One of the most interesting things about being an expert witness is recognizing how companies can avoid costly litigation. Zillow actually tested the courts in the case of VHT v. Zillow. The facts of the case were reported by Inman News. In summary, VHT filed for copyrig

ht on their images. The copyright was granted. VHT then provided a notification of their filing and requested removal. Zillow refused. VHT sued. The court awarded damages. I think the case is on appeal. This issue is not with Zillow or any other portal, it is about protecting the rights of copyright holders and giving privacy to families that buy homes.

MLS Copyright Challenge

Sometime in 2017, the Library of Congress Copyright Office changed their behavior. They stopped granting copyright to MLSs who were submitting their databases on behalf of their members. They did not deny copyright. They just stopped granting it. They sent a letter to the National Association of REALTORS® indicating that they wanted to have a conversation about the applications. WAV Group participated on the work group. No further action has been taken. I believe that the NAR is working on it, but have not gotten an update. Katie?

If the copyright office is not happy with the process that the MLS is taking with bulk registration, brokers will need to handle copyright independently. Fortunately, Upstream was designed with this intention and brokers can quickly pivot to putting their listings in Upstream to secure the ownership before submitting to the MLS. Upstream was carefully developed to insure that all photos loaded into the system either transfer ownership to the broker or provide a perpetual license to the broker.

The Biggest Problem Is Not Being Discussed

Today’s Cleveland media company WOIO’s headline reads TAKE A LOOK INSIDE LeBRON JAMES’ $23 MILLION LOS ANGLES AREA MANSION. This type of click bait article will drive huge consumer interest. The source of the data for the article is Trulia – and there is no mention of the listing broker, the listing agent, or the professional photographer who probably owns the photos. Trulia is not at fault here. They have buttoned up their terms of use for advertisers and they are granted rights to use the media however they want, – in perpetuity. Moreover, the listing broker indemnifies Trulia for any consequences that may happen as a result of their use of the photos. If you have not reviewed the terms of use with listing syndication, you should do so. The portals do everything that they can to consume your photo rights. Here is a paper about it

But there is a bigger issue here. How do you think that the James family feels right now? They moved because their last home was vandalized with graffiti during the NBA playoffs. Now his young children’s bedrooms are front page news and click bait that will be pasted all over the internet for years. James could have his lawyers call is buyers’ agent and ask to have the photos removed. In doing so, he will learn the problem with photography in real estate. His buyer’s agent has no control over what the seller’s agent does with the photos. Those photos were taken by another company representing another person – the seller. The seller is under no obligation to remove photos when the home is transferred to a new party. The James family – and any other home buying family is in the same predicament. When our industry markets a home for sale, we do not think at all about the privacy of the homebuyer who will take possession of the home. If our industry really cares about home ownership, it will take on this issue.

The fix is easy. Create an industry policy that does not syndicate anything other than the exterior of sold or withdrawn properties. Agents can still access them inside the MLS and though VOW, but take interior photos out of the sold data feeds. As an industry, we should also insist that interior photos are removed from portals.

Let’s step up and do the right thing! Give homebuyers their privacy!