Are you using Online Images Legally?
With Juana Watkins

Juana Watkins: ( Seated at Desk, directly addressing camera)
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 that 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: 

You don’t have actual knowledge of the infringing content. 1. 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.