Several MLSs have recently launched MLS photographer programs. Under such a program, the MLS works directly with photographers to increase market options and transparency, reduce risk for involved parties, and create other benefits for the MLS, participants, subscribers, and photographers. Such a program can play a role in an MLS’s copyright strategy, efforts to serve participants and subscribers, and aims to educate participants, subscribers, and photographers regarding the use of listing photos. The following is a list of considerations for an MLS when assessing whether to create an MLS facilitated photographer program, as well as considerations for an MLS that chooses to develop and implement a program.
Assess the current landscape
MLS leadership should assess the current photography landscape in its market area. Specifically, it may be important to understand participants’ and subscribers’ use of photographers and media companies.
- Are there many photographers and media companies operating in the market, and do participants and subscribers tend to use professional photographers?
- Has MLS consulted with broker-participants to gauge support for an MLS photographer program?
- How does MLS currently get licenses to or assignment of photos and media in its system?
The MLS’s assessment of the market conditions can help leadership understand potential risks of the MLS’s existing approach toward photographs and media in the MLS. And it may also help the MLS develop its goals for the program.
Determine the MLS’s goals
Determining the MLS’s goals for implementing an MLS photographer program will drive other decisions related to the development of the program. Potential goals could include:
- providing additional services for participants and subscribers;
- educating participants, subscribers, and photographers;
- mitigating risk for the MLS;
- strengthening the MLS’s copyright portfolio;
- controlling unauthorized content from being input into the system;
- enforcing data use limitations;
- enhancing photographer business; and
- facilitating photographer created content use parameters.
Establishing an MLS’s high-level goals at the project outset will help it work toward crafting a program that meets those goals.
Develop the business terms of the program
The MLS needs to consider how it will structure its MLS photographer program and what benefits it will provide to photographers. Considerations could include the following items.
- What are the benefits that photographers get for participating in the program? For example, marketing exposure, affiliate status, access to the MLS system, etc.
- What is the consideration for photographers to participate in the program? For example, are there fees?
- Do photographers have to meet specific requirements to participate in the program?
- Will the MLS license current or new trademarks to participating photographers? Will the marks be program-specific?
The business terms of the program will vary depending on the MLS’s goals and the other considerations discussed in this post.
Draft terms and conditions
Most MLS photographer programs involve the photographer signing an agreement to participate in the program. A critical part of developing the program is crafting the terms and conditions of that agreement.
- Intellectual property terms: will photographers license or assign content to the MLS and is there a choice? If assigning content to the MLS, is there a license back to the photographer and what are the terms? If licensing content to the MLS, what are the terms of the license?
- Risk balancing terms: warranties, disclaimers, limitations of liability, DMCA safe-harbor-like take-down procedures, and similar risk-reducing measures must be evaluated.
- MLS system access terms: access to MLS data, data use, confidentiality, and security terms should be considered.
- Other general legal terms: term, termination, venue, law, assignment of the agreement, trademark license terms, etc. should be incorporated into the agreement.
The terms and conditions for the program will largely be driven by the MLS’s goals, as well as the features that the program offers.
Launch and operationalize the program
As with any new service, the MLS should consider how it will implement and operate its MLS photographer program. The MLS should consider how it will:
- communicate and promote its program to participants, subscribers, and photographers;
- provide MLS system training to photographers;
- onboard photographers, including executing and recording agreements with participating photographers;
- deal with potential issues, such as conflicting agreements between photographers and participants and subscribers; and
- assess and evaluate the program.
Maintaining an MLS photographer program will necessarily require MLS resources, so we recommend that an MLS consider the operation of the program to help better ensure its success.
Takeaways
There will be other considerations and details that will need to be fleshed out as a program is developed. So the above list should not be considered exhaustive. And depending on the MLS’s perspective on the above, an MLS photographer program might not be a good fit for a particular MLS. This post provides a high-level framework for thinking through different aspects of the development of an MLS photographer program.
We think that the development and implementation of an MLS photographer program can be beneficial for many MLSs, but first an MLS will want to make sure it has considered the different aspects of their new program so that it will help the MLS achieve its goals.
Thanks for reading!
Camille