Latest / PropMedia Podcast / AI, MLS, and Copyright Law: Protecting Your Property Media w/ Dan DeSouza

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AI, MLS, and Copyright Law: Protecting Your Property Media w/ Dan DeSouza · PropMedia Podcast

• 0:00
  SPEAKER_00: use it.
• 0:00
  SPEAKER_00: Whether it's the National Association of Realtors or the MLS, they they all say it, you know, you're not allowed to use somebody else's photos.
• 0:08
  SPEAKER_00: But they also at the same time say, but we own everything that's that's put up on our MLS and we can do whatever the hell we want with it.
• 0:15
  SPEAKER_00: Yeah.
• 0:15
  SPEAKER_00: Which you know I've obviously I think a lot of photographers would disagree with at that point.
• 0:33
  SPEAKER_03: Hey I'm Maddie and this is Moses.
• 0:36
  SPEAKER_03: We're the co-founders of pixelmob.com and propmedia.com and this is the Prop Media Podcast.
• 0:42
  SPEAKER_03: We're here to talk about everything around property media.
• 0:44
  SPEAKER_02: Today we get to talk with Dan DeSouza again.
• 0:47
  SPEAKER_02: So we had him on a second time we've had him before talking specifically about copyright and your legal rights with your photography.
• 0:54
  SPEAKER_02: And today we're going to push that a little bit deeper into how those rights relate with MLS systems, with realtors, with portals, with AI, all kinds of things.
• 1:04
  SPEAKER_02: So if you're interested in protecting the rights around your images, then tune in and learn with us.
• 1:09
  SPEAKER_03: So Dan, thanks again for joining us and the second time.
• 1:13
  SPEAKER_03: Yeah we don't get a lot of second visitors, but we had so much interest in uh topics that you brought up last time and we felt there was a lot more conversation to be had around copyrights and uh real estate photographers, uh the rights that they own and how to protect them um with their the media that they create.
• 1:32
  SPEAKER_03: So thanks for being here.
• 1:33
  SPEAKER_00: Well I'm happy to happy to be back and if uh people want to be lulled to sleep with more lawyer talk then I'm uh I'm here to help.
• 1:39
  SPEAKER_03: Let's talk a little bit about AI enhanced photos right off the bat.
• 1:45
  SPEAKER_03: We kind of generally understand the concept that you push the shutter you own the copyright you need to submit that to uh the government through um a copyright process get your copyrights filed and registered.
• 1:58
  SPEAKER_03: But now there's a little bit more of a confusing scenario if you've been uh working with AI tools after the fact there might be some new considerations around what happens with your copyright uh through that editing process.
• 2:14
  SPEAKER_03: So generally any thoughts or wisdom general wisdom around how to deal with AI edited photos?
• 2:21
  SPEAKER_00: You know at its most basic form, what you can what you can believe is AI created you probably don't own at least not the copyrights in it and it cannot be copyrighted.
• 2:32
  SPEAKER_00: The copyright office has come out and squarely said human creator must have a human creator otherwise can't be copyrighted.
• 2:40
  SPEAKER_00: So if it's AI created you know it can't be copyrighted.
• 2:44
  SPEAKER_00: The prop the problem that we face is what does AI assisted mean and just how much you know how much input does the human have to have what I can tell you is you have to disclose to the copyright office if you're registering a photograph, you have to disclose what is AI created versus what is human created.
• 3:04
  SPEAKER_00: So if you remove skyline change the color to blue from red or you know something like that, you have to disclose that and if you don't you could be at risk of either not having your copyright or having it struck later on at some point.
• 3:19
  SPEAKER_00: So I mean the the real question is well how much of that can you do right?
• 3:23
  SPEAKER_00: Like you know if I change the color of the sky what if I add in a dog in the front yard?
• 3:28
  SPEAKER_00: What if I add a swimming pool?
• 3:30
  SPEAKER_00: What if I put aliens in the sky?
• 3:33
  SPEAKER_00: You know I I think I think the answer is at some point you will reach the point where there's more AI input than human input.
• 3:41
  SPEAKER_00: And at that point you probably run the risk of the copyright office saying this ain't good anymore.
• 3:48
  SPEAKER_00: I can't help you.
• 3:48
  SPEAKER_00: But but I think if it's you know a simple uh let me use AI to increase the contrast let me use AI to uh change the color of something slightly uh I I think all of that you can still say the human is still the prevalent author of this and therefore it's copyrightable.
• 4:07
  SPEAKER_03: The line is definitely confusing and even what AI is I mean because if you're using smart tools that are going to automatically straighten the image and remove color cast from the windows and bright orange bulbs and all this kind of stuff.
• 4:24
  SPEAKER_03: Then you have a different level of editing like you're saying that's removing objects and so it has to in paint where things were removed and so it's making up pixels um or like you're saying too if you're doing a uh a twilight image it's generating even though it has the original image as reference good details it's gonna re-render the entire image um pixel by pixel but it's still the original content is it is a confusing line.
• 4:52
  SPEAKER_02: Yeah that line is pretty weird like I was working on a photo last night for a listing and like a one of our virtual twilight tools that uses AI to generate its images.
• 5:04
  SPEAKER_02: I mean it it it does it changes the whole thing like it even this was an error but it like it added lights to the house and and like exterior lights and and things along that line where it does do a pass over the entire image.
• 5:19
  SPEAKER_02: So even though the image is clearly the photo of the front of the house that it was when it started I don't think any pixel was the same.
• 5:27
  SPEAKER_02: Like is it is that correct?
• 5:29
  SPEAKER_03: No but I mean it's complicated it's using a control net to actually like you know it's using the original content but it is generating the entire image.
• 5:42
  SPEAKER_02: So Daniel in a scenario like that where it is doing a kind of a holistic cleanup like the these are things that like people's familiar with I mean this is like an advanced version in in of like the little magic wand tool in your your iPhone or whatever like where you're doing a holistic change to the photo and touches every piece of it does that just invalidate the entire copyright just by running a uh something like that on the photo?
• 6:11
  SPEAKER_00: I I think we're still at a point where if you've created the photograph and you're the one that's running this through whatever AI program or Photoshop or you know whatever it is you're dealing with at that point, uh we're probably still at a point where you qualify as copyright protection uh for the photo.
• 6:31
  SPEAKER_00: You know, as long as you can say I am the author I took this and I ran these edits through I think the copyright office, especially just as a matter of burden I mean when you think about it, they get probably five five million photos and copyright registrations submitted to them every year.
• 6:48
  SPEAKER_00: You can't imagine someone is sitting there saying well you know did Moses really uh you know take this photo of the sky and what did he really do with the shade of blue here?
• 7:00
  SPEAKER_00: You know I think I think if you disclosed AI created my photograph and everything that's in it, I think the office is going to flag it and say we got a problem here.
• 7:09
  SPEAKER_00: But I think for the most part as long as you're still the person hitting the shutter uh I I think there's not a scenario that most people would face that I think the office would have a problem with approving that copyright registration.
• 7:26
  SPEAKER_00: Until like I said it's a completely different photo misrepresenting what the house was in the first place.
• 7:34
  SPEAKER_00: And then you probably run into different issues right I got other real estate challenges at that point.
• 7:39
  SPEAKER_00: Yeah I mean you're you're running into ethical issues at that point of well what what what's the point of my photo if it's to showcase this house and I'm showing something that looks nothing like it, you know, is is my client going to be happy and is the MLS going to accept it at that point.
• 7:54
  SPEAKER_00: Yep.
• 7:55
  SPEAKER_02: Maybe the elephant in the room in this space and it sounds like it sounds like the answer may be clear but I mean a common practice in our industry now is using an AI tool to merge three photos together to get highlights and low lights and stuff like that called HDR blending or there's there's different ways of doing this that's traditionally been done by hand.
• 8:16
  SPEAKER_02: But in the last year and a half there's been a lot of different options to have that done by an AI generated tool.
• 8:23
  SPEAKER_02: So then you're taking three different images and you're combining them into one image um probably the same scenario where literally every pixel is touched in some way by this kind of generative intelligence.
• 8:38
  SPEAKER_02: But the photo is going to typically be very recognizable as the one that you took but it just won't look like any of the three that you took.
• 8:46
  SPEAKER_03: And it's a composite yeah um and I mean we've been doing that for a decade or decades before AI was doing it.
• 8:56
  SPEAKER_02: Yeah just with Photoshop and humans which I presume that doesn't invalidate anything so it seems like this wouldn't but yeah I mean there there's been HDR since long before uh long before AI came in and did this.
• 9:11
  SPEAKER_00: I I I think for the most part uh yes those are three of your photos and you own each of them and so combining them into one whether you did it yourself in Photoshop or whether uh some third party AI software did so it's not going to affect ownership.
• 9:27
  SPEAKER_00: Now I will say uh over the years I've had one lawyer in one case make the argument that a real estate photographer who I think he was sending his work overseas to uh some overseas like editing shop and they were sending him back the the edited versions.
• 9:45
  SPEAKER_00: Yeah the lawyer argued well you don't own you don't own those photos now the the other guys own the photos because you didn't have a work for hire agreement with them or you didn't have something in writing with them as to who the ownership is and you know at least in that case I think the judge rolled his eyes at this guy and was like like like yeah we're not dealing with that like that that just got that just got glossed over and brushed aside.
• 10:11
  SPEAKER_00: I mean my my position is he took the photos uh the fact that he hired someone to do some brush up is not creating a brand new photograph.
• 10:20
  SPEAKER_00: You know you as the author I think the law is pretty clear you own all derivative copies and that's you know edits and cropped versions and whatever it is that you want to do to it.
• 10:30
  SPEAKER_02: But at least one lawyer out there was arguing otherwise as lawyers are wont to do when they're on the wrong side of an issue still argue the other side.
• 10:40
  SPEAKER_02: But they that makes sense.
• 10:41
  SPEAKER_02: I I think my question was more less about the derivative work and more if AI is creating the derivative work if some of that legislation makes the change but it sounds like not in your opinion.
• 10:52
  SPEAKER_00: I I I don't see the difference.
• 10:53
  SPEAKER_00: I mean you know if if I run something through Photoshop and have Photoshop create HDR and and look I'm not uh the expert in this but let's assume there's a button in Photoshop that says create HDR out of these three photos.
• 11:06
  SPEAKER_00: Yeah uh and instead of doing that I use open AI and say create an HDR of these three photos I don't see the material difference right it's not it's not like you programmed Photoshop yourself and you're the one that went in there and you know did all of this so if the Photoshop option doesn't affect copyrightability then I don't see how the you know the AI version of it would as well.
• 11:31
  SPEAKER_03: What rights, if any, do these AI platforms like OpenAI or Google Gemini uh what rights do they assert like I said if any um over these outputs?
• 11:44
  SPEAKER_00: Well I I always recommend check the terms and conditions.
• 11:47
  SPEAKER_00: You know Google I guess the irony here is you can use Google AI to determine what rights other AI has over your photos.
• 11:56
  SPEAKER_00: Yep.
• 11:57
  SPEAKER_00: But but but I actually checked recently I looked at Adobe I looked at open AI I looked at a couple of the different ones that are out there the major ones they they all have pretty clear terms and conditions with an asterisk that's what exists today uh that state we don't assert any ownership right over your outputs you own everything that you put through here uh it's all yours and just yours that's not to say that tomorrow they don't update their terms and conditions and and say but uh we also own this why you know this and that uh what what's interesting is my my son uh he he's into music and he does a lot of composing of music and I think he uses Suno uh which is a big music AI uh that one I took a look at the terms and conditions and the free version of Suno they own the copyright uh the paid version you own everything that's outputted so I think you know unless people are really diving into the terms and conditions you don't really know uh who's owning what but at least in the major platforms that I looked at on at least on the photography side it it seems like none of the major platforms are asserting ownership of the outputs.
• 13:15
  SPEAKER_02: Well maybe this is the age where uh terms and conditions will actually be read.
• 13:19
  SPEAKER_02: In fact I did that a couple of weeks ago I sent a terms and conditions through Claude to have it advise me of whether I was signing anything that was going to be a problem because it was related to a partnership where we're like a Chrome extension yeah like check these terms and conditions of whether they are selling my children into slavery or yeah.
• 13:38
  SPEAKER_00: Although although it's funny what you know AI, ChatGPT or Claude will tell you because I I've had clients like you said a partnership I I've had clients that have an operating agreement for their business that they signed five years ago and uh you know they're updating it today and they're adding a new partner and that's it.
• 13:58
  SPEAKER_00: Nothing else is changing and Claude is telling them do not sign this it's unfair to you.
• 14:03
  SPEAKER_00: I wouldn't sign this and sure and they're like well I can't sign this I'm like well you already did like I don't know like I don't know what to tell you.
• 14:11
  SPEAKER_00: Like five years ago you signed the exact same terms.
• 14:14
  SPEAKER_02: That's fine.
• 14:15
  SPEAKER_02: Can't go back in time right maybe maybe that's the that's the next wave after AI time machines to correct what happened before AI told you what to do.
• 14:23
  SPEAKER_03: Yeah let's crack into a pretty big topic here um the MLS as a copyright battlefield.
• 14:32
  SPEAKER_03: So um I think this is definitely a black box for photographers.
• 14:37
  SPEAKER_03: The MLSs uh make certain claims of copyright ownership when things get uh uploaded into their systems um the confusing part and I don't think anyone really knows where this lands is that they the realtor is often the time or someone on behalf of the realtor or an admin or someone a part of their team is uploading the photos in the MLS and creating the listing and at the point of upload the MLS claims not all but many of them claim copyright ownership of that photo.
• 15:13
  SPEAKER_02: I think I think most of them do that I'm familiar with at least when I've talked about it people around the country there's never been any like oh ours doesn't do that or anything like that.
• 15:21
  SPEAKER_02: They all kind of put a little stamp of like we're allowed to do whatever we want with this photo.
• 15:27
  SPEAKER_00: Yeah I I I think there's there there's a huge conflict when you deal with MLS's because you as the photographer you have a relationship with your realtor client right like you know you you've got your invoice your terms and conditions he signs he signs those he pays you uh you have a contract between you and the realtor and usually hopefully your terms and conditions state uh only you can use this uh don't remove my copyright management information uh so on and so on and and that's a binding contract between the two of you those terms are enforceable between the two of you but then he goes to the MLS and uploads your 50 photos and he agrees to the MLS's terms and conditions.
• 16:11
  SPEAKER_00: And those terms and conditions might be we own everything we can remove any copyright management information.
• 16:17
  SPEAKER_00: We can add our own you know uh beaches MLS or you know whatever the MLS is uh watermarked to it.
• 16:25
  SPEAKER_02: So they could look like Zillow's terms and conditions for uploading photos.
• 16:28
  SPEAKER_02: Yeah.
• 16:29
  SPEAKER_00: Right.
• 16:30
  SPEAKER_00: And and it's strange because there's a conflict between your terms and their terms and they assert those terms over your photos but you don't have a relationship with them.
• 16:39
  SPEAKER_00: Now you know typically under contract law unless you and I have something signed between the two of us then you can't enforce your terms against me.
• 16:49
  SPEAKER_00: You can enforce your terms against the realtor sure but you know I never gave you permission to remove my copyright management information.
• 16:59
  SPEAKER_00: And so I I think that that's a huge issue.
• 17:03
  SPEAKER_00: Now I will say uh every MLS that I have seen does have language that says we own the copyright of any compilation that we put out there.
• 17:16
  SPEAKER_00: Uh we have the right to use that compilation compilation in any way that we see fit.
• 17:22
  SPEAKER_00: And usually I would think the reason they do that is they don't want um you know a bunch of people suing them for Zillow listings and realtor.com and every other Coldwell banker you know site pulls all this stuff out.
• 17:36
  SPEAKER_00: But I you know I think the distinction that should be made is I I haven't seen one yet that says by uploading the photographs you transfer ownership of the individual photographs to me and allow me to do whatever the heck it is that I want to do with it.
• 17:52
  SPEAKER_00: I think they they're all pretty careful with the compilation you know the compilation of photographs and the listing that you have put up you give us a right to display distribute and use that compilation.
• 18:05
  SPEAKER_00: I think if it said you you transfer ownership of each and every photograph and we're free to do with those photographs as we want, I think you'd see a lot more litigation on this issue.
• 18:17
  SPEAKER_00: So the way I interpret that usually at least with the MLSs that I'm familiar with is we have a right to display this listing for this house that has all the text, the pricing information, uh the photographs, the videos, whatever those are and if that winds up on Zillow, if it winds up on realtor.com, so be it we have that right to do so.
• 18:43
  SPEAKER_00: Now obviously yeah I think the question is what if you had a contract this is hypothetical I don't think this would happen but what if your contract with your realtor was I'm giving you the photos and you don't have a right to put them on an MLS somewhere right that would be a lot of sense wouldn't make a lot of sense for the business purposes uh but but there I think you would have a conflict between your terms and the MLS's terms.
• 19:12
  SPEAKER_00: So you know there's two different issues that I think you got to clarify between one is what can the MLS do with my photos versus and this is the one that I think most people in this industry face uh is is the MLS just a sea of freebies uh you know can any realtor go into that MLS pull any photo there from and use it on his listing after the fact even though he's never paid you doesn't have any relationship with you in any way shape or form?
• 19:45
  SPEAKER_00: And I think those are two different issues and you have to address them separately.
• 19:48
  SPEAKER_02: Well there you have another even another actor but even even that doesn't seem totally fair to me in the sense well maybe it's a misunderstanding that I have like it would seem to me that if I created an album the album itself like how it's arranged what I chose to put in it is there's no copyright defense around that so like if I'm Ansel Adams and I'm creating these are my photos of these state parks I can only copyright the individual photos not the the whole work is that kind of what I'm understanding I mean you you you can you can you can certainly do a compilation uh you know the the issue is if I copyright individual photographs then each individual photograph has copyright protection if I copyright let's say a book you know a book of a thousand photos that's in there then typically speaking someone has to copy that book in order for there to be infringement you know if they take three of the photos out of there it's probably not infringement the way the law is written in terms of how you copyrighted that in the first place.
• 21:00
  SPEAKER_00: So yes you can copyright the compendium or the compilation as you as you call it uh but you're probably better off copywriting the individual photographs.
• 21:10
  SPEAKER_00: Interesting.
• 21:10
  SPEAKER_00: Because it because then you know e each and every one that gets taken is a separate act of infringement at that point.
• 21:16
  SPEAKER_02: But that's kind of what the loophole that the MLS is pushing on is they're saying that we're creating something that is unique and new it's a composite of these photos plus this information.
• 21:29
  SPEAKER_02: And so we have a right to do that even if you still own the individual photos.
• 21:35
  SPEAKER_00: Yeah and and you know I I have not seen this come up in a case because for the most part the MLSs are publishing the compilations for listings that exist and they're winding up on realtor.com Zillow, essentially where they should end up pursuant to you know that's what a realtor does.
• 21:56
  SPEAKER_00: Now, you know if an MLS were to come out with
• 22:00
  SPEAKER_03: uh uh buy real estate photos.com and suddenly put up there 10 10 million photographs of your local you know your local area you know hey you want photos of bridges we got photos of bridges you want you know and so on and so on uh I I think you would actually see litigation on this issue where obviously photographers would say what the hell is this like that's not yeah you're making money off of my work right well okay so we don't actually know what's being sold and what you just said may actually there's a possibility that could be happening at a data level right like there may be people that want pictures of front doors for training models and who would they go to they might go to MLS's uh for a data feed of houses so they can train models on floor plans on window structures uh house types all kinds of things like that there are a lot of reasons why those photos might be helpful for particularly in an age where models are being trained on all kinds of stuff and there's a possibility that that stuff is being resold at a data level not at a like a stock photo level but at a like we're selling this is for sale aggregation of all these front elevations of houses.
• 23:26
  SPEAKER_03: But also just uh through the IDX feed which is what you know a lot of these platforms access their data feed through um which it's unclear to me at who's making money like when that's actually being sold but there is a feed being sold and it is not just photos obviously it's all the listing content.
• 23:47
  SPEAKER_03: So where is the line?
• 23:49
  SPEAKER_03: How should a photographer think about this from your understanding of it it I think we're all kind of holding little bits and pieces of the whole big picture but but it right it seems like quite a little tangled web.
• 24:00
  SPEAKER_02: Like we've talked to some MLSs that are very very careful about that but then we've talked to other companies that seem to take data feeds from MLSs and then turn them into other data sets and then resell them in different permutations.
• 24:11
  SPEAKER_02: It's part of an app or yeah it starts to get a little like well I mean that was my photo and I sold it to that realtor so that he could display it on the MLS.
• 24:20
  SPEAKER_02: All that seems like exactly what the transaction was supposed to be.
• 24:24
  SPEAKER_02: But then when it starts trickling out into all these other things it it seems like the photographer should have some rights again of like you you shouldn't you shouldn't be able to make money selling my photo like that.
• 24:35
  SPEAKER_03: And then yeah the data lives on for 10 years online.
• 24:38
  SPEAKER_00: I think you have to start at the highest level and that's what we already discussed which is they can't enforce their terms and conditions against you unless you're the one that's uploading the photographs into the MLS and accepting their terms.
• 24:53
  SPEAKER_00: Yeah uh you know I I can't force you to accept my terms and conditions by virtue of you just existing right like like that's not an enforceable contract.
• 25:03
  SPEAKER_00: I don't see how any court could ever enforce an MLS's terms against a photographer who doesn't have a direct relationship with the MLS.
• 25:12
  SPEAKER_00: So you know if the MLS is selling uh you know to data miners or training you know AI models based on it and distributing it to other companies I think that's a violation of your copyright you know obviously proving it uh that's a separate story you know and you know litigating and fighting that yeah it seems like a mess.
• 25:37
  SPEAKER_00: It could it could be a mess but at a very high level I think if they're doing anything with your photographs other than displaying them to list that particular property that you know you agreed to list it's a violation of your copyright at to some extent.
• 25:52
  SPEAKER_00: And and that's also you know to put on my cynical hat not that lawyers are cynical uh you know every one of these MLS terms and conditions are written to protect the MLS right and and they and they all state you realtor are certifying and representing to me that you have the right to allow this to happen uh and you agree that therefore I have the right to do so.
• 26:18
  SPEAKER_00: Uh and what they will do is they will later come back and claim well how should I have known right like the realtor gave me permission and told me that he had permission.
• 26:29
  SPEAKER_00: So how am I ever supposed to know I'm innocent in all of this me poor poor little MLS.
• 26:37
  SPEAKER_00: And the reality the way I look at it is there is no way you can say that with a straight face.
• 26:43
  SPEAKER_00: Right.
• 26:44
  SPEAKER_00: You know like the MLS understands the typical realtor uh photographer relationship is not transferring all ownership to do whatever the hell you want with the photos to the realtor.
• 26:58
  SPEAKER_00: You know all it takes is one second on Google to understand what the typical terms are.
• 27:04
  SPEAKER_00: And so I don't think just having those terms out there somehow insulates the MLS to say I'm innocent in all of this.
• 27:10
  SPEAKER_00: You know, okay great I can put terms out there but they defy logic and the reality of the world that we live in.
• 27:17
  SPEAKER_02: Yeah it's it's really interesting like the way the the industry has shaped up even in the last few years has been really interesting sometimes concerning from a from our photographer perspective as like like we use a backend platform um that we've really enjoyed Ario was was built custom built for photographers and then it got bought by Zillow and then Zillow has been using it and there are photographers and they they have this whole like web where they're trying to they don't they don't take the the copyright from the photographer but they ask for like an unlimited license for the photo of everything that flows through the platform and gets pushed through Zillow showcases and stuff like that.
• 28:00
  SPEAKER_02: And it seems like like what are they doing there?
• 28:04
  SPEAKER_02: Are they just covering their butt?
• 28:06
  SPEAKER_02: Like are they they're trying to have a flow of photos that they don't have these kinds of risks so they can data mine them like I I know you can't tell me what Zillow is doing but like what what does that positioning look like?
• 28:21
  SPEAKER_02: What does that help them with why do they want that?
• 28:23
  SPEAKER_03: Maybe you may not know why but like the more important I think we've got to get to is like what should a photographer be how should they exactly what should how should they prepare themselves before agreeing to one of these platform or MLS agreements if they're being asked to and and full disclosure like our media company uses Ario which is a Zillow product and then I look at these things and I'm concerned about them from a photographer's perspective and I know I've seen on socials and Reddit and stuff like that a lot of people are so anyway curious your thoughts.
• 28:56
  SPEAKER_00: Yeah I yeah I mean look at the at the end of the day the the first thing you got to start with is if you're producing work product for a realtor or any other client you got to focus on what you can and can't control.
• 29:09
  SPEAKER_00: Right.
• 29:10
  SPEAKER_00: So what you can control are the terms that you require the person you have a direct relationship with to agree to and accept.
• 29:19
  SPEAKER_00: So if you're if you're coming up with photos for a realtor have good terms and conditions.
• 29:24
  SPEAKER_00: You know they are enforceable against your client.
• 29:26
  SPEAKER_00: Now you know when you go to the next step which is well what if I use Ario or what if I you know upload to you know this program or that program, you have to understand the terms and conditions you're agreeing to much like you know much like uh signing a loan with Chase Bank or getting a credit card with American Express, you're probably not going to change the terms and conditions of you know some major multi-billion dollar company that exists out there.
• 29:52
  SPEAKER_00: Sure.
• 29:53
  SPEAKER_00: So if you're going to if you are directly going to upload photos into Zillow or you know some other program, the first thing you have to do is understand what rights am I giving up at this point by doing this if I'm directly doing so.
• 30:07
  SPEAKER_00: And you know only you can decide am I willing to accept those you know those terms or is there some other program out there I can use that's uh a little more favorable in the terms.
• 30:19
  SPEAKER_00: But you know I've had people come to me in in the business world and state you know well I'm I'm doing a business transaction with JP Morgan Chase and I'm getting a hundred million dollar loan and you know here's their 30 pages of loan terms they want me to agree to can you review these and and make edits I said well I can and you can pay me you just won't do anything they're they're gonna tell you to pound sand when when they get my edits you know uh yeah it's it's an unfortunate reality that a lot of these larger companies are just going to dictate what their terms are and if you have that direct relationship with them you have to be cognizant of it you know I know we all skip over the terms and conditions not anymore every time we snap Google windows or something yeah no I mean you you absolutely should you gotta you gotta have an understanding of what it is you're actually you know getting yourself involved with at this point.
• 31:12
  SPEAKER_00: Yeah I mean and and this and this goes for YouTube and Facebook and uh TikTok and everything else.
• 31:19
  SPEAKER_00: You know they they all have terms and conditions that allow people to do certain things.
• 31:24
  SPEAKER_00: There was a case just recently I think it was I think it was YouTube uh where I I think well the a videographer's client was a news company and they put the video or maybe they put it up themselves on YouTube and another news agency shared the video on on YouTube or Facebook.
• 31:44
  SPEAKER_00: I don't remember which platform it was uh they sued for infringement and the court said well YouTube's terms and conditions say you allow any other user to reshare uh images you know they can't copy it and download it and put it on their website but you know they can share it on YouTube and that's not an infringement.
• 32:04
  SPEAKER_00: Uh and the court dismissed an infringement lawsuit based on that.
• 32:07
  SPEAKER_00: And that you know just goes to show you that if you are putting your photos or your artwork or videos somewhere, you got to understand what rights you're giving up or what you're allowing not only the platform but other users of that platform to do.
• 32:21
  SPEAKER_02: All right it's that time.
• 32:23
  SPEAKER_02: So today we want to spotlight a particular feature that we developed this year for Pixel Mom, which is disclosures, where you can actually bake in a specific disclosure for an AI edit or a significant like edit that's changing something about the real estate space.
• 32:42
  SPEAKER_02: There's a whole free system where you can store that original image you can put a QR code on the image so it survives through all the MLSs and portals and anywhere it's going to go on the internet which realtors particularly in California and a few others they need that to stay compliant with their state.
• 32:59
  SPEAKER_02: So we've baked that in it's completely free that you can use you can even use it outside of Pixel Mob.
• 33:05
  SPEAKER_02: So you've got all kinds of options and this is particularly useful as we've launched effects as well where you can make all kinds of AI effects on top in line with your workflow in Pixel Mob with your images.
• 33:18
  SPEAKER_02: So if you want to you forgot to close a toilet seat it'll do that for you if you want to clear a room if you want to do virtual staging if you want to put lines on an image all right in your Pixel Mob workflow all of that is available to you.
• 33:30
  SPEAKER_02: And if it's something where you're changing something about the image that needs to be disclosed you have a free tool there as well where you can disclose that so that everything is just buttoned up for you in one spot.
• 33:39
  SPEAKER_02: So go check it out.
• 33:40
  SPEAKER_02: Check out disclosures check out effects I want to push this slightly deeper.
• 33:44
  SPEAKER_02: So in the in the real estate world like back in the mid 90s there was um uh I forgot the bill but it created RESPA so it created these protections where you couldn't force a uh consumer as a realtor to use your lender or your attorney they had to have like consumer freedom and consumer choice to select their own vendors.
• 34:05
  SPEAKER_02: And as a realtor I couldn't coerce that and it it trickled out into all kinds of um rules about like advertising and who pays for what and all kinds of things in in an effort to protect the the general population I guess from realtors forcing them to use people giving them kickbacks and all kinds of stuff.
• 34:26
  SPEAKER_02: Alright so that's that's over here it's part of real estate's air that is breathed.
• 34:30
  SPEAKER_02: This smells a little like that to me where I have a contract with a realtor and that contract says here's your photos put them in the MLS but then a large aggregator a large portal or something comes in and says hey in order to use this product this showcase product you have to force your photographer to give up these rights to do this.
• 34:57
  SPEAKER_02: So it's like this third party coming in and messing with this contract that I've made is that there's no like legal defense against that kind of behavior.
• 35:07
  SPEAKER_02: I know these are like Titans and like you're saying like the likelihood of a lawsuit here going well is maybe bad but I mean this is America I feel like there should be a way to protect like it feels like the photographer is kind of getting the short shrift here and being forced into these agreements in ways that they they probably wouldn't choose and and if it were just an un unpressured contract between the photographer and the realtor would never happen.
• 35:36
  SPEAKER_02: Right.
• 35:37
  SPEAKER_00: Yeah I mean look it's uh whether it is legal or illegal it's certainly a monopoly right and you know at least at least in the US monopolies are supposed to be illegal uh you know they're they're not supposed to be legal but if you you know if if you're taking photos in Seattle or Miami or New York City uh it's not like you can go to a different MLS and say well you know I don't like these terms let's just put them up on the other MLS there's typically one MLS that covers one geographical area.
• 36:09
  SPEAKER_01: Right.
• 36:10
  SPEAKER_00: And you know I I don't think photographers are going to say well you know what uh family pack up we're leaving Miami we're moving to Orlando so we can have a different MLS uh govern the area that we have so yeah I mean look it it certainly seems unfair uh you know my my argument would be um I'm not bound by your terms and conditions and I've had this issue litigated before in some of my cases in MLS specifically related where people there were MLS terms that allowed realtors to do certain things uh that our photographer client said absolutely not that violates my terms and at least in those cases courts have agreed with me uh you know who cares what the MLS terms and conditions say uh now now granted that was against a realtor not against the MLS itself right but but same same concept applies of if you did not sign up directly with that relationship and agree to those terms and conditions they can't be enforced against you now you know the the issue then becomes as as you were you know saying uh well what if the realtor then says well I can't work with you you know unless like I'm my hands are tied I'm handcuffed that's what every photographer is afraid of this yeah and and and look so some of these MLS terms and conditions that I looked at recently and I looked at some of the biggest states I looked at California at Texas and Florida New York a lot of them in their terms they have provisions in there encouraging realtors uh to try to get you know to to break the back of the photographer for lack of a better word you know you should go and get all rights to the photograph you should get all ownership transferred over to you don't just get a license get the you know and it entirely could be in the future we start seeing a shift in the terms where they say unless you've got those rights then you can't upload them into the MLS which is then going to force the realtors to start breaking off relationships with with photographers.
• 38:17
  SPEAKER_00: And I I do think then I I think there's a difference between encouraging and requiring right like if if it gets to the point where it's required I think you'll see a lot of class action lawsuits filed against these MLSs and you know that this is a a monopoly trying to force people out of business or dictate your terms.
• 38:38
  SPEAKER_00: Right now they're I think they're skirting that gray area of well you know we're not we're not directly saying it's required but we're strongly encouraging our our realtors to do so.
• 38:48
  SPEAKER_02: It does feel a little bit of like a mafia influence like you don't have to pay us uh a thousand dollars a month but I will break your kneecaps is what it feels like if you don't like well look you have a you you you have a beautiful store uh I'd hate to see something bad happened I mean you're you're not wrong like the way this the way it goes down with a portal is kind of like that where the realtor like they offer to the realtor a perk like they get more exposure they get to the top of the list their listing gets a big spotlight shined on it all the realtor has to do is get and and the portals are smarter now I think they have to get the license agreement from the photographer.
• 39:36
  SPEAKER_03: The photographer is then pressured to accept this license agreement in that scenario or have their kneecaps broken slash their relationship with their realtor they can't they can't um popularize that listing in the same way and that little triangle of coercion doesn't feel very just no and particularly it's I'm seeing it at a sm I've seen it in a few cases and I I I don't know the specifics but those kind of arrangements that you're talking about Dan like um a geographic footprint an MLS that covers a county um doing that kind of requirement that we all photos have to be uploaded with the copyright permissions in uh essentially forcing the photographers to give that that means that photographers that are in that in that uh community uh are being forced uh essentially by the realtors like we won't work with you unless you sign this agreement before uh we we we will cut off our work with you unless you sign this agreement it feels very 1920s very yeah if you don't use my railroad then and and and this is this is not hypothetical right like I've seen like I I know photographers um I've met a bunch at conferences that uh are being presented with contracts from major brokerages you know some of the biggest brokerages uh that simply state like unless you signed this we're not working with you like and and those contracts are give me all the ownership transfer all the rights I can do with it whatever the hell I please so like and and that's great work for hire you don't own anything anymore.
• 41:17
  SPEAKER_00: And that's you know twofold.
• 41:19
  SPEAKER_00: I don't I don't think it's just because the MLS are asking for it.
• 41:23
  SPEAKER_00: I I think it's because the brokerages are tired of their realtors infringing on people's photos and you don't want to be protected.
• 41:29
  SPEAKER_02: There's a big brokerage in our town that that that exact thing happened they had a copyright issue 20 years ago and now to work with them you have to sign this work for hire agreement to to try to protect themselves.
• 41:42
  SPEAKER_00: But it seems like you're you're using a nuke on a molehill like yeah I mean god god forbid you you know train your realtors not to steal people's photos instead of trying to beat up the photographer.
• 41:54
  SPEAKER_00: Yeah but I but it does seem like there might be a simpler solution.
• 41:58
  SPEAKER_00: But I feel like they have realized like you know we can beat the law into people's heads and you know beam it in there and they still don't understand and they're just gonna keep you know realtors are going to keep screwing up and not following the law.
• 42:10
  SPEAKER_00: So uh you know hey sign this photographer but but the same type of thing.
• 42:15
  SPEAKER_00: You know if you don't like I I hope you like eating uh because if you want to continue getting paid you're gonna sign this paperwork that I put in front of you.
• 42:23
  SPEAKER_00: I I think it's wrong.
• 42:25
  SPEAKER_00: Uh it it's certainly morally wrong and ethically wrong.
• 42:29
  SPEAKER_00: Uh you know I don't know that it's been that specific issue I don't know that it's been legally tested you know whether it's legally wrong at this point.
• 42:36
  SPEAKER_00: I don't know that any photographer has sued uh an MLS I I could see a you know a a racketeering or a RICO you know type of lawsuit.
• 42:46
  SPEAKER_00: You know it's it it's it's it sounds funny but it is it is kind of strong arm mafioso tactics which is what those laws are put in place to protect.
• 42:55
  SPEAKER_02: 2040 you're gonna you're gonna make a movie and it's gonna be the real estate mafia gets really really dense and technical yeah it's gonna be the new the new godfather it's gonna be Guido knocking over your tripod yeah they're gonna pull back the sheets and there's a there's a dismantled Matterport camera and I'm gonna break your legs and he sweeps the tripod legs yeah yeah that's good oh goodness okay I have I have lots more questions about that but I think we're pretty much out of time yeah I um I think well actually uh there's one other question like what is there anything that photographers could do about this do they just have to roll over um yeah I I don't think I don't think you have any control over what an MLS is going to put in their terms and conditions and unfortunately like that that piece I don't think you can control I I think like I said you got to control what you can and that is your own terms and conditions and what you make your client sign up for.
• 43:54
  SPEAKER_00: And if an MLS violates those terms, you know the you know third hand violates those terms Then you got to decide if it's worth you, you know, standing up for yourself and trying to go after the MLS at that point.
• 44:06
  SPEAKER_00: Of course, you know, that that's not just a legal question, it's a business question.
• 44:10
  SPEAKER_00: Right.
• 44:10
  SPEAKER_00: Like do I want to do I want to be the guy that is raising a stink on this stuff and and pursuing an MLS?
• 44:16
  SPEAKER_00: And then, you know, how much more work am I going to get with respect to photos that get uploaded into that MLS at that point?
• 44:23
  SPEAKER_00: Uh, yeah, there's there's a lot of different aspects to it.
• 44:27
  SPEAKER_00: Uh I think if we lose sleep over what the MLS's terms are, uh, it's gonna be difficult for us to run our own businesses.
• 44:36
  SPEAKER_00: Uh, and so you really have to focus on what you can and can't control.
• 44:40
  SPEAKER_00: And that's the realtors you work with and what terms you're gonna give them.
• 44:44
  SPEAKER_00: Uh now, if you give them no terms, you know, I don't I don't know, there's anything you can do at that point against anyone.
• 44:49
  SPEAKER_00: Uh, but hopefully, you know, by now, most people are sophisticated enough to have some form of terms and conditions that they work with, they insist on contracts with their clients.
• 45:00
  SPEAKER_00: And that's the that's the piece of the puzzle that you can control.
• 45:04
  SPEAKER_00: Uh until someone comes around that says, Look, I I I I want to go sue an MLS for RICO racketeering, for fraudulent practices, for being a monopoly.
• 45:14
  SPEAKER_00: And and I'm sure there's someone out there that wants to do so.
• 45:17
  SPEAKER_00: Um, I haven't met them yet.
• 45:18
  SPEAKER_00: Um, but when you know, when they do, it I think it'd be a very interesting case.
• 45:22
  SPEAKER_00: You know, it's it's a heavy case that lawyers love because they're they're interesting.
• 45:26
  SPEAKER_00: They're it's different.
• 45:27
  SPEAKER_00: They're new new ground.
• 45:29
  SPEAKER_00: It creates new law.
• 45:30
  SPEAKER_00: Right, it creates new law.
• 45:31
  SPEAKER_00: But but it's one of those cases that if you say, What's the output, you know, what's the outcome of that?
• 45:35
  SPEAKER_00: I'm gonna say, well, you know, my best prediction is like, I don't know.
• 45:39
  SPEAKER_00: It depends on what judge you have and what appeals court you have.
• 45:43
  SPEAKER_00: It it's obviously a big case that's gonna get a lot of attention, that a lot of people are gonna follow.
• 45:49
  SPEAKER_00: Uh, and it's just one that, you know, I if you ask me today what the outcome is gonna be, my answer might be different than if you asked me tomorrow.
• 45:56
  SPEAKER_00: Or if you asked a hundred different lawyers, they'll they'll give you 50 different answers.
• 46:00
  SPEAKER_02: Interesting.
• 46:00
  SPEAKER_02: Is is that what lawyers like brag about at dinner parties?
• 46:04
  SPEAKER_02: Is like, I got this law added to this county in this state.
• 46:08
  SPEAKER_00: Oh, I I I've look, I've I've often said lawyers who marry lawyers have to have the absolute worst conversations because you know, like any any any anytime lawyers get to the case, sign this and pass the butter.
• 46:21
  SPEAKER_00: Yeah.
• 46:22
  SPEAKER_00: I mean, look, at dinner parties or dinners, and you get lawyers talking about I did this case and here's what happened, and oh well, I did this case.
• 46:30
  SPEAKER_00: And I mean, it's it is as snooze fest as snooze fest can be.
• 46:34
  SPEAKER_00: That's the conversation.
• 46:36
  SPEAKER_02: Awesome.
• 46:37
  SPEAKER_02: Well, Daniel, thank you so much for sharing your wisdom from your your seat in that lawyer's seat.
• 46:44
  SPEAKER_02: Thanks for taking that bullet for us and serving our country as a lawyer and dealing with those dinner parties and all that.
• 46:50
  SPEAKER_02: Um, and just as a reminder for people where can people follow you and keep up with Copycat Legal if they'd like to connect with you?
• 46:59
  SPEAKER_00: Sure.
• 46:59
  SPEAKER_00: Yeah, I mean, we're we're all over.
• 47:00
  SPEAKER_00: You can go to our website at copycatlegal.com.
• 47:03
  SPEAKER_00: You can give us a call at our office.
• 47:05
  SPEAKER_00: Um, you know, if you just Google Copycat Legal, you'll find our phone number, our social, um, all of that.
• 47:10
  SPEAKER_00: We're happy to talk to photographers.
• 47:12
  SPEAKER_00: We always are.
• 47:14
  SPEAKER_00: Uh, you know, my my goal is to put people at least in the best position they can be.
• 47:18
  SPEAKER_00: We're here to enforce people's copyrights.
• 47:20
  SPEAKER_00: Uh, you know, when someone does infringe and it's unfortunate uh to go after them and you know try to recover for our clients, but it's you know, just as equally, I'd like to educate people on both sides, you know, the the photographer as to what you can do to protect your rights and you know, frankly, the rest of the world.
• 47:40
  SPEAKER_00: Yep.
• 47:41
  SPEAKER_00: Look, it's it it's ironic because we do we do put a lot of information out there as to how you can properly license photos and you know what you should do versus you know just Google searching and ripping stuff off.
• 47:54
  SPEAKER_00: It it's ironic because if people actually listen to me, I'd put myself out of business.
• 47:58
  SPEAKER_00: But you know, I think the the the reality is people just don't listen and they're gonna keep you know keep doing what they're doing absent uh some level of enforcement that's out there.
• 48:08
  SPEAKER_00: But that's you know, we're out there to do.
• 48:10
  SPEAKER_00: We're happy to talk to people, call us, email us, send smoke signal, uh smoke signals.
• 48:15
  SPEAKER_00: We're you know, always happy to discuss uh new ways to help our clients or prospective clients.
• 48:20
  SPEAKER_00: Awesome.
• 48:21
  SPEAKER_02: Well, thank you so much, Daniel.
• 48:22
  SPEAKER_02: We'll talk to you later.
• 48:23
  SPEAKER_02: Thanks so much.
• 48:24
  SPEAKER_02: See ya.