Vicarious Broker Responsibility

You might be guilty of this. Your broker may be guilty too. In fact, I bet the majority of real estate agents have committed this crime. I know I have. What most agents think of as a “victimless crime” might become an amazing revenue stream for some entrepreneurial-minded plaintiff.

As you freshen up your website and social media this spring, please keep this issue in the forefront of your thoughts.

What keeps your

broker awake at night?

In this year’s Continuing Education class, I included a court case out of the state of Texas.

Stross v PR Advisors, LLC.

Here’s the story….

Plaintiff Stross is a photographer. He must be a pretty good photographer because agents love to use his photographs. Two years prior to this court case, he sued another agent and brokerage for the same crime: copyright infringement. Apparently, an agent found his photographs online and used them on his webpage – without permission or payment.

Stross sued the agent for copyright infringement.

But here’s where the story gets interesting. Not only did the photographer sue the agent. He also sued the brokerage for vicarious copyright infringement. What? Is that even a thing? Apparently, it is.

In order to claim vicarious copyright infringement, a plaintiff must identify 1) direct infringement by a third party (the agent), 2) direct financial interest (think your broker directly benefits financially from your work?) and 3) must have the right and ability to supervise the agent. Your broker can be liable even if they DON’T KNOW about the activity.

Two decades ago, I built my first website. It was a beauty. I found the most iconic photos in West Michigan online. They included downtown Grand Rapids, the blue bridge, tulips in Holland, and the Grand Haven lighthouse…and I used them. It was sometime later that I realized that I might be committing some kind of copyright crime. Fortunately, the website was changed before there was any kind of complaint.

And that brings me to today.

We don’t know what we don’t know. And these are the things that keep your broker up at night. Imagine being financially on the hook for your agent’s actions – even if you are not aware of it. In this case, PR Advisors settled and paid the photographer around $25,000.

If you’re working on your website, blog or social media for the coming selling season, take the time to either pay or get permission before using any photos you find online. I use www.shutterstock.com. For only $10 each, you can use their photos without further royalty fees. That’s a small price to pay to stay “legal” and sleep well at night.