How to Manage and Protect Listing Content

The most popular legal regime used to protect creative works from unauthorized use is copyright law. In addition to copyright law, contract law also plays a significant role in transferring and controlling these rights.

What is a copyright?

Copyright is a form of protection provided under federal statutes to original works of authorship fixed in a tangible medium of expression. It is a means whereby the creator of a valuable work can legally protect his rights in that work and realize the benefits of it. A copyright is secured immediately at the time the work is created. A work is created when it is fixed in a tangible medium of expression for the first time. For example, a copyright in a photograph is created the moment the photograph is developed.

What can you copyright?

A work that is creative, original, and fixed in a tangible medium.

Examples:

photographs
virtual tours
architectural drawings
creative listing remarks
Data and raw facts are NOT copyrightable because they are not original.

What rights does the copyright owner have?

A copyright owner has the following exclusive rights to the work:

Reproduction (copying)
Derivative works (using original work to create something else)
Distribution
Performance
Public display

Who owns the copyright?

The creator (author) of the copyrightable work owns the copyright. However, there are some limited exceptions:

Works created by an employee in his scope of employment are owned by the employer.
Works prepared by a person who has entered into a written agreement prior to commencement of creation are known as a “Work Made for Hire” and are owned by the party commissioning the work.

So who owns the listing content?

Many different people could own parts of the listing content. The creator of the work would own the copyright to that work, unless there was an agreement to the contrary.

Work Owner
Photograph Photographer
Listing Remarks Agent and/or Seller
List Price Seller—NAR instructs that the seller must always establish the list price; agents can aid in this decision, but should never set the list price.
Architectural Drawings Architect
Virtual Tours Creator of the virtual tour

Are copyrights transferable?

Copyrights are transferable. The owner may transfer all or part of the rights to a copyright in a work to another person.

How are copyright rights transferred?

A copyright is most commonly transferred through contract law. There are two popular contractual mechanisms that allow for transfer of these rights, assignments, or licenses. An assignment and a license are entirely different tools. An assignment is similar to the sale of a home, while a license is similar to a lease. Both tools permit another person access and rights in the copyright; however, the extent of those rights differ.

Assignment: Copyright owner retains no rights to the copyright rights assigned because he has permanently transferred those rights.

License: Copyright owner retains the rights, but gives others permission to use some or all of the copyright rights. The copyright owner can limit the use through the license; examples of limitations include duration, and even where or how the copyright work can be used. Additionally, there are two types of licenses available:

Exclusive License: An exclusive license means that only the licensee can use the rights transferred. Not even the licensor can use the rights transferred under this type of license.

Non-Exclusive License: A non-exclusive license permits others, including the licensor, to exercise the same rights being transferred in the license.

The chart below demonstrates how the right to use or own the different components of the listing content are transferred and what rights the new transferees have in the content.

Copyright Owner	Copyrightable Content	Document that Transfers the Content	Type of Transfer	New Owner of Copyright (Assignment) OR Person/Entity Permitted to Use Copyright (License)	Rights Transferred
Seller	Photographs, listing price, listing remarks…	Listing Agreement	License	Broker	Broker may use the copyrightable material and may license the content to other parties for use. Seller still owns the copyrightable content.
Agent	Photographs, listing remarks…	Agent Independent Contractor Agreement	Assignment	Broker	Broker owns the content. Agent no longer has rights to the content. However, Broker may license the content back to the Agent for the Agent to use.
Third-Party Independent Contractor	Photographs, Virtual Tours, Architectural Drawings	Third-Party Independent Contractor Agreement	Assignment	Broker	Broker owns the content. Third-Party no longer has rights to the content.
Broker	Listing Content (photographs, list price, listing remarks…)	Participation Agreement	License	MLS	MLS may use the content and may sublicense the content to vendors, cooperating participants. Broker still owns and may use the content.

Do I have to register my copyright for it to be protected?

You do not need to register the copyright in a work for it to be copyrighted. However, there are advantages to registering your work; for example, registration is necessary before filing a copyright infringement suit and it is also necessary to obtain attorney’s fee. Registration may be made at any time within the life of the copyright. Learn more about copyright registration.

What is copyright infringement?

Somebody infringed my copyright. What can I do?

If you believe someone has infringed your copyright, you should seek legal advice. You may be able to obtain an injunction in addition to civil damages.