Real Estate Photography image rights

Started 7 months ago | Discussions
Michael Fryd
Michael Fryd Forum Pro • Posts: 15,681
Re: Real Estate Photography image rights

Ryan Steel wrote:

Michael Fryd wrote:

Of course an interesting question is whether the Realtor is allowed to put the images on the Multilist. Multilist images tend to propagate to Zillow and other assorted services. Those images may stay around for decades, and can easily reappear the next time the property goes on sale.

If you are going to allow the images to appear on the multilist service, then you cannot reasonable expect use of the images to stop once the property sells.

Every RE photography contract that I'm aware of allows posting to MLS and allows for any resulting IDX distribution. After all, that is the primary purpose of the photos—to be put on MLS. That is the most important purpose. Everything else—web sites, brochures, etc.—are secondary and of lesser importance.

Like many legal issues, it's complicated.

Consider a photography contract that specifically allows the client to post the images to the Multi List Service (MLS). It seems clear that such a contract authorizes the client to agree to the MLS terms and conditions for uploaded photography. I suspect the MLS terms allow them to provide the images to Zillow, Redfin, and other sites.

Once a property sells, it is removed from the IDX feed and data is no longer provided by local MLS. Any photos visible on Zillow, Redfin, and other sites are there not because of the agent or MLS, but because those services purposely chose to cache and/or store the photos for that address without explicit permission.

I suspect they have permission.  The photographer authorized the Realtor® to upload the images to the MLS.  The Realtor agreed to the MLS terms and conditions based on the authorization he received from the photographer.

Zillow, Redfin, etc., got the images from the MLS, and handle them according to their agreement with the MLS (which is allowed by the MLS terms and conditions).

When the property sells, it is removed from the MLS feed, but the MLS does not require Zillow, etc., to remove the images from their sites.

Therefore Zillow and friends are allowed to retain and sue those photos after the sale.  This is allowed under their license from the MLS.  The MLS is allowed to license to others based on the license they were granted by the Realtor® when he uploaded the images.  The Realtor was allowed to grant that license based on the license he received from the photographer when the photographer authorized MLS use of the images.

The bottom line is that these subsequent, and somewhat permanent, uses of the image are inherent in providing the images to the MLS.  The photographer granted these rights the instant he authorized MLS use.

I sent a DMCA Takedown notice to Zillow over photos that were stolen by my former client and used to sell his house "by owner" directly on Zillow after he canceled his listing with me. Zillow acted immediately and the photos were gone within 24 hours.

I would be interested in the details of how your former client "stole" the images.

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property.  It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Once you authorize a client to upload images to the MLS, you have agreed to the MLS terms and conditions.  You may not pick and choose which MLS terms to agree to, and which not to agree to.  If the MLS allows Zillow to keep the images up after the sale, and to display them for a "by owner sale", then you may not legitimately send a DMCA takedown notice, as the usage was authorized.

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In today's modern world, managing image rights can be quite complex.  If you allow your client to post images to any third party site (MLS, facebook, linked in, Instagram, etc.) then you have granted a license to your client, that allows them to agree to the terms of that service.

A contract contradicts itself if it only allows use until the property sells, and also allows a Realtor to post on the MLS.   In the USA, when a contract is not clear, the courts usually interpret it to the benefit of the party that did not write the contract.  Therefore restrictions that are inconsistent with MLS posting may not be enforceable.

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This is one of the reasons why it is important to have a lawyer draft legal documents.  A photographer might not realize that he is voiding many of his license restrictions by simply adding permission to post the images to the MLS, or to social media.

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Ryan Steel Regular Member • Posts: 148
Re: Real Estate Photography image rights

I photographed my client's home for sale and posted those images to MLS. When the house did not sell, listing was canceled. Client (seller) then got his own Zillow account and re-posted the same images for his "for sale by owner" listing. He's the one who took the photos without permission and re-used them for something that he did not have rights to do. Remember, I am the photographer and have not granted any licenses to my client, the seller. The only license is to me, the realtor.

Zillow took down the images upon receipt of my DMCA Takedown request. Your understanding is not correct.

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Michael Fryd
Michael Fryd Forum Pro • Posts: 15,681
Re: Real Estate Photography image rights

Ryan Steel wrote:

I photographed my client's home for sale and posted those images to MLS. When the house did not sell, listing was canceled. Client (seller) then got his own Zillow account and re-posted the same images for his "for sale by owner" listing. He's the one who took the photos without permission and re-used them for something that he did not have rights to do. Remember, I am the photographer and have not granted any licenses to my client, the seller. The only license is to me, the realtor.

Zillow took down the images upon receipt of my DMCA Takedown request. Your understanding is not correct.

When you posted the image to the MLS you agreed to the MLS terms and conditions. By posting you granted them whatever license their terms specify.

I suspect their terms allow them to provide the images to Zillow.  It's quite possible that the owner did not violate Zillow's terms when he used images from Zillow on the Zillow web site.

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My point is that as soon as you authorize posting to one of these sites, you have granted that site whatever license they want.

When you post to the MLS, you agree to their terms and conditions.  You don't get to edit those terms to suit your wishes.

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Ryan Steel Regular Member • Posts: 148
Re: Real Estate Photography image rights

Michael Fryd wrote:

Ryan Steel wrote:

I photographed my client's home for sale and posted those images to MLS. When the house did not sell, listing was canceled. Client (seller) then got his own Zillow account and re-posted the same images for his "for sale by owner" listing. He's the one who took the photos without permission and re-used them for something that he did not have rights to do. Remember, I am the photographer and have not granted any licenses to my client, the seller. The only license is to me, the realtor.

Zillow took down the images upon receipt of my DMCA Takedown request. Your understanding is not correct.

When you posted the image to the MLS you agreed to the MLS terms and conditions. By posting you granted them whatever license their terms specify.

I suspect their terms allow them to provide the images to Zillow. It's quite possible that the owner did not violate Zillow's terms when he used images from Zillow on the Zillow web site.

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My point is that as soon as you authorize posting to one of these sites, you have granted that site whatever license they want.

When you post to the MLS, you agree to their terms and conditions. You don't get to edit those terms to suit your wishes.

You're talking in circles, Michael. You suspect this, or it's quite possible that... You have no actual knowledge. You throw out a speculation and proceed to answer yourself as if your speculation was true or even something anyone asked about.

We are all aware that we grant sites licenses when we agree to those licenses. Duh. Nobody is talking about re-writing MLS agreements. Where you got that is beyond me.

The fact that Zillow acted on my DMCA Takedown request is evidence that they did not have the rights to: a) use those images after the sale, and b) provide them directly to the owner to sell his home by owner. If Zillow had the rights to those photos (which they don't), and had the rights to let the property owner use them in a FSBO listing (they don't), Zillow would not have removed all photos in response to my DMCA Takedown request.

Other Realtors are not allowed to use the photos of other Realtors without the permission of the copyright owner. You are incorrect in your statement that Realtors can use pre-existing photos on Zillow. That is simply not true and shows a lack of understanding of the topic.

I am Realtor for 15 years with over 400 career sales, most of which were listings with professional photos. I have extensive experience in this field.

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Michael Fryd
Michael Fryd Forum Pro • Posts: 15,681
Re: Real Estate Photography image rights

Ryan Steel wrote:

Michael Fryd wrote:

Ryan Steel wrote:

I photographed my client's home for sale and posted those images to MLS. When the house did not sell, listing was canceled. Client (seller) then got his own Zillow account and re-posted the same images for his "for sale by owner" listing. He's the one who took the photos without permission and re-used them for something that he did not have rights to do. Remember, I am the photographer and have not granted any licenses to my client, the seller. The only license is to me, the realtor.

Zillow took down the images upon receipt of my DMCA Takedown request. Your understanding is not correct.

When you posted the image to the MLS you agreed to the MLS terms and conditions. By posting you granted them whatever license their terms specify.

I suspect their terms allow them to provide the images to Zillow. It's quite possible that the owner did not violate Zillow's terms when he used images from Zillow on the Zillow web site.

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My point is that as soon as you authorize posting to one of these sites, you have granted that site whatever license they want.

When you post to the MLS, you agree to their terms and conditions. You don't get to edit those terms to suit your wishes.

You're talking in circles, Michael. You suspect this, or it's quite possible that... You have no actual knowledge. You throw out a speculation and then proceed to answer yourself when nobody even brought any of that stuff up.

I include qualifications because the specifics of a particular situation sometimes will result in an outcome that differs wildly from the general case.  Furthermore, I want to make sure that what I post can't be construed to be what attorney's call "Legal Advice".

But getting back to this situation, in the general case, when you upload images to a web site, you are agreeing to their terms of service.

We are all aware that we grant sites licenses when we agree to those licenses. The fact that Zillow acted on my DMCA Takedown request is evidence that they did not have the rights to: a) use those images after the sale, and b) provide them directly to the owner to sell his home by owner. If Zillow had the rights to those photos (which they don't), and had the rights to let the property owner use them in a FSBO listing (they don't), Zillow would not have removed all photos in response to my DMCA Takedown request.

Zillow complying with a DMCA takedown request is not an admission that they didn't have the rights to use a photo.  It is merely Zillow taking advantage of the law's safe harbor provisions.  Your photos are not important enough for them to fight over.

Consider a situation where you take a photo of a house, and provide a print to the owner.  You are clear that your intention os for them to enjoy the print, and that they do not have the right to reproduce and make copies of the print.  Despite not having a license, the homeowner scans the print, and provides it to his agent for use on the MLS.  That would be a situation where the MLS was not authorized, and the photographer would be within his rights to send DMCA takedown requests to the MLS and any other site with those images.

When you sent your request to Zillow, they didn't know the specifics of the situation, nor did they care.  By taking down the image they don't have to worry about it.

A dishonest person could test this theory by sending a DMCA takedown request to Zillow for an image they actually have the right to use.  Zillow will remove the image without investigating.  I strongly urge people not to perform this test, as you should not file false DMCA takedown requests.

Other Realtors are not allowed to use the photos of other Realtors without the permission of the original realtor who licensed those images and the copyright owner. You are 100% incorrect in your statement that Realtors can use pre-existing photos on Zillow. That is simply not true and shows how little you actually understand about this topic.

There are two separate issues here.

  • What are the rules imposed by the Realtor's association?
  • What are the rules imposed by law?

I would not be surprised if the Realtor's association prohibited their members from using images licensed by other Realtors.  However the rules of a trade association do not have the force of law, nor do they apply to non-members (such as an owner selling a home without the help of a Realtor).

On the other hand, if you grant a client the right to upload images to the MLS, and he does so, you have agreed to the MLS Terms of Service for use of those images.   If their terms allow Zillow to keep the images forever, or to display them for other realtors, then you have agreed to that.

I am Realtor for 15 years with over 400 career sales, most of which were listings with photos. I think I know what I'm talking about. Please keep your hypothetical speculations to yourself.

I don't doubt that you are an excellent agent, with lots of experience.  I don't doubt that you are very familiar with common practices in your area, and the rules of various trade associations.

Where we disagree is on the legal issues surrounding a photographer who grants a license to upload images to the MLS, yet includes restrictions that are inconsistent with the MLS terms of service.   For instance, image a photographer that grants permission to upload to the MLS, but prohibits use on other websites.  The two terms conflict with one another as you must allow use on other websites when you upload to the MLS.  If the photographer provided the license, the the ambiguity will generally be resolved in favor of the other party.

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Ryan Steel Regular Member • Posts: 148
Re: Real Estate Photography image rights
1

Michael Fryd wrote:

...

I'm out. I'm sure you're a great person and everything but carrying on a conversation with you is utterly pointless and exhausting. I wish you the best.

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Michael Fryd
Michael Fryd Forum Pro • Posts: 15,681
Re: Real Estate Photography image rights

Ryan Steel wrote:

Michael Fryd wrote:

...

I'm out. I'm sure you're a great person and everything but carrying on a conversation with you is utterly pointless and exhausting. I wish you the best.

Part of the issue is we are sometimes discussing different things.  You tend to discuss local common practice, and requirements of trade groups, and I tend to focus on what the law requires.

But you are right in that it can be frustrating to talk to someone who has a different point of view, and is willing to defend their position with facts and reason.

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Brett8883 Contributing Member • Posts: 800
Re: Real Estate Photography image rights

Michael Fryd wrote:

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property. It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Where do you see that in the terms of service for Zillow? I don’t see anything like that in there granted it is long and I could have missed it

Michael Fryd
Michael Fryd Forum Pro • Posts: 15,681
Re: Real Estate Photography image rights

Brett8883 wrote:

Michael Fryd wrote:

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property. It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Where do you see that in the terms of service for Zillow? I don’t see anything like that in there granted it is long and I could have missed it

Any time your upload photos to Zillow you grant them an irrevocable, perpetual, royalty-free worldwide license to: (i) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your User Materials, in connection with the Services or in any other media; and (ii) sublicense these rights, to the maximum extent permitted by applicable law.

Furthermore Zillow restricts your use of photos by prohibiting your from reproducing, publicly displaying, or otherwise make accessible on or through any other website, application, or service any reviews, ratings, or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services.  (emphasis mine).

The restriction on reusing images is specifically restricted to use on other websites.  There is no restriction against using images from the Zillow website in an updated listing for the same property.

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The key here is that anyone uploading an image to Zillow, grants Zillow a very broad license to do pretty much whatever they want with the images.  You have lost the right to restrict the images from being used by another Realtor.   I don't have access to the MLS terms of service, but I would be amazed if they did not require a similarly broad license.

If a you want to be able to restrict these additional uses of images, then you can't allow them to be uploaded to Zillow, the MLS, or many other services.  Clearly, that makes the images almost useless to a Realtor, so such restrictions are not practical when targeting that market.

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Brett8883 Contributing Member • Posts: 800
Re: Real Estate Photography image rights

Michael Fryd wrote:

Brett8883 wrote:

Michael Fryd wrote:

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property. It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Where do you see that in the terms of service for Zillow? I don’t see anything like that in there granted it is long and I could have missed it

Any time your upload photos to Zillow you grant them an irrevocable, perpetual, royalty-free worldwide license to: (i) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your User Materials, in connection with the Services or in any other media; and (ii) sublicense these rights, to the maximum extent permitted by applicable law.

Furthermore Zillow restricts your use of photos by prohibiting your from reproducing, publicly displaying, or otherwise make accessible on or through any other website, application, or service any reviews, ratings, or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services. (emphasis mine).

The restriction on reusing images is specifically restricted to use on other websites. There is no restriction against using images from the Zillow website in an updated listing for the same property.

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The key here is that anyone uploading an image to Zillow, grants Zillow a very broad license to do pretty much whatever they want with the images. You have lost the right to restrict the images from being used by another Realtor. I don't have access to the MLS terms of service, but I would be amazed if they did not require a similarly broad license.

If a you want to be able to restrict these additional uses of images, then you can't allow them to be uploaded to Zillow, the MLS, or many other services. Clearly, that makes the images almost useless to a Realtor, so such restrictions are not practical when targeting that market.

I don’t see where it grants a license to another realtor though. You are just assuming that because it doesn’t say you can’t do it that you can. I agree that you couldn’t go after Zillow for having the photos on their site but if another realtor has downloaded the photos and re uploaded them to Zillow, that realtor is violating the copyright and the images need to be taken down and it sounds like Zillow does just that.

Michael Fryd
Michael Fryd Forum Pro • Posts: 15,681
Re: Real Estate Photography image rights

Brett8883 wrote:

Michael Fryd wrote:

Brett8883 wrote:

Michael Fryd wrote:

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property. It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Where do you see that in the terms of service for Zillow? I don’t see anything like that in there granted it is long and I could have missed it

Any time your upload photos to Zillow you grant them an irrevocable, perpetual, royalty-free worldwide license to: (i) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your User Materials, in connection with the Services or in any other media; and (ii) sublicense these rights, to the maximum extent permitted by applicable law.

Furthermore Zillow restricts your use of photos by prohibiting your from reproducing, publicly displaying, or otherwise make accessible on or through any other website, application, or service any reviews, ratings, or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services. (emphasis mine).

The restriction on reusing images is specifically restricted to use on other websites. There is no restriction against using images from the Zillow website in an updated listing for the same property.

.

The key here is that anyone uploading an image to Zillow, grants Zillow a very broad license to do pretty much whatever they want with the images. You have lost the right to restrict the images from being used by another Realtor. I don't have access to the MLS terms of service, but I would be amazed if they did not require a similarly broad license.

If a you want to be able to restrict these additional uses of images, then you can't allow them to be uploaded to Zillow, the MLS, or many other services. Clearly, that makes the images almost useless to a Realtor, so such restrictions are not practical when targeting that market.

I don’t see where it grants a license to another realtor though. You are just assuming that because it doesn’t say you can’t do it that you can. I agree that you couldn’t go after Zillow for having the photos on their site but if another realtor has downloaded the photos and re uploaded them to Zillow, that realtor is violating the copyright and the images need to be taken down and it sounds like Zillow does just that.

Zillow explicitly allows real estate professionals to use the images, as long as they are not using it on another web site. Zillow also has the right to sublicense use of the images.

"If you are a real estate or mortgage professional acting in your professional capacity, you may additionally use the Services to provide information, to the extent permitted by applicable law, to your clients and to take actions on behalf of your clients (“Pro Use”). If you use the Services for a Pro Use, you represent and warrant that you have obtained all required authorizations and consents from your client. Except as expressly stated herein, these Terms of Use do not provide you with a license to use, reproduce, distribute, display or provide access to any portion of the Services on third-party web sites or otherwise."

The underlying issue here, is that these sorts of services require you to give them a very broad license for images. If you authorize use of images on these sites, these sites can pretty much do whatever they want with those images, and can allow others to also do so.

Zillow explicitly allows real estate professionals to use any images from Zillow for the benefit of your client. That includes images taken for other agents for previous sales. This is not a copyright violation, as a requirement of uploading images to Zillow is that you allow them to do grant exactly this sort of license.

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The problem is a photographer who authorizes his client to use images on these sorts of sites, and then imposes restrictions which are not consistent with using the images on these sorts of sites. You can't allow the image to be uploaded to Zillow, and then restrict Zillow from allowing others to use the images.

Keep in mind, that when it comes to the law, common sense and fairness cannot be always be counted on.

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Brett8883 Contributing Member • Posts: 800
Re: Real Estate Photography image rights

Michael Fryd wrote:

Brett8883 wrote:

Michael Fryd wrote:

Brett8883 wrote:

Michael Fryd wrote:

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property. It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Where do you see that in the terms of service for Zillow? I don’t see anything like that in there granted it is long and I could have missed it

Any time your upload photos to Zillow you grant them an irrevocable, perpetual, royalty-free worldwide license to: (i) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your User Materials, in connection with the Services or in any other media; and (ii) sublicense these rights, to the maximum extent permitted by applicable law.

Furthermore Zillow restricts your use of photos by prohibiting your from reproducing, publicly displaying, or otherwise make accessible on or through any other website, application, or service any reviews, ratings, or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services. (emphasis mine).

The restriction on reusing images is specifically restricted to use on other websites. There is no restriction against using images from the Zillow website in an updated listing for the same property.

.

The key here is that anyone uploading an image to Zillow, grants Zillow a very broad license to do pretty much whatever they want with the images. You have lost the right to restrict the images from being used by another Realtor. I don't have access to the MLS terms of service, but I would be amazed if they did not require a similarly broad license.

If a you want to be able to restrict these additional uses of images, then you can't allow them to be uploaded to Zillow, the MLS, or many other services. Clearly, that makes the images almost useless to a Realtor, so such restrictions are not practical when targeting that market.

I don’t see where it grants a license to another realtor though. You are just assuming that because it doesn’t say you can’t do it that you can. I agree that you couldn’t go after Zillow for having the photos on their site but if another realtor has downloaded the photos and re uploaded them to Zillow, that realtor is violating the copyright and the images need to be taken down and it sounds like Zillow does just that.

Zillow explicitly allows real estate professionals to use the images, as long as they are not using it on another web site. Zillow also has the right to sublicense use of the images.

"If you are a real estate or mortgage professional acting in your professional capacity, you may additionally use the Services to provide information, to the extent permitted by applicable law, to your clients and to take actions on behalf of your clients (“Pro Use”). If you use the Services for a Pro Use, you represent and warrant that you have obtained all required authorizations and consents from your client. Except as expressly stated herein, these Terms of Use do not provide you with a license to use, reproduce, distribute, display or provide access to any portion of the Services on third-party web sites or otherwise."

The underlying issue here, is that these sorts of services require you to give them a very broad license for images. If you authorize use of images on these sites, these sites can pretty much do whatever they want with those images, and can allow others to also do so.

Zillow explicitly allows real estate professionals to use any images from Zillow for the benefit of your client. That includes images taken for other agents for previous sales. This is not a copyright violation, as a requirement of uploading images to Zillow is that you allow them to do grant exactly this sort of license.

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The problem is a photographer who authorizes his client to use images on these sorts of sites, and then imposes restrictions which are not consistent with using the images on these sorts of sites. You can't allow the image to be uploaded to Zillow, and then restrict Zillow from allowing others to use the images.

Keep in mind, that when it comes to the law, common sense and fairness cannot be always be counted on.

“If you are a real estate or mortgage professional acting in your professional capacity, you may additionally use the Services to provide information, to the extent permitted by applicable law, to your clients and to take actions on behalf of your clients (“Pro Use”). If you use the Services for a Pro Use, you represent and warrant that you have obtained all required authorizations and consents from your client. Except as expressly stated herein, these Terms of Use do NOT provide you with a license to use, reproduce, distribute, display or provide access to any portion of the Services on third-party web sites or otherwise”

I still don’t see where Zillow is granting licenses for photos and the terms of use, as you point out, expressly say they aren’t providing licenses unless expressly granted.

If the Beatles put up a music video on YouTube with their own copyright material and give YouTube the rights to share their video that does not mean that I can upload the same video to YouTube and not be subject to copyright infringement.

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