WRITTEN BY BOB HUNT
In a recent release of new standard forms for use by its members, the California Association of REALTORS® (CAR) published form PIA (Property Images Agreement) for photos, video, and other media. It is intended to delineate and clarify the agreement(s) and obligation(s) that are created when a real estate licensee engages a photographer (videographer, etc.) to capture images of a property.
Some might think that the creation of such a form is a solution looking for a problem. Are there really issues that need to be dealt with in these areas? Might this be an example of ‘much ado about nothing’?
There’s at least one California real estate agent who can tell us that this can be some serious stuff. In the recently-decided (July, 2017) case of Adams v. Agrusa(U.S. 9th Circuit Court of Appeals), the agent, Agrusa, was no doubt relieved to receive only a minimal judgment against her for copyright infringement in a situation where statutory damages could have been much higher.
The property in question had first been listed by another broker (Original Broker) who had employed twenty photographs in its MLS and marketing efforts. The Original Broker had obtained a copyright for the photos.
Later, the listing was cancelled and, subsequently, the owner entered into a listing agreement with another broker (Second Broker). The Second Broker assigned the listing to a salesperson (Agrusa) and provided her with photos from the earlier listing to use in her own MLS entry. Apparently, the copyright symbol had been removed by the Second Broker before providing them to the sales agent. Also, the owner posted five of the photos on its own website.
The copyright holder (Original Broker) filed suit against Second Broker, the agent, and the owner for copyright infringement.
There was no dispute that the copyright was valid and that it had been infringed. Statutory damages for copyright infringement can range up to $30,000. Fortunately for the agent, the court ruled that plaintiffs had failed to show that she had knowledge of the previous copyright. It ruled that she was an “innocent infringer” and, therefore, could be subject to much lower liability. The copyright holder was awarded only $250.
I suspect that the more likely copyright infringement in the real estate context would occur when the copyright holder is a professional photographer or other creator of images. The PIA form assumes that. It then provides either (a) that any copyright shall be assigned to the real estate licensee, or (b) that the licensee shall be assigned an exclusive license to “reproduce, distribute, display, prepare derivative works of, and publicly perform the images in connection with the real estate industry…”
The PIA also provides that the parties may agree, or not, to allow the photographer “a limited license to use the images for his or her own portfolio.”
Curiously, the PIA does not address issues of possible concern to the owner of the property. In my experience that is usually the person who has the greatest interest regarding who can use the images and for what purpose. Perhaps that will provide material for another form.