Intersection of Real Estate and IP Law - remodeling photos - Broker and Agent Liability Traps
So. you plan to remodel your kitchen or living room or backyard and you just can't wait, you want everyone on facebook, twitter and instagram to see what its going to look like. So you go to Google Images, or Pinterest, and swipe a photo and use in your blog or YouTube videos. Harmless right? After all, there was no copyright symbol on the photo (note: there does not have to be). This, of course, can create a big problem when a commercial photographer is using google "reverse image search" or "tineye" app to find their photos online. Once they find a photo hit/match, you get the legal demand letter informing you of the consequences of WILLFUL copyright infringement (and a $30,000-$150,000) legal demand. Not so fun anymore (heck the cost of the home upgrades were less than this, and most people barely had enough money for the remodeling, now this)? Welcome to my world as a copyright lawyer.
1. Do not call the opposing party (often a law firm like Higbee & Associates and others). They have trained staff on their end and probably are "taking notes."
2. Call us to get copyright legal advice. We offer a low priced case review which includes reviewing your demand letter, the photo(s) at issue, and advising you on response strategy. We can also handle the defense for a low flat rate legal fee.
We can research the law firm and the photographer and get a gauge on whether or not you are likely to face a federal court lawsuit for willful copyright infringement. We can help explore defenses such as scenes-a-faire-copyright misuse, fair use and others.
3. Check your general liability insurance. Are you covered for "advertising injury' or some similar phrase? For an additional fee we can review these policies to see if there is coverage, or perhaps "bad faith insurance" if they will not pick up the defense. Insurance companies can be brutal. For real estate brokers and agents, the "errors and omissions" policies should be closely examined to see if there is coverage for the "error" (using a photo without a license) and/or "omission" (failing to give attribution for a "creative commons photo for example). These policies can often be broadly written mandating coverage.
Many insurers will try to deny you just to see if that will "make you go away." This can lead to a bad faith insurance claim, and if so, we can file suit against them.
When you are talking about civil claims as high as 150k plus attorney fees, the policy may be your savior.
Podcast - Listen to Attorney Steve® - Former Real Estate Broker discuss the top 10 copyright liability traps for 2019.
What other types of copyrighted content should you be concerned with?
Broker's need to consider training their staff and new agents on this area of law. We plan to be putting out a video on your YouTube Channel in the near future which will be a broker copyright training video. SUBSCRIBE now, we are closing in on 15k viewers and 2 million video views.
Here are some other hidden copyright liability areas to be aware of:
1. Pictures on your websites and agent websites
2. Videos and other content you are using in your youtube channel
3. Photos including aerial photos used in marketing materials
4. Copyrighted music, tunes, beats, etc. being used in company podcasts
5. Right of Publicity - are you using models, celebrities, or other persons in your marketing materials without "clearing" the photo?
6. Cutting and pasting content from a third party website and using it on your blog to save time.
7. You are basing your logo on an image you bought on FIVERR (only trouble is the anonymous FIVERR user - often in another company), merely sold you an image not of their own creation, and thus infringing on someones else's copyright. Another potential wind up in copyright court. There is also talk of creating a SMALL CLAIMS COPYRIGHT COURT in Washington D.C. See the writing on the wall folks.
8. Stock photos - this is where you ACTUALLY PAY for a photo or image (illustration or vector) but you UKNOWINGLY paid for a EDITORIAL PHOTO. We talked about this sneaky issue in one of my blogs. You have to be VERY CAREFUL, yes, they can come back saying you are exceeding the scope of your license and thus, are a copyright infringer.
9. Sharing copyrighted software (allowing too many people to use it - again, exceeding the terms of the license). Can lead to BIG claims for damages.
10. Your marketing department is using unlicensed FONTS for real estate brochures, signs, etc. A totally hidden legal issue in the copyright world.
11. Using old MLS photos on your listings (photos that were not taken by you or your agents).
SIDE ISSUE: Another big side issue is whether or not your real estate website is ADA accessible. Many lawsuits have been filed.
Contact a California Technology & Photo Infringement Law Firm
We have helped many clients across the United States handle federal copyright infringement matters subject to the admissions of the local federal courts. We have been admitted in all Courts in California, and select Courts in Texas, New York, and Arizona. Call us at (877) 276-5084 or use the form submission on this website. In this very technical area of law, experience matters. We have appeared in over 125 federal court cases. Attorney Steve Vondran is a former licensed real estate broker in both CA and AZ. We know your business.