Is a Picture Worth a $150,000 Fine?

In preparing to list a property, real estate agents often engage a professional photographer to show the property in its best light. Typical contracts for services with photographers grant licensed use to the real estate agent for that specific transaction; any use beyond the specific transaction can result in expensive consequences. For example, based upon a recent event, an agent scoured the Multiple Listing Service (“MLS”) website to use a photo of a local attraction to further the sale of the agent’s listing, costing the agent several thousand dollars. Therefore, reviewing the consequences of using someone else’s intellectual property (such as photos) without securing the necessary licensing in advance is essential.

Local REALTOR associations operate MLSs, and using another person’s intellectual property is most likely a violation of said association’s code of conduct. Pursuant to the code of conduct of one of our local Realtor organizations (the Pinellas Realtor Organization), removal of the infringing photos must happen within two days, or the agent in question will face a fine, be forced to take a remedial class, and a warning letter will be left on the agent’s file for one year.

What are the legal penalties for copyright infringement?

Beyond the enforcement actions by the local Realtor organization, the person who used the photos without authorization may face much more severe consequences in the form of a copyright lawsuit. Photographers may register their photographs with the United States Copyright Office and pursue litigation against agents, brokerages, and any other unauthorized user. Legal penalties for copyright infringement based upon the United States Copyright Act of 1976 are as follows:

  1. Infringer pays the actual dollar amount of damages (often calculated as the profits of the infringer);
  2. Damages range from $200 to $150,000 for each infringement;
  3. Attorney fees and costs paid by the infringer;
  4. An injunction stopping the infringing acts.

How can an agent avoid copyright litigation?

To avoid paying thousands of dollars and spending time in copyright litigation:

  1. Make sure you only use photos you have taken or photos you have purchased the rights to use from the photographer.
  2. Ensure that when a seller owns the rights to the images.

If you have any questions related to this or other listing preparation issues, contact your trusted real estate lawyer.

Sincerely, David Reider, Esq. dreider@berlinpatten.com
David focuses his practice on residential and commercial real property transactions

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