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FOTAG...reasonable and the right thing to do. (1)
- 3. In an effort to address this messy situation, several strategies were proposed by NAR attorneys
for reducing the risk of copyright infringement.
These NAR suggested strategies include:
1. Reviewing and understanding the language in all agreements and how they stipulate
what rights are initially or subsequently granted or conveyed in the flow of listings all over
the internet.
2. Auditing how the photos are actually used by the parties to these agreement.
These suggestions for reducing the risk of copyright infringement are prudent. But this author
believes they are unrealistic. These strategies will not be generally applied by busy Realtors
who are not interested in enforcement or due diligence of copyright matters. Most Realtors lack
an understanding of asset ownership, copyright protection, and conveyance of rights. Many
show a lack of concern for these things as well.
A simple solution to this problem might be borrowed from the entertainment industry. This
alternative strategy is an industrywide Digital Asset Management (DAM) and Digital Rights
Management (DRM). In real estate, this technological and process change would:
1. concentrate the assets in a single database (DAM),
2. register all assets with US Copyright office as a compilation of unpublished photos
(DRM),
3. never license any actual photography files anywhere, but instead allow “streaming”
views of the assets to the websites where the listing photography is desired by the asset
owner and
4. create a unified, independent secondary marketplace for original photography.
Streaming views of photos rather than distributing image files solves most of these copyright
and conveyance issues . The concept of “streaming rather than distributing” is exemplified
nicely by both Netflix and Google Maps. When you order a Netflix movie online or you see a
map on a website, you do not receive a copy of or any rights to the movie or the map. You may
watch the movie or look at the map but you are not granted rights to use, reproduce or distribute
the asset.
“Streaming rather than distributing” needs to be done with listing photos.
Using the Netflix / Google Maps model, the listing photography files are never distributed to any
websites. In this system, a mobile device or computer is simply a player for displaying the
images on a browser. In the context discussed here of DAM and DRM of listing photography,
the assets would remain “unpublished,” an asset class with strong copyright protections and
with strong consequences if such assets are infringed. Additionally, the entire responsibility for
infringement monitoring is simpler because it resides with the single DAM and DRM system.
FOTAG copyrighted material all rights reserved. 3
- 5. MLSs and portals already accommodate such a URL link. Zillow, for instance has a data field
labeled “virtual tour URL.” )
The system would automatically function to incorporate all the strategies suggested by NAR to
protect and control the modified photo. The system would also proactively search for incidents
of infringement on suspect websites. Any successful prosecution of infringement of modified
assets would inure to the benefit of the original photograph’s owner. Thus, even though
modified photos would be owned by the system, the original owner would benefit from the DAM
and DRM functions of the system.
An additional benefit of streaming in this manner is that the streamed content from the URL
could include other information about a listing as well as its photography. This would be done on
the screen space surrounding each photo. The original owner, whether it be the listing agent,
photographer, or FSBO seller, could dynamically modify the stream at any time to include:
1. Up to the minute status changes to a listing thus improving the accuracy of MLS and/or
portal information. This status change would be instantaneous on all websites.
2. The contact info of the photography’s original owner in the event someone wished to
purchase or license original assets from its owner.
3. The advertising message of the real estate professional and/or photographer.
4. Protection of the privacy and security of the homeowner, buyer or seller. Perpetually
displaying interior photos of someone’s home on public websites is generally not desired
by a homeowner. There is plenty of evidence suggesting this practice presents a security
risk of burglary or worse associated with having complete interior and exterior views of a
home online. While this risk may be acceptable while a home is for sale, when the status
changes from “for sale” to “sold,” “withdrawn,” expired,” or “under contract no show,” the
photos should be withdrawn. If photos are streamed, they can be removed from all sites
the moment the status changes.
In summary, this system requires:
1. A large, secure database to vault large asset compilations.
2. A front end interface for original asset owners to upload original photos and to manage
the display of modified assets.
3. A front end interface for original asset owners to upload and manage additional
information.
4. A mechanism for viewers of the URL to contact the owner of original photos if they wish
to purchase or use the original photos. The system would never sell or license its
modified photos.
5. A back end function to watermark and tag modified assets.
6. A back end function communicating with the US Copyright office to register each
modified photo as a piece in the system’s compilation.
7. A backend function to create listing URLs for each set of listing photographs.
FOTAG copyrighted material all rights reserved. 5