I’m back at it after a quick trip to Inman Connect San Francisco 2015. It was a good conference, and I wish I could’ve stayed for more of it. I was honored to participate in a discussion led by Brian Boero Co-founder of 1000Watt that included Chris Heller, CEO of Keller Williams and Jonathan Bednarsh, president of Onboard Informatics.
Andrea Brambila, Deputy Editor of Inman News, fired off a tweet storm that is recapped in this article. As with most legal issues, a 140 character tweet isn’t going to necessarily capture the full intent. I’m going to clarify a few things with this blog post. That said, I’ll do my best to do this as succinctly as possible.
What components of listing content are subject to copyright?
Photos, video, and other media; free form text; maybe the display of the listing; maybe price; the way the component parts of the listing are selected, coordinated, and arranged; and the way the listings themselves are selected, coordinated, and arranged. There may be more things — this is just what’s jumping out at me right now.
Who originally owns copyrights?
The quick answer: the person who created it. They’re called the author.
There are two exceptions. First, if it’s an employee in the scope of their employment the employer owns it. Second, if someone is hired to create a specific type of work and there’s a written agreement, the hiring company/person owns the work. In these two cases, the employer or hiring company/person are the author. These two exceptions to the norm that the person who created the work is the author are called the work for hire doctrine.
So, who owns copyrights in the listing?
Potentially many parties. Who took the photos? Who wrote the free form description? So on and so on. Absent an assignment, copyright sticks with the author. In the case of copyrights of listing content, there may be many authors. Our firm refers to this as “fractured ownership.” You can read more about potential ownership of copyrights in a listing here.
Who could own the copyrights?
By written assignment, anyone. Brokers can scoop up copyright ownership from independent contractor agents with written agreements. MLSs can aggregate ownership from brokers and agents. (However, note that NAR Policy Statement 7.85 prohibits an MLS from requiring assignment of intellectual property as a condition of participation.)
Doesn’t the broker own the listing agreement?
Yes. The broker owns the listing agreement. That’s basic contract law. NAR Policy Statement 7.85 says the same thing. This is distinct from ownership of the copyrights in the listing.
Absent an assignments, the copyrights will stick with the authors. No, NAR policy isn’t going to override constitutionally based federal law.
Doesn’t the homeowner automatically own the copyrights?
No. The homeowner may own photos they took and provided for the listing (again, absent an agreement otherwise), but the homeowner does not own the copyrights by virtue of owning the property (again, absent an agreement otherwise).
Well, if copyright ownership is fractured, how do non-owners use the listing?
Simple. Licenses. A license is the permission to use something.
I don’t own the software I’m using to type this post, but I have the permission to use it. I don’t own the music in the Spotify playlist I’m listening to (Alt-J, FYI), but I paid for a license listen to it. Your use of an app on your mobile phone is governed by a license. Etc., etc.
Why not just open up the MLS database?
Without agreements in place to, among other things, set expectations and allocate potential risk, there could be liability for many parties.
Hopefully this provides a bit more clarity about who owns the copyrights in a listing. Well, I realize the waters are muddy – fractured ownership and all – but I hope it’s more apparent that there isn’t a clear answer. 🙂
Thanks for reading!
Jeff Beck says
Interesting and informative post.
I have so many questions, but will go with just one.
OK, if “Participants cannot be required to transfer… intellectual property rights…
in their listings… to MLS…
If a broker were to obtain copyrights from their agents/photographers and then gave written notice to the MLS that they want to retain all copyrights on those photos, text, etc… would they be in a good position to go after copyright thieves?
Mitchell Skinner says
Jeff, thanks for commenting! Yes, brokers can, and some do, aggregate works of copyright created by agents and photographers. Those brokers might also choose to not assign the copyrights to the MLS, if the MLS gives participants the option to assign copyrights. If the broker registered the copyrights within three months of publication, yes, the broker would be in a position to pursue copyright infringers.