WASHINGTON — Make sure you have the rights to any listing content you — or your agents — enter into the MLS, real estate brokers. And be ready to license that content to your MLS.
That’s the message from policy changes approved by the board of directors of the National Association of Realtors (NAR) today.
Why target listing content?
A rising number of lawsuits against real estate companies are focusing on the use of listing photos, including a case brought against Zillow by real estate photography company VHT Inc. that could embroil brokers and MLSs.
The use of listing photos was also an issue in lawsuits against alleged copyright infringer NeighborCity that cost two MLSs millions of dollars.
Last fall, real estate attorney Mitch Skinner of Larson Skinner urged brokers and MLSs to make sure they get the right to license listing data for downstream uses.
What’s changed?
Today, the NAR board revised a section of its Handbook on Multiple Listing Policy having to do with the ownership of listings and listing content.
The revisions “reflect the importance of [MLS] participants obtaining and transferring the necessary licenses for MLS content including property photos provided as part of a listing,” according to NAR’s Multiple Listing Issues and Policies Committee.
They also “reflect the importance of participants granting MLS the necessary licenses for storage, reproduction, compiling, and distribution of listing and listing information, including photos, to the extent necessary to fulfill the MLS’s purpose.”
The committee approved the policy changes on Thursday before the NAR board gave final approval today.
The changes specify that:
- Before submitting a listing to the MLS, the listing broker should own or have the authority to license all listing content to be published in the MLS.
- Brokers cannot be required to transfer ownership rights, including intellectual property rights, in their listings or listing content to the MLS to participate in the MLS.
- But MLSs may require brokers to grant the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information.
Here is MLS Policy Statement 7.85 and how it has been changed:
The listing broker owns the listing agreement. Prior to submitting a listing to the MLS, the listing broker should own, or have the authority to cause license all listing content (e.g., photographs, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to listed property) to be published in the MLS compilation of listing information.
Use of listings and listing information by MLSs for purposes other than the defined purposes of MLS requires participants’ consent. Such consent cannot be required as a condition of obtaining or maintaining MLS participatory rights. MLSs may presume such consent provided that listing brokers are given adequate prior notice of any intended use unrelated to the defined purpose of MLS, and given the opportunity to affirmatively withhold consent for that use.
Participants cannot be required to transfer any ownership rights (including intellectual property rights) in their listings or listing content to MLS to obtain or maintain participatory rights except that MLSs may require participants to consent to grant the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information to the extent necessary to fulfill the defined purposes of MLS. MLSs may also require participants to warrant that they have the rights in submitted information necessary to grant these rights to MLS. (Adopted 5/05, Amended 5/06)
Which MLSs are affected?
NAR requires MLSs owned by Realtor associations to follow NAR MLS policies in order for the associations to remain under the NAR umbrella and keep their coverage under the national association’s master professional liability insurance program, according to NAR’s MLS policy handbook.
The majority of the 800 or so MLSs across the country are Realtor-affiliated. These policy changes go into effect immediately, and MLSs have 60 days to implement them.
The NAR board voted for the changes overwhelmingly without discussion.
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