Last fall, right before the CMLS conference, I wrote a post about the importance of MLSs creating standard license terms for media uploaded or linked to the MLS compilation. There are several MLSs doing this to various degrees already through photography network programs, such as Beaches MLS in Florida, MetroMLS in Wisconsin, CRMLS in California, and likely others (I hope!).
Currently, I believe all of these programs are voluntary for both photographers and agents. The MLS encourages through education and promotion via MLS system changes and other methods the use of certified photographers who have agreed to the standard MLS license terms. In a CMLS Brings it to the Table session I did with Art Carter about a year ago, Art said that the voluntary CRMLS program has been very successful both in signing up photographers and also in agents selecting photographers in the network.
This is awesome news but I wonder if MLSs need to consider requiring license terms for all uploaded media. I think this question is front and center right now because Zillow and CoStar are ramping up their new “Listing Media Services” programs, including photography, floor plan, 3D Tour, and other services. In the case of Zillow, here’s what their FAQ says about the rights agents get in the media delivered:
And Zillow makes clear in the linked terms that they own all the media, including rights to derivative works, etc. The result is that MLSs wouldn’t have rights to retain the photographs after the listing goes off market, depriving it of rights to use the photos in CMAs, appraisals, machine learning, or pretty much anything else.
In the event anyone thinks this is just an arcane legal issue for someone else to figure out, check out the recent lawsuits in which CoStar is suing its various competitors for copyright infringement related to photos. Unless MLSs get license agreements in place with these companies that give them the necessary rights to use the media as part of the MLS compilation, there’s nothing to prevent these companies from suing MLSs for copyright infringement in the event agents upload media from one of these services with restrictive licensing terms.
The listing media services programs from Zillow and CoStar and likely others are just getting started, so now is the time for MLSs to develop programs to make sure the MLS obtains the necessary rights in the media being uploaded to the MLS systems from these systems. As I wrote last fall:
The opportunity for the MLS today is to serve it’s members doing what MLSs do best, namely aggregating and standardizing disparate content. There are many options agents and brokers can choose today for creating 3D scans, floor plans, and other digital content. Aggregating this disparate content under MLS-friendly licensing and quality standards is how the MLS will remain the value engine that makes the market work for years to come.
This can start with establishing a photographer network program like those MLSs linked above have done, and then evaluating whether such programs need to evolve to create standard license terms for all media uploaded to the MLS.