Down The Wabbit Hole
Since you can’t be vewy, vewy quiet, at least be vewy, vewy
careful with your advertising and social media
There are three kinds of online advertising
behavior that REALTORS®
typically engage in: (1) the straightforward
kind that gets your name
out there; (2) the inadvertently noncompliant
kind that gets you out there and ticks
someone else off in the process; and (3) the
knowingly noncompliant or highly questionable
kind, where you hope the rewards are
greater than the risks.
There’s an obvious diff erence between
inadvertent and on-purpose violations: In
one case you accidentally fail to make that
left turn at Albuquerque, while in the other,
of course you realize this means war. But the
same laws and policies apply to both kinds
of cases when a complaint gets made. The
main diff erence will simply be how much
mitigation you can show.
Some common questions REALTORS®
frequently ask about online advertising, and
their short-form answers, are:
Q: Can I automatically use another REALTOR’
® photos or listing remarks now that I
have their former listing? A: No.
Q: Can I sue someone who has used my
photos or listing remarks now that they
have my former listing? A: Maybe.
Q: I took a social media post down aft er I
received a complaint about it. Can I still get
into trouble for something related to that
post? A: Yep.
Q: Who is responsible for the content of
comments people make underneath my
Facebook post? A: Eh, could be you, Doc.
Five issues in the copyright and/or social
media realm these days involve, in no particular
order:
1. REALTORS® using photos that they do
not have appropriate permission to use;
2. REALTORS® advertising other REALTORS’®
listings without the proper prerequisites;
3. REALTORS® engaging in misleading or
downright false advertising;
4. REALTORS® disparaging other REALTORS
® or assisting colleagues in doing
so, and
5. REALTORS® performing the unlicensed
practice of law.
I know these are frequent scenarios by
the number of times I’ve been asked how to
avoid them or to assist REALTORS® accused
of already committing these actions, as well
as by the number of ethics hearings I’ve
observed as association counsel where such
activities sparked the complaint. Each time
something like this happens, the resulting
complaint against you as a REALTOR® is never
as much fun as me watching old Looney
Toons cartoons while I write this article.
Take, for example, the unauthorized
use of someone else’s listing
photos or remarks. Copyright
infringement is a hot-button
issue these days, and it seems
that everyone’s favorite response
is, “FAIR USE!” Not so fast, you
wascally wabbit. Fair use — which
the dreamers will try to tell you
means an unfettered entitlement
to use someone else’s work once
it’s in the public domain — is
narrow, limited, and complicated
and quite certainly not the
protection many REALTORS®
want it to be. It’s also only a
defense that may provide any real
protection aft er you have already
been served with a lawsuit for copyright
infringement. Well what did you expect in
an opera? A happy ending???
For those who both will and won’t be attending
the 2018 Real Estate Legal Summit,
I encourage you to read Articles 12 and 15
of the REALTOR® Code of Ethics (actually,
please read the entire COE on a regular basis);
please review your licensee advertising
requirements; please legally acquire all photos
and remarks that you put in your listings;
and please never forget to remember that
“mud” spelled backwards is “dum.”
(And if you have Bugs Bunny’s or Elmer
Fudd’s voices running through your head
now, my real work here is done.)
> Kristy Harrington, Kristy L.
Harrington, P.A., will be presenting
“Copyright & Advertising/Social
Media” at the 2018 Real Estate Legal Summit on September
8 (visit orlandorealtors.org to register). She
can be reached at Kristy@LawHarrington.com
Kristy Harrington
2018 Real Estate Legal Summit Class Instructor:
“Copyright & Advertising/Social Media”
SPECIAL SECTION
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