Realtors Targeted for Illegal Use of Online Photos
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Realtors Targeted for Illegal Use of Online Photos


Juana Watkins: You’ve just
secured a waterfront listing. You immediately take photos of
the home, but when you sit down to design
the flier, you realize that it would benefit from some
additional pictures of beaches and waterfront. So, you search the Internet,
find some photos and insert them in the flier. After all, when it
comes to marketing Florida’s sunny properties, showing the
beautiful coastline and surrounding areas is
smart marketing, right? Stop! Before using these pictures
you must determine who owns them. If the
answer is “I don’t know” then do not pass go,
do not collect 200 dollars, do not use the photos. I’m Juana Watkins,
General Counsel of Florida Realtors® Let’s take five minutes
to talk about online photos that you can and
can’t use and why. There is a big
misunderstanding that an image on the Internet is
available for use by anyone. This is not true. The fact that a photo is
on the Internet doesn’t mean you have permission to use it. In fact, downloading photos
without permission of the owner has become so widespread
that companies are enforcing their rights, demanding that
real estate professionals, among others, pay for
illegally using their photos in marketing. Dozens of real estate
professionals have recently received demand letters from
photo licensing companies, such as Getty Images,
claiming illegal use of an image on their website.
The challenge real estate professionals face is that
99 percent of the time, agents are unknowingly using
images they think are free. Beyond receiving demand
letters, real estate brokers and associates in Florida are
actually being sued for copyright infringement. Copyright law is not kind,
and violating the law may carry hefty statutory and civil
penalties. Ignorance and accidents
are not excuses. Development of your website
by a third-party company that selected the images
is also no excuse. If you own the website,
you are liable for the violation. Your website developer may
share culpability, but regardless of who selected
your site’s images, you may be liable. How do you protect
yourself and your business to ensure that you do
not violate someone’s copyright? First, audit your website
and identify all the images you are displaying.
Where did they come from, and how do you know you
have permission to use them? If you cannot confidently
answer these questions with the knowledge and proof that
you have permission to use the images, remove them
until you receive confirmation of permission. What if you already have
a demand letter stating that you are violating someone’s
copyright? Consider consulting an attorney, and
double-check the image in question. Is the photo owned by
the company demanding payment? If it is, remove it. Then, make a business decision
and see if you can negotiate a lower fine. Do not ignore the letter;
usually the demand will increase over time, and
a lawsuit may be filed. There’s another potential
problem. What if the image is on your IDX Webpage?
It is not an image you placed on the page, so how can
you be liable? That is a good point,
and 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 this act, as the
“service provider and/or website provider,” you
can protect yourself if you are republishing images
by making sure: 1. You don’t have actual
knowledge of the infringing This is not a problem,
as you are not the creator of the IDX content.
That is done by the MLS. 2. You’re not aware of the
infringing activity or facts or circumstances that
make infringement apparent. 3. You do not receive a
financial benefit directly related to the infringing activity; 4. You act quickly to remove
the infringing content when notified. This is done by contacting
the MLS and reporting the problem. Also, designate someone
who is the responsible person for all reports of infringing
content. You must register this person with the
U.S. Copyright Office as the designated agent
for notices about infringement and post the designated
agent’s name, address, phone number and email address
on the website. There is a small fee
and the form can be found at
www.copyright.gov. So where do you
post this information on your website? The most common place
is in the Terms of Use. For an example of
a DMCA notice please visit www.realtor.org and
review the Terms of Use. Of course, the first line
of defense is to take your own pictures or
hire someone to take pictures for you. 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 if the developer provides
an image that infringes on someone’ s copyright. Finally, images are not
the only items that are copyrighted: writings, drawings,
music, printed material and videos are also a source
of risk. When using these materials, follow the
same steps to protect yourself.

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