What is the second most common mistake real estate agents make? Giving up the copyright to their own work. Don’t believe me? Read on.
What is a Copyright?
According to the U.S. Copyright Office, a copyright is defined as:
…a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
Great, you say, but what does that actually mean?
Basically, that the government believes that anything you create belongs to you, whether or not it’s a top ten best-selling book or a dusty old manuscript that only your great aunt has read that now resides in a nightstand drawer in your attic.
Did you notice we underlined “create”? That’s because you can’t copyright an idea. Hence the phrase “tangible medium” in the U.S. Copyright Office’s definition above.
There are other things you can’t copyright, even if you did create them—things like procedures, processes, systems, or methods of operation.
Back in the dark? Cooking recipes, mathematical formulas, and scientific procedures all fall under those categories above. You don’t have to worry about that, though, unless you’re planning on selling a cook book with your next condo.
But that’s not all that can’t be copyrighted. Things with clerical data (phone books), common phrases, anything published by the U.S. Government, or any work created before 1923 all are unable to be copyrighted. Again, things you probably don’t have to worry about.
Why are we even bringing this up?
Now, when you let a company like those or one of the dozen others host or create your website, you have to agree to a contract or terms of service. Deep within that contract, there is a clause that basically states that the copyright to anything (photos, written content, art, applications you designed, and so on) that you create and put on the site belongs to them.
Meaning that anything you make, no matter how many hours, how much research you put, how much personal experience you put into it, is theirs. And you can do nothing about it.
But is that really the case?
What Do You Mean, I Can’t Do Anything About It?
You remember where we said “anything you create belongs to you”? That is the basis of copyright law. And it kicks in at the moment of creation.
But you get clauses buried in your Terms of Service Agreement like this one here, which is taken from an actual contract with a real estate website provider:
“Customer hereby agrees that any information or ideas submitted to Company by Customer, by any means, may be used by Company without compensation to Customer or liability to Company…”
You agree that anything you email, mail, submit via form, put up on your own website using Zilia’s backend, say in conversation or by text can be used by Zilia without paying you and you cannot do anything about it.
“…for any purpose whatsoever, including, but not limited to, developing databases, e-commerce and developing, manufacturing and marketing other services.”
They can manufacture, distribute, market, and sell your idea or creation. Or anything else they can think of. Because you’ve submitted it to them in some form.
They try to sneak this in to supersede your claim to your own work. And maybe you think that you’re fine with that, that the photos you are taking or the content that you are writing has no direct financial value. But what if your provider takes your content, puts in on their homepage, plasters it with ads, and it gets hundreds of thousands of views over the course of a week?
That’s money in their pocket, but none in yours.
And no credit or leads either. Sounds like a bad deal to me.
How Do I Keep The Copyright for My Content?
Read your contract carefully before signing. If you spot a clause like the one we showed above, which you most undoubtedly will, strike it out. Whether you’re just starting your real estate brokerage or are an established firm, the website providers want your business. The bulk of them will not put up a fight over copyright—they have hundreds, if not thousands of websites under them, most of which they never touch the contents of—so if you get one willing to fight you for rights to your content, move onto the next.
Okay, I’ve Gotten the Copyright Clause Removed. Now What?
You need to get the actual copyright to your work.
Yes, yes, I know I told you that a copyright comes into being the moment a creation does. And that’s still true. But there are two main types of copyright in the United States: registered and not registered. (“Not registered” is the one that naturally occurs upon creation.)
When you register your work, which you nearly in all cases should, you’re getting the protection of U.S. copyright law in full.
What does this mean?
It means that if Big Time Website Provider copies your content onto their home page without your consent via contract and you decide to take legal action and win… BTWP has to pay your attorney’s fees.
See, if you’re not registered and you win your case, you’ll still be left holding the bill from your attorney. So it becomes a matter of estimating whether or not you think you can win enough money to cover your costs of fighting a company with a preset legal team.
That’s not all, though. When a work is registered with the U.S. Copyright Office, it means whoever may have infringed upon your work had an easy way to check to see if you had copyrighted it and either didn’t, or ignored it. That cements into a pretty solid lawsuit.
It also definitively shows that the work belongs to you, eliminating any argument that your opponent’s legal team may present on that front.
How to Copyright Your Work
The easiest way would be to go through a third party, like LegalZoom.
But you can, of course, do it yourself and learn all about the copyright system on the U.S. Copyright Office’s webpage, which currently has an eight month waiting period for e-filing and a thirteen month waiting period for paper filing, so you’ll want to take that into account while you’re trying to figure out when to start the process.
The copyright office is continually updating their site and procedures as they learn to deal with new types of creations in the digital world, so don’t expect things to be the same each time you go to register something new.
Good luck! And make sure to read the fine print!
Also, if you want to learn more about copyright in the US, check out this amazing video below:
I hope you enjoyed this second installment of “The Ten Commandments of Real Estate Websites.” There are eight remaining commandments, which will be rolled out over the next few weeks.