FOTAG...reasonable and the right thing to do. (1)

Listing photography and Copyright management: A critical look at issues and possible solutions

By:

David Sinclair FOTAG, LLC Cofounder and CEO

Email: [email protected]

FOTAG copyrighted material all rights reserved. 1

A critical look at issues and possible solutions to problems with the current state of listing photography copyright management.

Quality listing photographs are an essential element of real estate listings in this age of internet marketing. Consumer use computers and mobile devices to find listings on the large number of websites that aggregate listings from all over the world. A variety of channels exists to make listing data and photographs available by way of digital feeds. Each time a listing is fed from one entity to another, multiple and serial ownership transfers and/or licensings of the rights to possess and use the photography occur. These transfers or licensings of copyrights grant permission to others to use, reproduce and distribute the photographs. Many of these transfers or licensings occur without the knowledge of the transferee or the licensee regarding what assets or rights have been conveyed. In a legal seminar at the 2015 NAR convention, this messy state of listing photography copyright conveyances was addressed. It is clear that the current situation has resulted in confusion related to what rights were conveyed by whom and to whom. This increases the difficulty of copyright enforcement for misuses and increases the risk of copyright lawsuits. The current situation is illustrated by the diagram below.


In an effort to address this messy situation, several strategies were proposed by NAR attorneys for reducing the risk of copyright infringement. These NAR suggested strategies include:

1. Reviewing and understanding the language in all agreements and how they stipulate what rights are initially or subsequently granted or conveyed in the flow of listings all over the internet.

2. Auditing how the photos are actually used by the parties to these agreement.

These suggestions for reducing the risk of copyright infringement are prudent. But this author believes they are unrealistic. These strategies will not be generally applied by busy Realtors who are not interested in enforcement or due diligence of copyright matters. Most Realtors lack an understanding of asset ownership, copyright protection, and conveyance of rights. Many show a lack of concern for these things as well. A simple solution to this problem might be borrowed from the entertainment industry. This alternative strategy is an industrywide Digital Asset Management (DAM) and Digital Rights Management (DRM). In real estate, this technological and process change would:

1. concentrate the assets in a single database (DAM), 2. register all assets with US Copyright office as a compilation of unpublished photos

(DRM), 3. never license any actual photography files anywhere, but instead allow “streaming”

views of the assets to the websites where the listing photography is desired by the asset owner and

4. create a unified, independent secondary marketplace for original photography.

Streaming views of photos rather than distributing image files solves most of these copyright and conveyance issues . The concept of “streaming rather than distributing” is exemplified nicely by both Netflix and Google Maps. When you order a Netflix movie online or you see a map on a website, you do not receive a copy of or any rights to the movie or the map. You may watch the movie or look at the map but you are not granted rights to use, reproduce or distribute the asset. “Streaming rather than distributing” needs to be done with listing photos. Using the Netflix / Google Maps model, the listing photography files are never distributed to any websites. In this system, a mobile device or computer is simply a player for displaying the images on a browser. In the context discussed here of DAM and DRM of listing photography, the assets would remain “unpublished,” an asset class with strong copyright protections and with strong consequences if such assets are infringed. Additionally, the entire responsibility for infringement monitoring is simpler because it resides with the single DAM and DRM system.


There are no transfers of ownership from the system nor any serial conveyances of any rights whatsoever. Incorporating these DAM and DRM technologies and processes would alter how listing photography rights and ownership are licensed or transferred in the following manner.

In this configuration which incorporates a DAM and DRM system, original owners of the assets upload the photos to the system. The original art is “modified” (i.e., a derivative work is created) in the following manner.

1. It is watermarked. 2. It is resized for best display on screen devices (computers and mobile devices). 3. It is loaded with invisible tracking data.

The original asset would not be stored, assigned to, or transferred to the system. The original owner would retain all original photos and all rights. The modified derivative work would become the property of the system. The system would stream views of these photos to MLSs and the portals where they would serve the purposes of the original owner – marketing the property. The system would do this by creating unique URLs for systemhosted photo websites, each URL being associated with a particular listing. The system would distribute this link to MLSs and Portals as directed by the original owner. This URL would link the MLS or portal visitor to the streamed photography. This unique URL would become one of the pieces of data the listing agent or FSBO seller would upload with their other listing data. No images files would ever be transferred to anyone. (Most


MLSs and portals already accommodate such a URL link. Zillow, for instance has a data field labeled “virtual tour URL.” ) The system would automatically function to incorporate all the strategies suggested by NAR to protect and control the modified photo. The system would also proactively search for incidents of infringement on suspect websites. Any successful prosecution of infringement of modified assets would inure to the benefit of the original photograph’s owner. Thus, even though modified photos would be owned by the system, the original owner would benefit from the DAM and DRM functions of the system. An additional benefit of streaming in this manner is that the streamed content from the URL could include other information about a listing as well as its photography. This would be done on the screen space surrounding each photo. The original owner, whether it be the listing agent, photographer, or FSBO seller, could dynamically modify the stream at any time to include:

1. Up to the minute status changes to a listing thus improving the accuracy of MLS and/or portal information. This status change would be instantaneous on all websites.

2. The contact info of the photography’s original owner in the event someone wished to purchase or license original assets from its owner.

3. The advertising message of the real estate professional and/or photographer. 4. Protection of the privacy and security of the homeowner, buyer or seller. Perpetually

displaying interior photos of someone’s home on public websites is generally not desired by a homeowner. There is plenty of evidence suggesting this practice presents a security risk of burglary or worse associated with having complete interior and exterior views of a home online. While this risk may be acceptable while a home is for sale, when the status changes from “for sale” to “sold,” “withdrawn,” expired,” or “under contract no show,” the photos should be withdrawn. If photos are streamed, they can be removed from all sites the moment the status changes.

In summary, this system requires:

1. A large, secure database to vault large asset compilations. 2. A front end interface for original asset owners to upload original photos and to manage

the display of modified assets. 3. A front end interface for original asset owners to upload and manage additional

information. 4. A mechanism for viewers of the URL to contact the owner of original photos if they wish

to purchase or use the original photos. The system would never sell or license its modified photos.

5. A back end function to watermark and tag modified assets. 6. A back end function communicating with the US Copyright office to register each

modified photo as a piece in the system’s compilation. 7. A backend function to create listing URLs for each set of listing photographs.


8. A back end system to distribute URLs to original owners, to be included with other listing data when uploaded to MLSs or portals.

9. A back end function to remove any nonactive listing photos from that listing’s stream. 10. A back end system that could aim automated search mechanisms to sites that might

have illegally “scraped” or in some other way “stolen” images from their screens. This mechanism would look for images found on such sites that match images stored in the secure database. This back end system would notify system managers of suspected infringement cases.

This system has been designed and built. Contact the author (David Sinclair CEO of FOTAG at [email protected]) for more information.

It’s just the right thing to do!


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FOTAG...reasonable and the right thing to do. (1)