Is there any recourse when a listing agent uses listing content without permission?

QUESTION: While representing a buyer, I came across a new MLS listing for a property that I had listed last year. Most of the photographs in the current listing are photographs that I took and used in my listing. The current listing agent is also using a floor plan that I created. When I called the listing agent about it, he laughed and said he had done the same thing before and didn’t see anything wrong with what he was doing. I demanded that he take down my photographs and floor plan but he refused. What recourse do I have, if any?

ANSWER: One option is for you to file a lawsuit over the wrongful use of your photographs and floor plan. However, pursuing a copyright infringement lawsuit would be time-consuming and therefore may not be practical. Fortunately, there are several alternatives for you to consider.

Article 12 of the Code of Ethics is the advertising article. Among other things, it requires REALTORS® to be honest in their real estate communications, and to present a “true picture” in their advertising, marketing and other representations.

In 2014, Standard of Practice 12-10 was amended to clarify the obligations imposed by Article 12. As amended, Standard of Practice 12-10 states in part: “REALTORS®’ obligation to present a true picture in their advertising and representations to the public… prohibits REALTORS® from presenting content developed by others without either attribution or without permission.” Since the current listing agent did not include attribution in his listing and does not have permission to use your listing content, this language definitely gives you the basis for an ethics complaint.

The rules of your MLS may also provide you with some recourse. For example, Section 9.3 of the Canopy MLS Rules and Regulations states that before a Member Participant copies the “Listing Content” submitted by another Listing Brokerage to a new listing, the Member Participant must obtain the written permission of the owner of the Listing Content. That section (and Section 9.3 of NAR’s Model Rules and Regulations) also states that any Member Participant who believes that another Member Participant has engaged in the unauthorized use or display of Listing Content should send notice of that use to the MLS in writing. Alleged violations are then processed by the MLS as Category 1 violations.