The Best of the Legal Hotline: The Other Guy

What happens to you if he didn't get it right?


 Tracy Rucka  |    May 09, 2017
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This hotline article looks at how taking shortcuts can get a REALTOR¬ģ in trouble. When it comes to listings in the MLS, there are several aspects of listing content that may be protected by federal copyright law including photographs, drawings, video tours, and even some original and unique property descriptions or remarks. If you copy someone else‚Äôs information, you may engage in copyright infringement or incur liability for misrepresentation if the information is wrong. Don‚Äôt be a copycat.

Copying MLS information

A broker is reviewing her agent’s new listing in the MLS. When the broker asked the agent about some of the information, the agent said he used the former listing agent’s measurements, lot size and square footage and entered them into the MLS for the new listing. The agent did not take his own measurements. What risks are there for this sloppy practice? 

A Wisconsin licensee can be found liable to a buyer for inaccurate statements made by the broker that appear to the buyer to have been made from the broker’s own personal knowledge. In Wisconsin, the law provides that an inexperienced buyer should be entitled to rely on the factual statements made by a professional. A licensee who copies information from a previous listing could be liable for any mistakes or misinformation obtained from a previous listing. 

What if an agent obtained information from the municipality or the seller? Is that information still subject to scrutiny? 

The agent should attribute the source. When a broker receives data from the seller, the city treasurer‚Äôs office, or another third party and restates the information in the MLS data sheet or in other advertising as if it were fact, the broker may be responsible for the accuracy of the information. Accordingly, REALTORS¬ģ are recommended to specifically attribute data used in advertisements, such as acreage, square footage and assessed values, to its source, and/or use general disclaimers. Disclaimers may not, however, provide certain and absolute protection in all cases.

Using another broker's photographs

Can agents steal or use photos from an expired listing in the MLS?

Photographs are specifically subject to copyright law. Copyright protection exists from the time a work, such as a photograph, is created. There is no requirement to register the photograph, and reproduction by anyone other than the creator ‚ÄĒ without the creator‚Äôs permission ‚ÄĒ is a violation of U.S. copyright law. The copyright of the work immediately becomes the property of the author, here the photographer/agent, who created the work.¬†

Once a photograph or property description is entered into the MLS, the terms of use of the MLS allow limited use of the photographs by other MLS participants and subscribers. MLS terms do not, however, allow copying for future listings or the advertising of sold property.
The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do, and to authorize others to do, the following: 

  • Reproduce the work.
  • Modify the work.
  • Distribute copies of the work to the public by sale or other transfer of ownership, or by rental or lease.
  • Display the copyrighted work publicly.¬†

Anyone who violates any of the exclusive rights of a copyright owner is an infringer and may be liable for damages. Courts also have the power to issue an injunction to prevent or restrain copyright infringement.

What about using other photos found on the Internet?

Do your homework. Just because you can copy an image does not give you permission to use it. The risk is real, and there are folks out there looking for violators of copyright laws. If you copy and paste an image, information, or excepts of poems or books without the permission of the photographer or author, you run the risk of violating copyright. Some photographers and authors engage services to search the Internet for unauthorized use. Dubbed ‚Äúcopyright trolls,‚ÄĚ these services search for copyrighted images on the Internet and demand monetary compensation when they find websites where the site owner does not have permission to use the images. A broker may receive a demand letter asking for monetary damages and a request to cease and desist the use. Although this is a cottage industry negotiating a fee to forgo a copyright infringement lawsuit, it is the broker‚Äôs misuse of images that creates the initial risk.¬†

Who sold it?

An agent would like to send out a mailing that lists the properties the agent sold last year, including listings from other firms. Does the agent need permission from the other REALTORS¬ģ to do this? Does the agent need to take his own photos of someone else‚Äôs listing that agent sold?

Standard of Practice 12-7 previously limited the use of the word ‚Äúsold‚ÄĚ in advertising to the listing broker, but now Standard of Practice 12-7 provides that ‚ÄúREALTORS¬ģ who participated in the transaction as the listing broker or cooperating broker (selling broker) may claim to have ‚Äėsold‚Äô the property.‚ÄĚ The references to cooperating brokers in this standard include selling brokers, or subagents, and buyers‚Äô brokers.

Accordingly, there may be two different brokers claiming to have ‚Äúsold‚ÄĚ the same property: the listing broker and the cooperating broker. The selling broker would not need the listing broker‚Äôs or the seller‚Äôs permission to make the claim that the property was sold after the closing.¬†

As mentioned, use of photos in the MLS is limited to the authorized uses and does not automatically allow for use in advertising sold property. The fact the photo was in the MLS does not grant unfettered uses. The agent may wish to check with the local MLS to what the terms of use and rules are applicable to photography appearing in the MLS. When it comes to photographs, photographs are protected by federal copyright law. The broker would need to obtain consent to use another licensee’s photograph or take new ones for the contemplated advertising.

Resources

Tracy Rucka is Director of Professional Standards and Practices for the WRA. 
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