Why I Use MLS Photos

[DMZwerg]

So if I'm understanding the absolute stance taken by some here regarding the copyright issue, then am I to assume that when a realtor provides a CMA to his seller clients with MLS photos, that they have either: 1) Directly obtained permission from all the respective agents who listed those properties to use the photos in CMAs, or 2) Violated copyright law?

Yes (or probably), IF they are selling the CMAs for money.
If no money changes hands it could be a different story.
Also, the permission may only have to come from MLS, all depending (see below).



Somebody is going to point out that agents distribute client versions of MLS sheets next. Actually, those agent distributed sheets are why most MLS systems have some fine print stating that they hold partial/total rights to the information contained within (even photos). Remember, I mentioned talking to MLS *OR* calling the brokers.

Now then, if you go and read your local MLS rules & regs you will find that a member agent/broker is granted limited rights to print a limited number of copies (note: no money exchanges hands for the copies of the listings) and there is usually a disclaimer that the listing broker can print unlimited copies of the client listings for distribution. That is part of the whole purpose of MLS therefore even if they lock down all the rights if they tried to deny those uses they would be out of business because brokers would not list through them and agents wouldn't rely on them to aid in finding houses.

Appraisers are 3rd class citizens at best for most MLS and appraisal reports often face harsh limitations because they are "selling the information directly" so to speak (which is why some have/had limiters that the appraiser could only include information necessary to support the value).

And the same applies to appraisers? That when we do a retrospective field review wherein clients such as Fannie Mae require full-page scans of the MLS listings of all original sales, reviewer sales, listings, and sometimes all the listings in the CMA-- that we have to seek the permission of each and every agent, whether or not they are still active and available, because the photos are their property and we otherwise violate copyright law?!

Maybe.
Why would Fannie care if you are violating agreements with your local MLS or even copyright laws? the appraiser would be violating them, not Fannie.
Also, as I stated, many MLS have print that they get partial/all copyright on all information entered, their forms, and all photos.

Or maybe, just maybe, we all pay yearly dues and monthly usage fees

No, we pay ACCESS fees. Dues are for membership without which access is denied. Guild structure and fairly typical.

for MLS data, which includes a limited (implied/implicit) permission to reproduce said data in routine reports which serve the entire membership.

Yes, we get limited permission, but to USE the data necessary, not to copy and pilfer whole sheets (or photos) outright and get paid for it.

You cannot tell me that there is no scope for the limited use of MLS photos to provide reliable data to the bona fide parties of transactions upon which the very existence of the MLS is predicated-- realtors, sellers, buyers, lenders, et al.

Listing broker is not limited as he would own the copyright fully if he did not use the MLS.
Agents print sheets in VERY limited quantities and give to clients, but they don't get paid for the sheets, they get paid for selling the house.
Appraisers get paid for information directly and therefore are even more limited. MLS exists to help Realtors (R), not appraisers.

 

[J Grant]

DMZ, far as I know, when an appraiser pays for board access and MLS dues, they have the same access and use of the MLS info including limited use of photos as any other member. I am not a copyright attorney of course but this is my general take on the situation. When I joined the board I do not remember any literature or warnings to get permission for copyrighted photos or the like. Realtors print up CMA's all the time to show potential buyers or other parties sales and listings in area with MLS photos and yes, the realtor profits from it. If a realtor had to ask another realtor every time they wanted to print or reproduce a photo on MLS it would cause chaos and I have not heard of that being the normal course of business.

Probably those agents that wish to copyright photos do so in case a listing expires, they don't want another agent who now takes over the listing just sticking their in a brochure or MLS (though I have seen this, the same photos recycled listing after listing)

 

[DMZwerg]

DMZ, far as I know, when an appraiser pays for board access and MLS dues, they have the same access and use of the MLS info including limited use of photos as any other member.

Access? Yes.
Use? Usually no.

Read your local MLS rules & regs as well as the small print on the listings forms submitted by brokers so you KNOW who controls the IP/copyright on the pictures and full or client printouts of MLS listings in your local area. I have literally seen one local MLS that point blank stated any listing information and images submitted to them was then their IP/copyright (and thus they could legally disburse to members) and that appraisers had VERY limited rights to use MLS information. If I recall that same local MLS suddenly changed how it worded things (or I couldn't later find one of the two documents I originally read) a few months after certain AMCs started demanding MLS listings be included.

I am not a copyright attorney of course but this is my general take on the situation.

Nor am I, but I did actually read my local MLS rules and such in detail, at least three times now, once after a former client demanded I include MLS printouts.

When I joined the board I do not remember any literature or warnings to get permission for copyrighted photos or the like. Realtors print up CMA's all the time to show potential buyers or other parties sales and listings in area with MLS photos and yes, the realtor profits from it.

No, they directly profit from any sale, NOT for doing the actual CMA report. If you have any question about that take the Shorewest sales class taught by the fellow who is also a real estate attorney and ask him directly, or consult with a local attorney. Many states have laws such that a sales agent or broker can charge by the hour, or a percent of sales price, but can NOT charge for individual items.

 

[Alpine]

DMZ,
While few things amuse me more than appraisers acting as lawyers—and arguing absolute stances on law and USPAP while other appraisers argue opposing viewpoints with similar conviction—I actually agree with much of what you wrote.

Which is why, from a legal standpoint, we should all have fled this business long ago. You’d be hard-pressed to find a more unsupported “profession” which is defined by a constant tight-rope walk of client demands, regulations, and legal gray areas. There is growing pressure for appraisers to perform as if they're lawyers, engineers, home inspectors, contractor's, etc. while being paid less than plumbers, rampant peer infighting, and an outright assault by the government meddling which has spawned nothing short of a valuation mafia in the form of AMCs. It’s almost a statistical impossibility to produce a product which is sufficient to warrant compensation (as in paying your mortgage) while able to survive authoritative or legal review. Give the best reports by our most qualified to a lawyer, a state regulator, a peer, or a GSE-rep, and I guarantee you it crashes and burns on some level when held to absolute scrutiny. Simply put, the profession is unprofessional, and it’s imploding.
As pointed out by Jeff Bradford in a recent Live Valuation article, appraisers are mostly in the URAR business, forced to crank out an antiquated product the limits of which are recognized by most users, but which cannot be adequately revised or replaced due to the looming GSE shadow. The result is appraisers daily facing myriad supplements by scores of client users trying to tweak it to suit their demands, few of which are consistently applied, but all of which threaten our ability to comply with the other tweaks generated by our regulatory keepers. It rather gives us hypertension and sends us scrambling to sites like this, wherein we ***** and pontificate and post SOSs into the wind, but achieve little in the way of substantive change.

RE: The use of or access to MLS data, obviously it is subject to interpretation and varies from place to place, because in all conversations I have had with our MLS staff, they have always granted permission to use the data in mainstream industry-standard products, including photos, scans of their copyrighted market trends publications, etc. The worker-bees get it, even if their own counsels might be forced to sue if they were so inclined. The MLS certainly charges us the same dues and fees as agents in our area, so the argument that the MLS functions primarily for the use of agents is a weak one to my checkbook.

On principle, if an appraiser cannot reproduce and distribute important market data from the most prominent national market source to which they subscribe, viz MLS, to the authorized circle of confidential users of the data, then we should all simply boycott the process. In reality, if we did, the sleaze would once again rise to the surface and skim the available profits—which it inevitably does. Welcome to appraising as we know it.

Which brings me to a true story: A couple years back, shortly after the market peak, I was visiting an accountant acquaintance. His 20-something daughter and her friend stopped by his office, and upon introductions, the friend said, “You’re an appraiser?! I was an appraiser assistant for a year, but had to get out of it. The company sent me all over the metro area appraising properties and taking pictures but would almost never inspect them, and they pressured me to hit values. I worked really hard and was good at it, but I couldn’t stomach the moral dilemma.”

Me: “What do you do now?

Her: “I’m an exotic dancer and an escort, and I feel so much more self-respect than I did as an appraiser.” I rest my case…

 

[J Grant]

Surely she makes more as an exotic dancer and escort...

 

[DMZwerg]

RE: The use of or access to MLS data, obviously it is subject to interpretation and varies from place to place, because in all conversations I have had with our MLS staff, they have always granted permission to use the data in mainstream industry-standard products, including photos, scans of their copyrighted market trends publications, etc. The worker-bees get it, even if their own counsels might be forced to sue if they were so inclined.

This is a very important paragraph as you, unlike most people who use MLS photos, have actually asked and been granted permission. That is the difference.

The MLS certainly charges us the same dues and fees as agents in our area, so the argument that the MLS functions primarily for the use of agents is a weak one to my checkbook.

The only problem is that you still do not seem to comprehend what you are paying for. You are paying for access to the information, not necessarily use of the information. Most MLS systems "grant" at least partial use of some of the information to appraisers, but in many areas beyond a few items (pictures, descriptions of the property, comments, room size and type, etc.) most of the information can be found in public records. From that information appraisers can generally extract the data that is necessary for the SCA but using it directly is generally another thing all together. I think most appraisers would understand that it is wrong to cut and paste the text description verbatim into the report, and especially the private comments, because they know it is text and would be plagerism, but would not even think twice about using the pictures, nor including prints or scans of the listing itself (even though most MLS point blank state the forms are copyright). The excuse that others can do it so why can't I also does not scan (like complaining that cops and the military have open carry so all civilians should likewise have it because they pay taxes), because if paying dues meant equal treatment then appraisers should be able to list their own house for sale (in many areas they pay the same rates as brokers).

 

[Terrel L. Shields]

Surely she makes more as an exotic dancer and escort...

might depend upon the quality of your "services"...