Copyright Basics

Jan 28, 2008  |  Michael Wurzer

Jim 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 Larson and Russ Cofano (though Russ is now in-house at John L. Scott). I suspect Galen knows more about copyrighting MLS data than I do, given Russ’s involvement on RainCity Guide over the years. Anyway, I’ll respond to the call and at least explain what I meant about copyright transfer in my post on branded videos. Here are the basics:

  1. Facts are not protected by the copyright laws, but some parts of the individual listing, like the agent comments, photos, videos, etc. are expressions of authors and are protected.
  2. The author is the owner of the copyrighted work.
  3. Copyright means you can’t copy someone else’s work without permission. Permission usually is granted in the form of a license, which is a type of contract.
  4. Quite often, agents enter into some sort of agreement with their brokerage and the MLS regarding the right to use (license) the works created by the agent. The specifics of those agreements will determine whether the license is exclusive, permanent or has some other restrictions. This is what I meant in my earlier post, about transfer of the copyright, it all depends on the specific terms of the contract or license agreement from the agent to the broker to the MLS.
  5. The MLS also has copyright in the “compilation” or the database of the individual listings, which is a separate work of authorship from the individual listings.

That’s basically it. The agent is the author (most often) of the remarks and photos and other media, but they often license those works to their broker and the MLS. The key question is what are the terms of that license. Take a look at the contracts you have with your broker and your MLS. What do they say? If they don’t say something about copyright, you probably need to amend them. It would be great if you could let us know what you find by commenting this post.

6 Responses to “Copyright Basics”

  1. Galen says:

    Thanks! Russ’ explanations too often come through a vitriolic comments battle between him and Ardell. Or at least they used to. And I was never keen to scroll past comment 20, so I’m sure I missed out on other succinct explanations.

  2. Brian Larsn says:

    Mike, this is how I explain it to clients:

    In general, the author of a work secures copyright in it the moment it is created. In the case of MLSs, there are three principal kinds of work in which copyright can arise: compilation, original text, and photographs. Compilation is the selection, coordination, and arrangement of the elements in the MLS database. The author of this work is whoever created the selection, coordination, and arrangement; this will usually be the MLS, the MLS’s vendor, or both jointly. Original text is text that has at least a spark of creativity: This would include all remarks and free-form text fields where agents and brokers have an opportunity to express themselves freely. It may even include the list price, since that number is the product of a creative process by the listing agent. The author of original text in the MLS is usually the listing agent but may also be an agent’s assistant or a broker. The author of a photograph is whoever snapped the picture, whether it was with a traditional film camera or a digital camera.

    If an agent is an employee of her broker, then the broker is the author of the works the agent creates in the scope of her work – this is called a “work made for hire.”

    The person who currently owns a copyright is called the “owner.” An author may transfer his copyright interest to another party, so the copyright owner is not necessarily the author. But such a transfer or “assignment” is effective only if it appears in a writing signed by the author. The copyright owner has the power to register the copyright and to enforce the copyright against infringement. Generally, only the owner may do so. (An “exclusive licensee” may also do so, but for purposes of simplification, I will discuss only the owner role.)

    A copyright owner can grant a license to another to use the copyright-protected work. A license need not be in writing; it may be oral or even implied by the owner’s conduct. For example, if an agent takes a photo and then submits it to MLS, the MLS and other brokers can assume that the agent meant them to have a license to do with it the things the MLS rules say they can do.

    In the absence of an assignment or license, the owner of the copyright is the only one who can copy, distribute, or display the work or create derivative works based on it.

    Mike’s right about facts not being protected by copyright. They CAN be protected, however, by contract. If you use a site that offers factual data, you will usually be required to click through an agreement not to redistribute it or you will be given clear notice that your use is subject to an agreement. Courts typically enforce such terms as contracts. Don’t assume because you find facts on a web site that you are free to reproduce them!

    Registering your copyright with the copyright office and putting the copyright notice on your works is not necessary for the basic level of copyright protection, but each formality provides some benefits. We can maybe discuss that another time 🙂

    My best.

  3. Thanks, Brian, I was hoping you’d stop by!

  4. Jim Duncan says:

    And here I was, trying to find the copyright information from our MLS (still trying/waiting) and Brian provides the perfect answer.

    One quibble, and it may be a matter of semantics – most agents are independent contractors, not employees.

    Is it possible that a broker transfers an irrevocable license or copyright to the MLS at the point that they upload the photo? What are the rights (and I assume this is going to be specific to each MLS) of the 1st broker should they, for example, have a listing expire and the 2nd broker uses the photos?

    If one were to register copyright on all photos prior to uploading to the mls, might that copyright supersede the rights of the MLS?

  5. Jim, as you guessed, the answers to most of your questions will depend on the membership agreements with your MLS and your relationship with your broker. You need to check the agreements in place. With regard to your last question, however, it is worth noting that copyright ownership is created by the act of authorship, not registration. Registration gets you certain presumptions and rights to statutory damages when trying to enforce the copyright, but it doesn’t create the copyrights. Also, ownership generally only transfers by contract, either through a license or, as Brian noted, a work made for hire. I would think it would be unlikely that a court would imply (without an express agreement) an irrevocable license. Maybe a temporary license but not an irrevocable one. This is why many MLSs have express licenses in place as part of their membership agreement. Most MLSs we work with allow copying of the photos, but we have encountered agents/brokers who object to that and the MLSs I’ve worked with have almost always abided by that decision and prevented re-use of the photos, unless they have a license agreement in place to the contrary. That’s just my view and you’re advised to get advice from a lawyer. 😉

  6. Jim, for you and others interested in this topic, there’s a great post on it today over at Photography for Real Estate.