When I first started in the business fifteen years ago, it was well understood among the brokerage community that one could only advertise the exclusive listings of other agents if they had express written permission to do so. Not only is this a REBNY and Department of State rule, but it’s one that was widely respected among the real estate community at a certain point in time. Now, however, this no longer seems to be the case. Whether this rule is being ignored due to maliciousness or naïveté is a tough question, but I’ve recently learned of some cases that may help to shed light on the issue.
I have heard of a number of lawsuits in which individual brokers are being sued for having stolen photos from both exclusive brokerages’ websites as well as StreetEasy, despite the fact that the images in question were copyrighted through the Library of Congress. This fact is what is now allowing for a lawsuit. The maximum penalty for these thefts is $150,000 per image and the minimum is $750 per image. Within this type of litigation, there is no statutory maximum on the number of photos that one can be charged with stealing and the offenders may be held liable for attorney’s fees as well. One recent instance in the Southern District of New York involved a photo of a building’s exterior that was used without permission and the case ended up in litigation for nearly eight months!
Among the real estate community, it was unprecedented until very recently to sue for copyright infringement in cases such as these. Typically, brokers didn’t even feel the need to copyright their listing photos in the first place. Those brokers that discovered others were stealing their photos would simply ask the offending party to take them down and then forbid them from showing that apartment or any of their other listings. However, in the vast landscape of online real estate listings that exists today, it seems to be a bit more cutthroat, meaning that brokers need to take steps to protect their listings.
Speaking from personal experience, I had a listing in the Lower East Side a few years ago which had an OP on it meaning that the landlord would pay my brokers fee. I happened to find a broker from another company who had stolen my photos and was advertising the listing. I subsequently had her take the photos down and ensured that she would never show any of my listings again. Fortunately, I am in the habit of checking online for this kind of infraction but a number of unscrupulous individuals are able to operate these scams without ever being caught.
Furthermore, the size of the brokerage doesn’t seem to matter when it comes to these scams. Some brokers at large companies have been known to steal from other large companies as well as smaller firms. Likewise, untrustworthy agents from boutique brokerages will nab photos from firms of similar size or from their larger counterparts.
When it comes to the question of whether these matters are issues of maliciousness or naïveté, one clear signal of intentionality is whether watermarks have been altered. Many brokerages have their own watermark on their photos. Thus, if that has been removed, it is much easier to prove that it was no accident.
Ethical brokers can take comfort in the fact that photo-theft offenses are more punishable than ever. On an even larger scale than the litigation of which I have recently learned, VHT Studios, a real estate photography service, sued Zillow last year for copyright infringement of photos and won.
Interestingly, the whole situation of brokers stealing listing photos could be considered a kind of microcosm of the current privacy debate stemming from the Cambridge Analytica scandal. It raises the question of to whom information on the internet actually belongs as well as how difficult it is to track exactly where information goes once it’s been put online.
Although it may have been considered overkill in the past, I would now recommend that brokers copyright their exclusive listing photos through the Library of Congress. Furthermore, it would be prudent to perform regular internet searches for one’s listings to ensure that copyright law isn’t being violated. With the recent confusion surrounding to whom certain photos belong, it’s best to take precautions that will help to protect one’s business from any harm, regardless of whether or not it is intentionally motivated.
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