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Back in the 80s, Joe Biden was on the campaign trail, a presidential hopeful. It was a tough race that saw one candidate kicked out after his extramarital affair was exposed.
Then came the campaign stop at the Iowa State Fair where Joe Biden delivered a powerful speech.
The only problem was that it was lifted, almost verbatim, from a speech delivered by British Labor Party leader Neil Kinnock, in his run against Prime Minister Margaret Thatcher.
Not only did he plagiarize the man’s speech, but he stole his life story as well, attempting to pass it off as his own, despite his real-life bearing no resemblance at all to Kinnock’s. Needless to say, his campaign ended in humiliation.
Even if you aren’t running for public office, plagiarism is nasty. And, although it’s said that “imitation is the sincerest form of flattery,” this type of imitation is dishonest and a possible violation of the federal Copyright Act.
Real estate copyright infringement is at odds with every real estate agent’s need to instill trust. In fact, it reinforces some of the most persistent real estate agent stereotypes.
Copyright infringement
As an agent, there are lots of opportunities for real estate copyright infringement.
“It is not difficult to imagine a situation where a client provides a real estate professional with a thumb drive containing photographs of the client’s property and asks that the photographs be utilized in connection with any marketing of the property,” theorizes the Arizona Association of Realtors (AAR).
There is a very good chance that the rights to the photos are owned by someone other than the homeowner, such as a professional photographer or even another agent.
“The copyright holder can then recover actual damages suffered or statutory damages under the federal Copyright Act,” the AAR continues.
And, those damages can amount to a hefty sum, “from $750 per work up to $150,000 per work,” according to 17 U.S.C. §504.
Pile attorney’s fees and costs on top of the damages and we’re talking a whole lot of money here.
It’s not just photographs that are protected by copyright, but music, plays, text, and any other creative work.
How to avoid real estate copyright infringement
It’s not enough to link to the website on which you found that really cool article or image. It’s not enough to get verbal approval to use someone else’s work. You must have written permission from the copyright holder.
For instance, my articles here on Easy Agent Pro are owned by Easy Agent Pro, not me. So, you would need to obtain written permission from the powers that be right here at EAP to reuse my work.
Without permission, it’s a violation of the Copyright Act to “use third-party works in your business materials unless those works are in the public domain, or you obtain permission from the copyright owner, and your use falls within the scope of that permission,” according to Chloe Hecht senior counsel with the NAR.
How do you know something is in the public domain? It may be clearly marked as such (some items you’ll find on Wikipedia, for instance). Otherwise, you’ll need to perform research. Generally, a work falls into the public domain if:
- It was first published in the U.S. before 1923
- If it was created “by an officer or employee of the United States Government as part of that person’s official duties,” according to newmediarights.com.
- If first published after 2002, the work will be in the public domain 70 years after the death of the author. If a work is corporate authorship, the time limit is longer.
See the chart at NewMediaRights.org for additional information on how to identify public domain work.
The next stipulation that Hecht mentions is that, for a work not in the public domain, you must get the copyright owner’s permission to use it.
In my work as a writer, I frequently reach out to copyright holders, via email, to seek permission to use a chart or other work I find on websites.
Most are happy to give me permission, in writing, as long as I link back to them from the article or let them know when and where it’s published, or sometimes both.
What about “Fair Use?”
“Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances,” according to the U.S. Patent Office. Read more about it at copyright.gov.
Basically, since the doctrine doesn’t typically cover commercial use, a real estate agent publishing someone else’s article on his or her website without permission most likely would be found in violation of copyright use, despite a Fair Use claim.
“Fair use is less likely if the use deprives the copyright owner of income or a market,” say the folks at the Patent Office.
Real estate copyright infringement and photography
Real estate agents run into trouble most often by the unauthorized use of photographs. Photographers are not at all hesitant to drag people to court for stealing their work.
I once wrote an article about how to take brilliant listing photos. Not only did this article show up on numerous photographers’ websites, but also in Las Vegas’ largest newspaper. In fact, the paper’s head real estate writer put his name on my work.
When I confronted the newspaper’s publisher about the plagiarism, the reporter was fired and he and his wife began telephoning me, incessantly, with threats.
I have yet to take anyone to court, although I have come close. In fact, all of the agents I have contacted regarding the illegal use of my work have pleaded ignorance (or blamed it on an assistant), graciously apologized, and removed my work from their websites.
Many creatives aren’t this kind and many will expect compensation for the use of their work. And, that compensation may hurt. Bad.
I’m not a lawyer and neither are the publishers here at EAP. But if you just have to use someone else’s work, take the time to email the copyright holder first to get permission. Or contact your lawyer to see if it’s cool that you use it without permission. Either way, avoid real estate copyright infringement – it’s a distraction to your business and it can be a costly mistake.
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