Only Photos, Narrative Info in Real Estate Data Likely to Be Protected Under Copyright

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 By Anandashankar Mazumdar

Photographs and narrative descriptions of properties are likely to be original, creative works protected under copyright law, but more basic data, such as the number of bathrooms, is likely uncopyrightable factual information, the U.S. District Court for the District of Minnesota ruled Sept. 27 (Regional Multiple Listing Service of Minnesota Inc. d/b/a NorthStarMLS v. American Home Realty Network Inc., D. Minn., No. 0:12-cv-00965-JRT-FLN, 9/27/12).

Granting in part a motion for a preliminary injunction, the court applied the Supreme Court's guidance for protectability of factual information as set forth under the 1991 Feist decision.

Database Collects Information on Real Estate.

Regional Multiple Listing Service of Minnesota Inc. d/b/a NorthStarMLS, Saint Paul, Minn., is a real estate listing service with 13,000 participating real estate brokers and agents.

The company maintains NorthStarMLS, a private database of real estate listings and related property records data for real estate in Minnesota and Wisconsin.

Data is collected from the member brokers and agents and includes factual data, comments, opinions, and descriptions as well as photographs of listed properties. In return for contribution of data, participants are offered a service called the IDX Data Feed, a compilation of listings for their own websites.

NorthStar has registered with the Copyright Office its copyright interest “in the selection, coordination, and arrangement of the fields, descriptors, and content” of the database.

When a broker or agent joins the network, NorthStar offers an option to share copyright interest with the contributor, and if the member chooses this option, the applicable contract offers the right to “make unfettered and unrestricted use of the [copyrighted item] in perpetuity.”

On the other hand, the agreement prohibits the disclosure of listing data in violation of the terms and sets $1,000 in liquidated damages for leaking.

American Home Realty Network Inc. of San Francisco operates the NeighborCity website through which it offers information about real estate on the market, such as prices, images, and descriptions.

The website also allows internet users to request a telephone call from the agent associated with a particular available property. If the agent is not available for a telephone call, NeighborCity seeks out other agents to interact with the user. Users can also request more information or schedule visits. Should such a contact result in a sale, the agent shares his or her commission with NeighborCity.

Finally, NeighborCity also offers data in the form of performance metrics, rankings, and statistics.

NorthStar sued NeighborCity, alleging copyright infringement and moved for a preliminary injunction.

Different Types of Material Distinguished.

To determine whether an injunction was justified, Judge John R. Tunheim applied a four-factor test set forth in Roudachevski v. All-American Care Centers Inc., 648 F.3d 701 (8th Cir. 2011). The court recited the factors:

  • (1) the probability that the moving party will succeed on the merits; (2) the threat of irreparable harm to the moving party; (3) the balance of harms as between the parties; and (4) the public interest.

Turning to the first prong of the test, the court divided the types of material in which NorthStarMLS was asserting copyrights. It determined that there was a demonstrated likelihood of success on the merits with respect to the photographs and narrative descriptions about the listed properties, but not with regard to the other material.

The court disposed of the question on the photographs in just a few sentences, finding that photographs are creative and original works in which rights can be asserted under the Copyright Act.

Among the other data, the court also found a likelihood that the narrative “public remarks” and “agent remarks” were also copyrightable works.

In so ruling, the court applied Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340, 18 USPQ 2d 1275 (1991), which held that when it comes to compilations for factual information, the underlying facts cannot be protected, but a “particular selection or arrangement” of those facts might be.

The court said:

  • These remarks are uniquely-phrased descriptions of property, highlighting those parts of a property that might be most attractive to agents and the public; for example, the public remarks for the Chisago Lake Township property state, “Sandy lakeshore, yard w minimal maintenance, perfect for that getaway you've been looking for.” … These narrative descriptions are likely sufficiently creative to warrant copyright protection.

However, the other kinds of data, such as the basic, factual descriptions of the features of a property—such as the type of flooring, the available appliances, and the number of bathrooms—are not likely to qualify as creative works.

Even the names of the categories chosen by NorthStar for this data were likely not sufficiently creative, the court said, on the basis that there were “limited ways of expressing the basic facts included in these field descriptors.”

Turning to the remaining factors of the Roudachevski test, the court found that for the photographs and the narrative descriptions, the factors weighed in NorthStar's favor. The court thus issued a preliminary injunction with respect only to those elements of NorthStar's data.

NorthStar was represented by Calvin L. Litsey of Faegre Baker Daniels, Minneapolis. American Home was represented by Jeffrey C. Brown of the Sapientia Law Group, Minneapolis.

By Anandashankar Mazumdar

The opinion can be found at: http://pub.bna.com/ptcj/RegionalSept27.pdf.