September 3rd, 2019 at 10:26 am
Multiple Choice Question: Has Listing Agent #2 violated any rules? Pick the best answer:
A. No.
B. Yes, using the same photos was legal, but a violation of the MLS Rules.
C. Yes, using the same photos was both illegal and a violation of the MLS Rules.
D. It depends.
Answer: Answer D is the best answer. We do not know from the above fact pattern whether Listing Agent #2 got permission from the photographer to use the photos, or whether the photographer even had the authority to give such permission. When hiring the photographer, Listing Agent #1 could have entered into a contract for Listing Agent #1 to acquire the right to use the photos, but for ownership of the photos to remain with the photographer. In that case, both the law and the MLS Rules allow Listing Agent #2 to obtain the right to use the photos directly from the photographer.
Alternatively, however, Listing Agent #1 could have entered into an agreement with the photographer that included a transfer of ownership rights of the photos to Listing Agent #1. Listing Agent #1 could have used C.A.R.’s standard-form Property Images Agreement (PIA) for that purpose. If that had occurred, Listing Agent #2’s use of Listing Agent #1’s photos was a violation of both the law and MLS Rules.
Rule 11.5 of the California Model MLS Rules provides, as follows, what is essentially also a basic restatement of the applicable copyright laws:
By submitting photographs/images . . . to the MLS, the [MLS participant] represents and warrants that he or she either owns the rights to reproduce and display such photographs or has procured such rights from the appropriate party . . . Use of photographs by a subsequent listing agent requires prior written authorization from the originating listing agent or other appropriate party with the legal right to reproduce and display such photographs.
-Thank you to Janet Caminite (Montecito Office Associate Manager) for suggesting this week’s legal tip.
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