CoreLogic has emerged the victor in a two-year-old lawsuit that alleged the company stripped identifying information from millions of listing photographs uploaded to MLSs — thereby making it more difficult for real estate photographers to protect their images against copyright infringement.
In a complaint originally filed in May 2014, real estate photographers Robert Stevens and Steven Vandel accused CoreLogic — the nation’s largest MLS system vendor — of stripping “copyright management information” (CMI) metadata from home images uploaded to the company’s multiple listing service platforms in violation of copyright law.
Copyright management information can include the name of the photographer, title of the work, owner of the photograph, terms and conditions for use, or other identifying information such as when and where the photograph was taken.
The complaint, which sought class-action status, further alleged that CoreLogic illegally copied the images into its subscription-based RealQuest property database from MLSs and sold access to them without photographers’ permission or authority and without compensating them.
CoreLogic’s customer base includes 136 MLSs representing nearly 700,000 agent and broker subscribers nationwide, according to a survey from real estate consulting firm Clareity.
The court’s decision is good for the real estate industry, according to the National Association of Realtors, which counts more than 1 million agents and brokers as members.
“We congratulate CoreLogic on this victory and hope that it serves to deter photographers from bringing class action lawsuits against MLSs or their vendors in the future,” Katie Johnson, NAR’s general counsel, said in an emailed statement.
“The court’s conclusion is consistent with the reality of how real estate photographs are used by our members and MLSs today.”
The ruling
Last week, U.S. District Judge Cynthia Bashant ruled in favor of CoreLogic and dismissed the case, saying the plaintiffs had failed to prove that copyright management information was on the photos uploaded to the MLS, that CoreLogic took any action that removed or altered CMI, or that any action by CoreLogic was intentional.
Real estate agents using CoreLogic’s platform were the ones to upload the images to the MLS — not CoreLogic employees or the real estate photographers themselves.
And because the photographers were not involved in the actual image uploading, the photographer plaintiffs can’t say whether CMI existed at the time of the upload — a flaw that Bashant said was “fatal” to the plaintiffs’ argument.
“Although the named plaintiffs testify that some of their photographs had CMI in the metadata at the time the photographs were given to a real estate agent, there is insufficient evidence as to what happened to the photograph after delivery to the agent,” Bashant said in the ruling.
Agents could have inadvertently removed CMI before upload in any number of ways, including by resizing, rotating, cropping and adjusting resolution of the image, she said.
“Although it is clear that CoreLogic’s platform would have removed CMI metadata had it existed at the time of upload, Plaintiffs cannot point to a single photograph that had CMI at the time of upload,” she continued.
The plaintiffs also presented no evidence to show that the removal of any CMI was intentional as opposed to an “unintended side effect” of CoreLogic’s MLS platforms being based on a programming library “that failed to retain metadata by default,” she added.
Moreover, “[t]here is absolutely no evidence that, had the CMI metadata been embedded in the photographs, this might have prevented infringement, and that CoreLogic knew it would help prevent infringement,” she said.
“Plaintiffs provide no evidence that the absence of metadata led to actual copyright infringement, nor have the named plaintiffs ever used metadata to track down copyright infringers.”
NAR’s Johnson added, “NAR recognizes that, in light of the amount of data MLS systems must host, and to ensure a robust and smooth viewing experience by the end user, resizing of photographs may inadvertently result in removal of a photograph’s copyright management information, or CMI.
“That is why earlier this year, NAR asked the Copyright Office to support and assist in the creation of a standardized formatting of CMI in photographs’ metadata, including field name labeling, mapping, synchronization and location.
“Standardizing CMI and its location within metadata can help ensure that users do not inadvertently strip CMI from copyrighted photographs.”
Still stripping metadata?
The plaintiffs will appeal the judge’s decision to the Ninth Circuit court of appeals this week, according to their attorneys.
“Notwithstanding the district court’s decision, the plaintiffs presented evidence that CoreLogic knew it was stripping photo metadata, and that even after CoreLogic claimed to have fixed its software, violations have continued,” Joel Rothman, a partner at one of the law firms representing the plaintiffs, Schneider Rothman Intellectual Property Law Group, told Inman via email.
“Even today, CoreLogic continues to remove certain copyright management information metadata and distribute it in violation of 17 USC §1202.”
CoreLogic is currently removing more than 100 different metadata fields, including all eight CMI metadata fields regarding a photograph’s terms of use, and others such as Copyright Owner Name, Creator Work Email, Creator Work Telephone, Creator Work URL and Copyright Flag, Rothman’s co-counsel Darren Quinn told Inman via email.
Rouz Tabaddor, CoreLogic’s vice president and chief intellectual property and licensing counsel, told Inman that CoreLogic “took measures to address the situation,” but refused to say whether CoreLogic’s MLS platforms continue to strip metadata from photos or whether Rothman and Quinn’s statements were accurate.
“The plaintiffs said the same thing to the court in their motion for partial summary judgment, but the court denied that motion and entered judgment in favor of CoreLogic. We believe that the Court’s decision was correct,” Tabaddor said via email.
“We don’t believe that there has been any violation of Section 1202 by anyone in connection with these photos. That is because — as the court held –‘[t]here is absolutely no evidence that, had the CMI metadata been embedded in the photographs, this might have prevented infringement’ and, in fact, ‘there was none[.]’”
Tabaddor said CoreLogic was pleased with the court’s decision to dismiss the case.
“We feel vindicated by the court’s holdings that CoreLogic did not intentionally delete any CMI data, and more importantly, had the necessary rights to use the photos,” he said.
When asked what agents and brokers worried about being sued by real estate photographers should do, Tabaddor advised them to follow guidelines from the National Association of Realtors that say brokers should make sure they have the rights to any listing content they — or their agents — enter into the MLS.
Agents and brokers should make sure that written — not verbal — agreements with photographers allow them “unfettered” use of photographs for real estate purposes, Tabaddor told Inman.
[Tweet “CoreLogic: Agents should make sure agreements give them ‘unfettered’ use of photos for real estate”]
“Then they should have the rights. That’s where it all starts and that’s where it [should] end,” he said.
No warning to agents
Bashant noted that Stevens and Vandel licensed their photographs to agents for the express purpose of uploading the images onto an MLS.
“Plaintiffs knew that the agents would be manipulating the photographs specifically so they could be used on the MLS. Agents paid the plaintiffs for this use. Plaintiffs knew that the MLS had software used by the agents to upload the photographs. Plaintiffs agreed the agents could use the photographs in this manner,” she said.
“Nowhere in the agreements with the agents do Plaintiffs warn the agents not to remove embedded metadata not viewable with the naked eye.
“To the extent there was CMI on the photographs, to the extent CoreLogic excised this CMI or knew the CMI had been excised, to the extent CoreLogic’s removal or distribution of the CMI was intentional — all of which Plaintiffs have failed to prove — Plaintiffs impliedly gave authority to the agents to upload these photographs even though the result was the removal of CMI.”
The plaintiffs could not prove that CoreLogic acted without the authority of the copyright owner, she said.
“A copyright holder may give implied license to another ‘where the copyright holder engages in conduct from which [another party] may properly infer that the owner consents to his use,'” she said.
Citing case law, she noted that silence, lack of objection, or “common industry practice” could imply consent.
Like me on Facebook! | Follow me on Twitter!
