*I am not an attorney and nothing in this post is intended as or should be taken for legal advice.
In March of this year a South Central Kansas MLS member received a letter from Getty Images alleging infringement of copyright on her website for displaying a photo that Getty holds the copyright for without a license and demanding a settlement sum. The demand letter included a screen shot of the member’s website showing the copyrighted image being displayed. The recipient of the letter began scouring her website looking for the image and found a listing photo that matched the copyrighted image in the IDX feed on her website. The member contacted the MLS about the situation and our crash course in copyright law and how it relates to IDX displays began.
We quickly learned that copyright infringement is a “strict liability” violation, meaning a person can be found liable even if they had no knowledge that infringement occurred. In the case of IDX, anyone displaying a copyrighted image on a website without a license from the copyright holder could be infringing on the copyright and liable. Furthermore, the liability for infringement does not disappear when someone becomes aware of an infringement or possible infringement and removes the copyrighted image.
Our MLS Rules and Regulations contained a section on uploading images and included language for indemnification for, defense of and holding harmless of the MLS arising from claims made against the MLS related to images uploaded by a Participant or Subscriber. But the Rules language fell short of indemnifying other Participants and Subscribers in the MLS who might have claims made against them for the display of images uploaded by someone else, which was the situation we found ourselves in.
Although the photo at the center of the copyright infringement allegations was removed from the MLS less than 24 hours after the MLS was notified of the first letter, Getty Images had already been busy taking screen shots and an additional 9 letters have been received by members alleging copyright infringement and demanding settlement funds for displaying the image on their IDX website.
The South Central Kansas MLS has since revised our Rules and Regulations to include an indemnification for, defense of and holding harmless from claims made related to images uploaded for all Participants and Subscribers in the MLS. While the revision will not correct the current batch of Getty demands, we hope it will help protect the membership in the future.
Guest post by;
Tessa Hultz, RCE, ePRO
Chief Executive Officer
Wichita Area Association of REALTORS, Inc.
South Central Kansas MLS, Inc.
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