I just noticed an interesting article published in the Inman News by RCG contributor, Russ Cofano, that provides an interesting perspective on the extent to which a listing broker can copyright a listing (requires a subscription after today).
In a recent news publication, attorney J.T. Westermeier, partner in the firm of DLA Piper Rudnick Gray Cary US LLP, said that copyright owners of property listings content are not subject to compulsory licensing and that brokers can refuse to allow their listings to be displayed publicly by third parties even if the third parties are competing brokers. In Westermeier’s view, NAR’s online listings display policy being challenged by the DOJ is consistent with the broker’s exclusive copyright rights.
Like many of the arguments that have supported the use of copyright laws to protect listing data, I believe that this argument is misguided. First, Westermeier correctly addressed only copyright rights associated with the photographs and the expressive comments to the listing. As we all should know by now, there can be no copyright to the property facts contained in a single listing. In the perfect world, I might agree that a broker could limit the use of copyrighted photographs and listing comments if indeed the broker owned all of those rights. That is when reality sets in and we realize that the multiple listing service/broker/agent interrelationship is anything but perfect.
Russ goes on to say under the current listing arrangement, most agents are independent contractors who have not given up the ownership of their text and photos associated with a listing. While some agents may have agreements with their brokers that gives up their copyright, this practice is not universal (and I assume that the practice is not even common).
If, within a single MLS, there was uniformity that led to the broker owning the copyright in the copyrightable elements of each listing, Mr. Westermeier’s argument might be a good one. The reality is that within most MLSs, and even within many brokerages, there is no such uniformity. Because of this lack of uniformity, the argument of broker copyright to support an MLS listing display policy that applies equally to the entire MLS membership just won’t work.
Exactly how can a group of competitors achieve “uniformity” on one of the terms on which they compete without giving fuel to the Department of Justice?
They can’t, unless such uniformity is reached by independent business decisions of each competitor. This can be very difficult in the context of trade associations that mandate rules for their members because the very nature of the rules-creation process requires some form of concerted action among competitors. Concerted action is one of the key requirements of proving an antitrust violation.
-Russ
The listing contracts for real property in Washington are held by the Broker of each real estate office, not the Agent that obtained the listing. So, unless the photos and the ad copy can be properly construed as being separate from the listing contract, the broker holds any copyright privilege that might apply.
Regarding MLS agreements, the NWMLS in our region has a contract in place with all of its members that allows member brokers to display all NWMLS listings on their websites. There is also an agereement in place dictating that use of the primary photo of a listing cannot be restricted. For example, the exterior photo of a condominium building is frequently reused by competing agents and brokers who have subsequent listings in that building.
~Christopher
Christopher,
Washington law is not unlike most other states relative to the “ownership” of the listing. A listing agreement is personal services contract governed by state law. Copyright of listing data taken in connection with the listing entails rights covered by federal law. The two do not intersect. Saying that since the broker “owns” the right to perform services for a seller and get a commission for those services also means that the broker owns the copyright in copyrightable portions of listing data is incorrect.
Russ
Copyright is governed by federal statute and belongs to an author once he creates an original work in any tangible medium of expression. There are “many rights” contained within a copyright, eg. display, reproduction, distribution etc.
Contract law gives the owner of the copyrighted work the power to dole out the various “rights”, by sale, license or whatever.
So, to say the word “copyright” and then say a broker, agent, MLS, seller, or anyone else has no rights to copyrighted portions by virtue of an exclusive isting is not necessarily correct either– he may have some rights even if he in not the author. You have to examine carefully who created what and which rights were contracted, licensed , etc.
Whomever may “own” a listing, may own, or have a license to, some copyright “right”, eg. display. It’s not so clear cut an answer.
re: individual lisitng facts, i.e 2 br, 2.5 bath etc
Clearly not protected under copyright law as Russ correctly points out. Just no copyright in facts. same for titles and other things.
But…the compilation of facts in a database is a nice cute way ????? not a slam dunk here
this compilation issue will be where the DOJ has some trouble.
Ultimately, I beleive the restriction of access to listing facts may be where the restraint of trade issue is decided.
And one day maybe someone will ask the SELLER what he/she thinks about all this.
3 cents, I expect the seller would be happy if every single agent in town advertised his property in every print ad also, but that is not “allowed” either. Only the listing broker can advertise the listing. If “what the seller wanted” was all that mattered, I could do a two page ad in Homes and Land using any listings I think would get my phone to ring. What do you think of that?
The same “logic” and rules that say I cannot advertise another agent’s listing applies.
Not saying I agree, just shedding some light on why the seller is not the “rule maker” with regard to all of the new issues, nor the old ones.
hmmmm maybe it’s time for “open listings” again? That’s where any agent can advertise it and bring any agent can bring a buyer. Only the person who brings the offer gets paid. Interesting regression, but that would allow all agents to advertise the seller’s house.
3 Cents
I think you misunderstood my post. Rights to use IP and ownership of IP are two very different things. My post indicated to Christopher that the mere fact that the broker owned the listing does not mean broker also owned the IP rights in the listing data. There is no ambiguity here. You are correct that the broker or MLS may have rights to use the copyrighted works but that does not mean ownership. The essence of my article on Inman dealt with ownership rights (and hence the right to preclude use) as opposed to use rights under some license.
Also, compilation copyright is called a “thin” copyright and is subject to attack on many levels. If a MLS attempts to use the compilation copyright as a defense to otherwise anti-competetive behavior, I believe they will lose.
Russ
To Russ;
I do not think I misunderstood you for I agreed with you.
I only wished to add to the discussion by :
1. pointing out that a copyright is not just one right and
2. that having an exclusive listing may allow you some license of a particular right(s) contained within the total copyright, even if you are not the owner of the copyrighted material
The point of my comment was that listings (and access to) concern more than copyright ownership. As a broker I might not care about ownership of a copyright so long as I have a license (permission) to display, reproduce, etc. with regard to promoting a listing.
To Ardell:
What the seller wants is ALL that matters. They ARE the rulemakers. The problem is sellers don’t realize they have the power to control the marketing of their property. Instead, they sign a listing agreement and GIVE this right to the listing broker (at least for the term of the exclusive). So a broker “owns” (controls) a listing only so long as the seller says so. That’s real power baby.
P.S. I also hear that NAR has a Code of Ethics that basically says that brokers owe a duty to their clients. In the case of sellers I take that to mean promote my property for sale. Just becasue the broker, by virtue of the lsiting agreement, got the right to decide where and how often to advertise, does not, in my opinion, mean the code does not apply. To restrict access to the listing may run afoul of the code and a broker’s duty to the seller. What do you think a seller would say if he/she knew the broker was restricting access to the lsiting?
PPS Isn’t NAR trying to get sellers to sign a contract that allows brokers to control listings access online? Why would you need a contract for that? Because NAR realizes who is really in control.