DMCA Safe Harbor Alert for Broker Websites

The Digital Millennium Copyright Act provides some protection to website owners from tiresome litigation when an image or other copyrighted content is found to be on their website.

Before December 31st of next year, you should electronically register your designated agent. Even if you filed before using the old paper method, you must refile electronically by Dec. 31, 2017, or your DMCA Safe Harbor will no longer be in effect.

By now, I think that every website owner has gotten some form of letter from Getty Images or other copyright trolls – and this will continue. In fact, now that the Copyright office allows firms to electronically submit thousands of images for copyright protection, it is likely to cause more copyright claims for photos.

The safe harbor provision works something like this. First, you must have a DMCA notice on your website. WAV Group recommends that you have an attorney review your DMCA and your Terms of Use each year to assure that you are in compliance with current laws. While you are at it, plan to update the copyright on your site to ©2017. Also make sure that you incorporate the National Association of REALTORS® guidance on the Americans with Disabilities Act by adding a statement into your terms of use, like, "If you have a disability that is preventing you from experiencing this website, call..."

The most important part of compliance with the DMCA Safe Harbor is that you pay a fee and designate an agent for any copyright violations. Under the Safe Harbor Act, if you are found to be infringing, the copyright holder will notify you to take it down. If you comply with the notice, the issue should be resolved unless there are extenuating circumstances.

There is a lot more information at copyright.gov.

Many thanks to Mitch Skinner of the law firm, Larson Skinner for the heads up on this!

While you are thinking about copyright, I would also recommend that you review the photography policy at your brokerage. Make sure that you secure the copyright on every photo, or get perpetual rights to use it. Many professional photographers have template agreements that only provide you with the rights to use the photograph during the marketing of a home – which means that you are responsible for getting those photographs off the internet and the MLS.

The best practice is to have a work-for-hire agreement with your agents and any professional photographer that transfers ownership to the brokerage. Put this language in your company handbooks and agent agreements, too.

Of course, you will also want to have licensing agreements in place with the MLS, and any other company that will have access to use the photos.

To view the original article, visit the WAV Group blog.