This is a topic that has been beat around for some time. I get questions concerning it. The issue is the real estate system and when I am filing against the real estate company, MLS and others involved in the rebranding and distribution of copyrighted images.
Let us say first off that the latest ruling concerning 8 photos for $ 1.2 million dollars in the Morel case is a miscalculation. The others have all settled out of court so the damages far exceed the jury award that the $ 1.2 represents. General theory is that the case ended up over $ 2 million dollars. The rebranding or putting a different name on the images is a violation of the DMCA CMI. I am not getting into the technicalities but the reasonable person standard dictates that the putting of a name on an image indicates permission to use, ownership or claim of ownership with or without the copyright sign to the general public. The Berne Convention that the US is part of removed the watermarking of the images with a visible copyright notice requirement that was once law. There is a government mandated copyright on every thing now when it is created and by putting on a watermark name or formal copyright notice they are circumventing the copyright system. The formal exif information is removed by some sites so the only notice to the public is the name of the MLS or website which implies ownership or permission to use the image.
My images had the MLS put its name on them without my permission; they were used for months after my notice to remove them to the person who distributed them. The updates on the system did not remove them nor did anyone including the realtor take the time to remove them. I had them removed months after being told more than once that they had been removed. The final irony is that after the property sold my duly registered image that was supposed to be removed about a year earlier was used by Move.com on their real estate site as the SOLD image. They reluctantly removed it after a DMCA notice.
It does seem that the cry for a suit against MLSs who use images that they have no clue who they belong to has legs. The terms of service they will scream about does not apply to the original copyright holder in my case as I am not a member and the permission for usage was revoked. Their system needs revamped as has been stated by numerous realtors, homeowners and photographers. The issue comes down to what is reasonable and that is pretty simple to me. If the distribution system is notified that the images are no longer usable it must remove them. The finger pointing back when I communicated with the real estate company, the MLS and the other real estate sites was amazing. The Morel case shows that is not a defense. That system changes the public perception of who owns the images, it puts their name on it, it distributes the images all of which are violations of the copyright in personal images. The idea that they can just hide or claim ignorance is almost laughable. The regulations and laws are really simple, intent is not an allowable defense and putting their name on the images without permission or ownership is illegal.
Of course attorneys for them will argue but deep down they know it is wrong and will eventually bring lawsuits. They make their money off defending or initiating lawsuits not necessarily doing what is right.
Remember, it is not what they say is right or wrong, it is what can be proven in a court of law. In my case, I can prove the notice to remove to the system. I can prove on two occasions, months apart, they stated they had removed the images and had not. The distribution through the MLS and name change is a simple fact of life. The use of the images after the July 2012 time frame was a violation. The idea that once it is on the internet is just an excuse as I got many of them removed from websites on my own in a couple of days. The issue is the willingness to violate the copyrights for profit and hiding behind the “not my fault” claims. Now all parties are not the same in my issue. Some of them are concerned but unfortunately the system distributed my work through them all and the attorneys I have talked have said that that system will by necessity involve all parties from the homeowner who kept updating or renewing the listing information which clearly states they owned the images or had permission to use them and they did not to the real estate sites. It is a complicated case but it is being reviewed as we speak.
I have a simple view on it. All the groups and homeowner made money or generated income using my images after the system was informed in writing to stop using them. Not one time but multiple times. I was ignored. That cannot be allowed. I am not the only one that has had it happen to them in the real estate system by postings on other sites.
Some photographers make their living shooting and selling the images under a work for hire agreement and that is their right. They will have no issue as they do not own the copyright but the agent or broker does. They have to follow the terms of service in the MLS and other systems they use. Private photographers like me have to protect our work from a system that does not account for us or our property.
Hope that sets the record straight for you.
I am not an attorney. These are my personal opinions and general information only. These are not legal advice and should not be used as such.