A Picture Says a Thousand Words… and May Cost You.
According to a NAR Profile of Home Buyers and Sellers, eighty seven percent (87%) of persons who searched for a home on the internet found photographs to be among the most useful features of REALTOR® websites. The NAR also reported in 2019 that eighty one percent (81%) of Older Millennials, eighty percent (80%) of Younger Millennials and seventy eight percent (78%) of Generation X found their home on a mobile device compared to sixty eight percent (68%) of Younger Boomers. In many instances, home buyers are scrolling through sites to identify a home they’re interested in and then contacting an agent. As a result, photographs are becoming an even more significant part of marketing real estate. However, whether you’re using photographs or video, agents should be aware of the legal issues that need to be considered.
A copyright is the exclusive right given to the creator of a creative work to reproduce the work for a particular time. The creator is the only one with the authority to use the work unless he or she licenses usage of the work or formally transfers away the copyright.
Do it yourself photography.
If you don’t have the budget to hire a professional photographer, you can submit your own photographs to the MLS or in your on-line advertisements. If you take the photograph, then you own the copyright. But that is not necessarily the case if a third party photographer is used.
Third party photography issues.
If you are retaining the services of a photographer, licensees should try to negotiate to obtain all rights to the photographs and the contract should contain language which provides that the “Photographer hereby assigns all right, title and interest, including copyrights, in photographs to Customer, and agrees to execute any documents which Customers may reasonably deem necessary to effect such assignment.” Alternatively, the agent should at least make sure that they have a license to use the photographs. The contract should provide that the photographer “grants to the agent a license to use the photograph in all compilations of properties and in real estate related advertising, business cards, brochures and other promotional materials, including the right to reproduce, create derivative works from, distribute, and publicly display the photograph in print, on the internet and otherwise.”
Caution about “free images”.
In Reed v. Ezelle Investment Properties, Inc. a professional photographer, Reed, shot numerous pictures of the Japanese Garden in Portland, Oregon and displayed in on his website. Reed registered the images as part of a group registration and received a certificate number from the US Copyright Office. Ezelle operates a real estate business and found the photographs in a Google search for “free images” to display on his website. The images did not contain any watermark or other identifiers which would reflect copyright protection.
Anyone who violates the exclusive rights of a copyright owner is an infringer of a copyright. 17 U.S.C. § 501(a). To prevail on a claim of copyright infringement, the plaintiff must establish ownership of a valid copyright and copying of constituent elements of the work that are original. Copyright infringement is a strict liability offense, meaning that the defendant’s intent is not a required element of the claim. The copyright owner may elect to recover statutory damages instead of actual damages and profits” in a sum of not less than $750 or more than $30,000 as the court considers just.”However, in cases of willful infringement, the court may increase the award of statutory damages to $150,000. In cases of innocent infringement, the court may reduce the award of statutory damages to a sum of not less than $200. 17 U.S.C. § 504(c)(2).
Willful vs. negligent infringement.
To prove willfulness, the Copyright Act requires a plaintiff to establish that the defendant was actually aware of the infringing activity or that the actions were the result of “reckless disregard “ for, or “willful blindness” to, the copyright holder’s rights. If an infringer makes no attempt to inquire into whether the item was subject to copyright protection, the infringer is deemed to be reckless and willfully blind. Louis Vuitton Malletier, S. A. V. Akanoc Sols, Inc., 658 F.3d 936 (9th Cir.2011).
The court concluded that Reed could not establish willfulness because Ezelle believed he took steps to make sure he was using a free image. On the other hand, the court found that the defendant could not prove they were innocent because while a copyright notice did not appear alongside the images when it was downloaded, the fact that the photographs had been copyrighted could have been discoverable. As a result, the court found that the licensed real estate broker who had dealt in real property for over two decades should have known that he could not use the images. Simply searching Google for quote free images” and not immediately seeing a watermark lacked the type of diligence that would mitigate an award of statutory damages. The court noted that the plaintiff had not present evidence of actual damages and, in consideration that the parties were not competitors, and that the broker terminated his infringing use immediately after receiving a cease and desist letter, it awarded $1500.00 to the plaintiff. Although the plaintiff did not recover significant damages, he was also entitled to an award of reasonable attorney’s fees and costs.
PRACTICE POINTER: free images on Google may still be protected by copyrights and infringement can subject you to statutory damages and unwanted legal fees. Unless you’ve received express written permission from a copyright holder to use an image, do not use random photos found on the Internet. It’s a recipe for disaster and not worth the headaches, time, and expense.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.