Reminder: Steer Clear of Photo Copyright Challenges

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noun_693316_ccHere’s an easy New Year’s resolution for real estate professionals: only use property listing photos that you took yourself or that you’ve secured the proper rights to use.

Copying photos from other listings, or taking them from the web (whether from real estate websites or any other online source), could lead to copyright claims and payment demands from the entities that own them.

The safest way to make sure that you’re safe, of course, is to take your own photos. But if you must hire a photographer to take photos for you, please make sure that you have secured all the rights needed in writing to use the images (in the MLS as well as for syndication for display on the web). NAR provides sample agreements that you can use.

Of course, these issues extend beyond listing photos to photos used on agent and broker websites, in promotional material, and elsewhere. The simple rule of thumb: “If you don’t know where the photo came from, don’t use it.”

MLS Rules Reminder

As subscribers to the MLS and users of the REsearch system, you are bound by the  MLS Rules and Regulations. Section VII covers licensing and copyright, indemnifying HIS from claims of copyright infringement. This section also includes sample language that you can use when engaging a photographer to take listing photos.

Our rules document was last reviewed and updated by the HIS Board of Directors in September 2016, and is worth reviewing periodically:

http://hawaiiinformation.com/REsearch/IDX/mlshawaii/forms/MLSRules.pdf

Image Owners Enforce Copyright

There is a whole industry built around acquiring and selling the rights to use images and threatening legal action and demanding settlements from anyone who uses them without permission. Photo licensing firms have sophisticated tools that allow them to scour the web (and even archived older versions of websites) to find their licensed images.

And under copyright law, the company or person who displays the photo or image on their website (regardless of who put it there) is the one liable for unauthorized use. This means the situation for Realtors gets exponentially more complicated if an unlicensed photo is uploaded to the MLS with a listing, and is then displayed on dozens of other real estate websites.

Learn More:

Retro camera icon by Tinashe Mugayi from the Noun Project.

Clarifying Revisions to the SLAA

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As our On-Line Subscriber License and Access Agreement (SLAA) Acceptance Program continues, we’ve received several questions regarding the copyright options that it presents. We’d like to take this opportunity to provide further context and address these concerns.

This acceptance program is similar to the one we conducted back in 2013, which also asked members to agree to the SLAA to continue to use the service. The current SLAA revisions were driven primarily by updates that the National Association of Realtors made to its own model guidance for MLSes, with which HIS endeavors to remain in alignment.

NAR MLS Policy Statement 7.85 emphasizes that participants minimally obtain proper licenses so that they can, in turn, grant the MLS a license to use the photos that they contribute to the service.

However, some members have raised concerns that the SLAA turns over the rights to, or provides a license for, all of their content (including photos) to HIS, allowing HIS to do whatever it wishes with it.

We want to assure our members that HIS’ use of its participants’ photos are ultimately subject to restrictions under NAR’s Policy Statement 7.85.  Under this policy, HIS’ use is limited to “storage, reproduction, compiling and distribution of listing and listing information to the extent necessary to fulfill the defined purposes of MLS.”

In the event that HIS would seek to use its participants’ photos for any unrelated purpose, it must provide the listing brokers adequate prior notice of its intended use and give them the opportunity to affirmatively withhold their consent for that use.  There are no plans currently for any such use.

HIS has always been in compliance with this policy, and it is not its intention to deviate from it.

HIS prides itself on giving its brokers better control over their listing information. For example, we introduced the Syndication Dashboard last year, an industry-leading initiative that allows brokers to choose which specific third-party sites should receive their listings.

We understand that many of our members incur a lot of expense for their listing photos and that they entrust HIS with their care and handling that we greatly respect and appreciate.

For Principal Broker Subscribers (PBS) who have not yet accepted the SLAA on-line  and have not yet selected an option governing their contributed content: If you do not make a selection by September 15, 2016, acceptance of the SLAA and Option II will be automatic. To reiterate, Option II means that you wish to grant a license to HIS for the use of your content, and not assign ownership of the content to HIS. Note that under Option II, HIS will not include your content in its copyright filings.

Please note that PBSs are able to change their option selection at any time.  It will just involve the completion of a new SLAA form.

If you have questions about this policy or how we are using your photos, please do not hesitate to contact Diana Haraguchi, VP of Administration by calling 1-800-628-3121 ext 172, by email to Diana@HiInfo.com

Mahalo!

SLAA Program Reminder

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Just a reminder that starting September 1, 2016, you will see a Subscriber License and Access Agreement (SLAA) acceptance window when you login that will ask you to accept or not accept the SLAA.  Details about the program were provided in a notice sent to all MLS subscribers on August 15, 2016, as well as a follow-up notice.

slaa-1If you need more time to review the SLAA, there will be a selection available that will allow you to postpone your selection until September 15, 2016.  However, you will be presented with the acceptance page each time you login until you make a selection.  If you choose notto accept the SLAA, your service will terminate on September 16, 2016.  If you do not make a selection by September 15, 2016, HIS shall assume that you accept the SLAA, even in the event that you do not login at all during the on-line acceptance program.

Principal Broker Subscribers (PBS) will be asked to make an additional selection in regards to the intellectual property rights for the content they and their affiliated subscribers contribute to the service.  There were recent revisions to the language in the agreement for these options that were shared with you in our August 20, 2016 bulletin.  If a PBS logs in during the on-line acceptance program, but does not make an Option selection, HIS shall assume that he/she selected Option I.  If a PBS does not log in at all during the on-line acceptance program, HIS shall assume that he/she selected Option II.

Should you have any questions, please feel free to contact Diana Haraguchi, VP-Administration, by calling 1-800-628-3121 ext. 172 if calling from the neighbor islands, or 599-4224 ext. 172 if calling from Oahu. You may also send an email to Diana@HiInfo.com.

More Information on the SLAA Program

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We received a few responses from members to our August 15, 2016 notice announcing the launch of the On-Line Subscriber Agreement Acceptance program.  They were interested in accessing a copy of the revised Subscriber License and Access Agreement (SLAA) that they could review before the launch of the program on September 1, 2016.  They were also interested in seeing the specific revisions to the agreement.

For those of you who wish to start reviewing the Subscriber License and Access Agreement (SLAA) before the launch of the program, you may access the SLAA by clicking on this link:  SLAA – v2015-07-28.

The current SLAA is always accessible on the REsearch Login screen under IMPORTANT RESOURCES.  Look for the link called “MLS Subscription License & Access Agreement“.

Revisions were made on Page 3 of the agreement.  They are shown in the red-lined excerpt from the SLAA below.  Note that only the Principal Broker Subscribers (PBS) make the selection of Option I or II, and his/her selection applies to all of his/her affiliated subscribers.

The revisions to section (c) below apply to Associate and Support Subscribers.  These were made to make their assignment and or license of their contributed content to HIS consistent with that of their respective PBS.  All subscribers must at least grant HIS a license for the use of their contributed content.

These revisions to the SLAA were necessary to be consistent with NAR revisions to their MLS Policy Statement 7.85.  We announced these revisions in a bulletin we sent out in May.


6.  Intellectual property
If  Subscriber is a PBS, PBS Election regarding copyrights in Subscriber Contributions.  If Subscriber is a PBS, Subscriber must elect from the following options.  If no election is indicated, then Subscriber is deemed to have selected Option I.

OPTION I
(a) Assignment from Subscriber.  Subscriber hereby unconditionally assigns to HIS all right, title and interest, including all righttitle and interest s under U.S. and international copyright law, in the Subscriber Contribution, including, without limitation, any copyrights therein under U.S. and international copyright law; Subscriber warrants that it has the authority to make this assignment. HIS agrees during the term of this Agreement not to license or distribute the Subscriber Contribution to any third party that is not a real estate brokerage or appraisal subscriber to the HIS Service if Subscriber has indicated in writing its desire to withhold the Subscriber Contribution from such third party. Subscriber acknowledges that once it has made the election agreeing to this section, all copyrights in all portions of the Subscriber Contribution, whether submitted prior to or after executing this Agreement, shall irrevocably vest in HIS.

(b) HIS Obligations. HIS hereby grants to Subscriber a non-exclusive, perpetual, world-wide, transferable, royalty-free, license to reproduce, prepare derivative works of, distribute, display, perform and license (including sublicenses through multiple tiers) the Subscriber Contribution and those portions of the HIS Database relating to Participant’s listings. HIS shall secure the rights of Subscriber hereunder by obtaining assignments and licenses from Subscriber Affiliates and others as necessary; HIS shall make quarterly registrations of the copyrights in the HIS Database, including the Subscriber Contribution; HIS shall employ reasonable efforts to detect and hinder third parties using the Subscriber Contribution without Subscriber’s permission.

OPTION II
(a)    License from Subscriber. Subscriber hereby grants to HIS a non-exclusive, perpetual, world-wide, transferable, royalty-free license to reproduce, prepare derivative works of, distribute, display, perform and license (including sublicenses through multiple tiers) the Subscriber Contribution. Subscriber warrants that it has the authority to grant this license. HIS agrees during the term of this Agreement not to license or distribute the Subscriber Contribution to any third party that is not a real estate brokerage or appraisal subscriber to the HIS Service if Subscriber has indicated in writing its desire to withhold the Subscriber Contribution from such third party.

(b)   HIS has no obligations to protect. Subscriber acknowledges that: (i) HIS makes no grant of license or assignment to Subscriber of any rights in the HIS Database except as set forth in Section 6(e); (ii) HIS will make no effort to register the copyrights in the Subscriber Contribution, and Subscriber will be responsible for all costs and efforts associated with registration; (iii) timely copyright registration is a prerequisite to suing a copyright infringer, and is necessary in order to obtain certain remedies available under the U.S. Copyright Act; (iv) HIS will employ no efforts whatsoever to detect or hinder third parties using the Subscriber Contribution without Subscriber’s permission; (v) HIS will make no effort to secure for Subscriber the right to use copyright works created by Subscriber Affiliates or third parties.

(c)    If Subscriber is an Associate Subscriber or Support Subscriber.  Depending on whether Subscriber’s PBS or PAS has selected Option I or Option II above, the following terms shall apply:

(i)   If Subscriber’s PBS or PAS has selected Option I, Subscriber hereby unconditionally assigns to Subscriber’s PBS or PASHIS all right, title and interest including all rights under U.S. and international copyright law, in the Subscriber Contribution.  To the extent that Subscriber Contribution has also purported to assign its interests in the Subscriber Contribution to Subscriber’s PBS or PAS, the assignment in this paragraph is null and void. To the extent that Subscriber does not possess the rights to permit the foregoing assignment, Subscriber hereby grants to HIS a non-exclusive, perpetual, world-wide, transferable, royalty-free license to reproduce, prepare derivative works of, distribute, display, perform and license (including sublicenses through multiple tiers) the Subscriber Contribution. Subscriber may use the Subscriber Contribution only as necessary to achieve the aims of Subscriber’s PBS or PAS unless Subscriber’s PBS or PAS provides otherwise.

(ii)   If Subscriber’s PBS or PAS has selected Option II, Subscriber hereby grants to HIS a non-exclusive, perpetual, world-wide, royalty-free license to reproduce, prepare derivative works of, distribute, display, perform and license (including sublicenses through multiple tiers) the Subscriber Contribution and those portions of the HIS Database relating to Subscriber’s listingsassigns to HIS all right, title and interest, including all rights under U.S. and international copyright law, in the Subscriber Contribution.  To the extent that Subscriber has also purported to assign its interests in the Subscriber Contribution to Subscriber’s PBS or PAS, the assignment in this paragraph is null and void.  HIS grants to Subscriber a non-exclusive, perpetual, world-wide, transferable, royalty-free license to reproduce, prepare derivative works of, distribute, display, perform, and license (including licenses through multiple tiers) the Subscriber Contribution.

(d)   Warranties.  Subscriber warrants that it has the authority to make all assignments and licenses set out in this Agreement. Subscriber further warrants that (i) the Subscriber Contribution does not infringe on the copyright or other intellectual property rights of any third party; and (ii) Subscriber has the written consent of any party necessary to provide the Subscriber Contribution to HIS. If the Subscriber is a PBS or PAS, he/she has the authority to bind the PBS’s or PSA’s Subscriber Firm to the terms of this Agreement.


Should you have any questions, please feel free to contact Diana Haraguchi, VP-Administration, by calling 1-800-628-3121 ext. 172 if calling from the neighbor islands, or 599-4224 ext. 172 if calling from Oahu. You may also send an email to Diana@HiInfo.com.

Mahalo!

On-Line Subscriber Agreement Acceptance Program

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On-Line Subscriber License and Access Agreement (SLAA) Program begins September 1, 2016.

Members will be prompted to accept the current agreement upon logging in.

Beginning September 1, 2016, when you log into REsearch, you will be asked to confirm your acceptance of the most current version of the Subscriber License and Access Agreement (SLAA). Acceptance of the SLAA assures your continued use of the system. Through this login process, our system will be able to gather the technical acceptance of all users to the agreement. Future changes to the SLAA will prompt similar notices on an ongoing basis.

For most users, there have been no substantive changes to the SLAA except for changes required as the result of the revisions by the National Association of Realtors® (NAR) to its MLS Policy Statement 7.85 in regards to the authority of subscribers to license their listing content to the MLS.

Details about the SLAA On-line acceptance program

When you log into REsearch, a pop-up window will appear as shown below. You will be asked to check off one of the boxes indicating whether you accept the SLAA or not. If you would like more time to review the SLAA and would like to postpone making a selection, there will be a selection available that will allow you to make your selection later. However, the pop-up window will appear each time you log in, until you make a selection.

slaa-1

If you do not make a selection by September 15, 2016, even if you don’t log in to the system by this date, we will assume that you accept the SLAA.

If you indicate that you do not accept the SLAA, then we shall assume that you have no interest in continuing the use of the service and your access will be terminated at the end of day on September 15, 2016However, if your PBS has accepted the SLAA, he/she will be notified of your selection to not accept the SLAA. You may not terminate your service unless you are inactivating or terminating your license or if you transfer to an office that does not subscribe to the MLS.

If you don’t make a selection by September 15, 2016:

In the event that a subscriber logs in and does not make a selection or does not log in at all during the SLAA on-line acceptance program period by September 15, 2016HIS shall assume that the subscriber accepts the SLAA.

Principal Broker Subscribers receive a different notice.

Principal Broker Subscribers will see a different SLAA acceptance page when they log in. Theirs will require an additional selection regarding their contributed content to the service.

For additional information on this program, click here.

Should you have any questions, please feel free to contact Diana Haraguchi, VP-Administration, by calling 1-800-628-3121 ext. 172 if calling from the neighbor islands, or 599-4224 ext. 172 if calling from Oahu. You may also send an email to Diana@HiInfo.com.

Mahalo!


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