Uh Oh! Your IDX Used My Copyrighted Photo— Now, Pay Me $800

Under U.S. copyright law, someone owns almost all the photos, writings, drawings, music, printed material and videos on the internet—and people who don’t hold the copyright to those things cannot use them without permission.

In real estate, most brokers and agents already know this. And while a handful may break the rule now and again on the theory that they won’t get caught, they will, eventually. IDX data feeds provide a unique challenge within the industry. Agents can host an IDX data feed on their website, but they can’t control the data. What happens if a photographer claims use of the photo is illegal on your website, yet you have no control over that piece of content?

A Florida Realtor® recently received a demand letter from a photographer saying that a photo appearing within their IDX feed was copyrighted, and they did not have permission to display it. The writer demanded $800 from the Realtor, who called the Florida Realtors® Legal Hotline.

There is a process you can institute to protect yourself from violations within your IDX feed. It is a safe-harbor provision under the Digital Millennium Copyright Act (DMCA). Under the DMCA, you, as the ‘service provider and/or website provider,’ can take five steps to protect yourself if you are republishing images.

To qualify for safe harbor, brokers and agents must:

• Not have actual knowledge of the infringing content.
• Be unaware of the facts or circumstances from which the infringement is apparent.
• Not receive any financial benefit directly attributable to the infringing activity.
• Act quickly to remove the infringing content when notified.
• Provide a way for receiving notice of the infringing content. Register a person with the U.S. Copyright Office as the designated agent to receive notices about infringement, and post that person’s name, address, phone number and email address on their website.

The requirement doesn’t apply only to a broker’s website. If a broker’s individual agents host their own websites, the broker should make sure each website is independently registered with the U.S. Copyright Office.

“The statute requires each website to register a person or entity that will receive notice of alleged infringement, referred to as a ‘DMCA /Service Provider agent,’” says Katie Johnson, general counsel and chief member experience officer with the National Association of Realtors® (NAR). “The Copyright Office form is set up such that one person or entity can be the agent for multiple websites by specifically listing each website on the registration form. Therefore, to be fully compliant with the statute, you must list each of the websites for which you want to act as DMCA agent.”

“The first line of defense is to take your own pictures or hire someone to take pictures for you,” says Caruso. “If you use online images, pay the licensing fees to ensure that you comply with the law. If you work with a web developer, consider inserting language into your services agreement that indemnifies you in the event that the developer provides an image that infringes on someone’s copyright.”

Your terms of use

“Your website should clearly state what someone who suspects a copyright violation should do,” Caruso says.

NAR recommends that the following information should appear on every Realtor’s website:

If you believe that your intellectual property rights have been violated by [brokerage name] or by a third party who has uploaded content on our site, please provide the following information to the [brokerage name]-designated copyright agent listed below:

a. A description of the copyrighted work or other intellectual property that you claim has been infringed.

b. A description of where the material that you claim is infringing is located on the website.

c. An address, telephone number and email address where [brokerage name] can contact you and, if different, an email address where the alleged infringing party, if not [brokerage name], can contact you.

d. A statement that you have a good-faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent or by law.

e. A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the owner’s behalf.

f. Your electronic or physical signature.

[Brokerage name] may request additional information before removing any infringing material.

[Brokerage name] may provide the alleged infringing party with your email address so that person can respond to your allegations.

[Brokerage name] has registered a designated agent with the Copyright Office pursuant to 17 U.S.C. 512(c). If you believe your copyright material is being used on this site without permission, please notify the designated agent at:

[Brokerage’s Designated Agent name, address and contact information].  

Meredith Caruso is Associate General Counsel for Florida Realtors®.