Back in 2015, I was writing and speaking about the issue of copyrights, licenses, and photographs. The reason was a case out of Texas called Stross v. Redfin. I served as an expert witness for the plaintiff in that case and learned quite a bit about copyright, photography, and how they affect the MLS and brokerages.
The trial court granted summary judgment in the case, finding for Redfin. That, was that—or so we thought.
Then in April of 2018, the United States Court of Appeals for the Fifth Circuit reversed the lower court and remanded the case, with directions to the trial judge. This is a huge decision with major repercussions for MLS, for franchises, for brokerages, for agents, and for property portals like Zillow as well as for technology companies that work with photographs for any reason.
There are parts of the laws of copyright that are quite unsettled. So much of copyright law was written in the last century, and much of it pretty early in the last century when technologies like the computer were unknown, never mind the Internet and digital photography.
One result is that consumer behavior and therefore business needs change at the speed of technology, but the law does not. It takes years and years for the legal and regulatory environment to catch up to what’s happening on the ground, and often requires expensive and time-consuming litigation before they do change. And of course, sometimes, the laws never change.
The issue of real estate photography and copyright is one example of this lag between legal doctrine and business reality. The industry has been busy trying to catch up with the changes of recent years, and some of the innovations that technology companies, brokerages, and the MLS have implemented are good for consumers and good for the industry. In some cases, those innovations are necessary.
But the law is not something one can ignore because of business demands. Rather, business must navigate around the law, or face consequences that could be severe.
Despite many important developments that happened in April, including the launch of Zillow’s new Instant Offers program in which Zillow will become an investor, and the announcement of NAR ’s S.M.A.R.T. Budget Initiative, the Fifth Circuit decision in Stross v. Redfin is the single most important. It will have the most significant impact on the industry.
In this issue of The Red Dot, we dive deep into photographs, copyright, and the real estate industry.