of reason that we need to introduce into our rules process because not all rules can be black and white. All MLSs have people who do review listings for compliance. This process is necessary and vital to maintain order and minimize legal liability. But within this process will necessarily be an element of judgment and with that variable we will necessarily have disagreement over the judgments made, particularly in the grey areas. But knowing that the disagreement looms should not deter us from tackling the problem and developing guidelines for the use of these new media. Because if we don’t’, as David Weiss points out, we will not be providing the things consumers want to see when they search for information upon which to make their housing decisions. And if we (MLSs and their subscribers) don’t, as we are already seeing on the web, someone else will.

    Interestingly enough, my compliance officer approached me after reading my earlier post on this topic of videos. He had watched the Jeremy Hart video, read my comments about banning the virtual tour provider, and said blithely, “You know we would have rejected Jeremy’s video because it was branded.” I guess the proverb “Physician, heal thyself” is most appropriate. We all have work to do on this issue to stay not only reliable, but relevant.

    Bob Bemis
    (Views expressed are my own and do not necessarily reflect the official position of my organization – yet .)

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  16. […] Duncan and Galen Ward asked for a post on copyright and the MLS, so here it is.  There are many experts in the area of copyright and MLS data, including Brian […]

  17. While I cannot decipher the latest post, it has brought me back to this topic.

    Each time we loosen the reins to accommodate a technocrat or a seller’s agent with an advertising only mentality, REALTORS® are removed further from the latest mantra…”keeping REALTORS® at the center of the transaction.” If we give clients everything at first look, don’t expect them to be motivated to inquire as to information not immediately provided (i.e. address and directions.) No inquiry, no lead.

    Now, the seller’s agent wants his/her contact information on the video tour (and thence everything else that comes through the MLS) so the MLSs move closer to being just another advertising source. MLSs moved away from charging listing fees long ago. All MLS members share equally in the cost of MLS participation and all should have an equal shot at the benefits.

    OK, I know lenders, insurers, and others who would gladly produce virtual tours with their own announcers to assist sellers and their agents (in return for an advertising opportunity.) Is that where we want to go? Isn’t it better to say no branding on videos or photos and let the branding appear on the appropriate surround (i.e. IDX)?

    Keep up this nonsense and we will soon have “open MLSs” (perhaps run by the states) where every seller can list their home directly and upload their own YouTube video tour. Who will need a REALTOR® to list a home in the defunct MLS system?