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CopyrightLawPhotography for Real EstateVideoVirtual Tour

That's my photo! A life lesson in copyrights.9421

immersivespaces private msg quote post Address this user
As some of you on here know, I am a strong proponent of copyright protection. As an image maker for over 20 years, I think I have literally seen it all at this point when it comes to clients and third parties trying to circumvent my rights as a photographer, and also my potential profits. That brings me to an interesting interaction with a past client of mine this week...

We routinely shoot high-end luxury properties for listings on the MLS as well as for editorial use in architectural and design magazines. When we shoot these properties, we typically give our realtor clients "unlimited usage for the term of the listing for the purpose of marketing the property for sale or lease." If they want to continue to use the image in marketing for their brokerage as it relates to that listing, we often include that at no extra charge.

Earlier this week I picked up a design magazine at the newsstand and to my surprise, the cover image was a photo I had taken for a broker a couple of years ago of this beautiful home. Inside was a great article about the 12,000 sq ft ocean-front home full of images that I had taken covering 8 pages and 12 images in total. The property had sold within a month of my photographing it, and as per the terms of our license, the usage granted for the use of those images expired with the listing. To my surprise, listed in the byline of the article, the photo credit was given to the broker for whom I had shot the photos. Of course, I immediately reached out to the broker, the magazine, and my attorney. The broker insisted that he owned the photos since he paid me to shoot the home and it was a "work for hire." (It wasn't.) He, in turn, sold the images to the magazine and claimed ownership of them.

The term "Work For Hire" should make every real estate photographer cringe. It is a legal agreement that transfers complete ownership of your images to the person or company that hires you to do the job. If you are ever offered one, you should be very cautious about signing it without negotiating a reasonable fee for the ownership of your images. In this case, I never signed such an agreement, and personally, I can only recall a few occasions when I have ever signed such an agreement. The longterm value of my photos as stock or resale for future listings is money left on the table with a work for hire agreement. More so, selling images to magazines have been a substantial boost to the profitability of my shoots over the years.

After much back and forth, the broker's attorney sent me a settlement agreement to compensate me for the use of my photos in the magazine. After a quick review, I immediately rejected the settlement because they tried to sneak in a cleverly worded work for hire statement and transfer of ownership of the images. They also had the audacity to put in a clause that would prevent me from shooting that property again for 10 years. At this point, I have realized that no reasonable agreement would be made and my attorney is drafting paperwork to file a federal copyright suit against the broker. In the course of my week, I have learned that there have been several photographers who have fallen into similar situations with this same broker. Sadly, most simply signed the settlement and moved on. They will have no such luck with me.

So, while this was fresh on my mind, I thought I would share some thoughts with you about copyrights as it pertains to property imaging professionals. These apply to photos, videos, and yes, virtual tours. These are just a few of the common questions I get when I do workshops about copyrights and licensing as it pertains to image makers here in the U.S. If you live in a different country, these may not apply to you equally. I am not an attorney, but I have been working commercial photography and imaging for many years and have a strong working knowledge of these things. Of course, you should consult with an attorney before adopting any agreements or signing anything with your clients that you do not fully understand.

Who owns your photographs?

According to the U.S. Copyright Office, if you pushed the button, you own the images... unless you sign the ownership of them over to a third party. Some providers of services (such as Matterport) have very "cloudy" terms with regard to copyrights and ownership of your work. If you work with these companies, be sure to review their terms carefully and understand fully what you own. It helps to consult an attorney.

Sell or license?

How much time and money have you put into perfecting your skills as an image maker? Your ability to create images is valuable and yet many photographers simply throw away money by failing to understand licensing. When you provide images to a client, you are not "selling" them the image, you are selling them the right to use the image in a way that you determine. This is called a license. A license simply says what they can use the images for, and for how long. In some cases, you can include a requirement for photo credit in the usage. For example, images that are going to be published in a magazine should include a credit to you as the photographer.

Do you have an agreement for shooting listing and/or editorial property images?

You should. Your agreement can be simple or very complex, the key is to make clear what your clients are hiring you for and what rights you are granting to them and retaining for yourself.

The National Association of Realtors provides realtors several boilerplate Listing Photo Sample Agreements on their website. They are TERRIBLE and you should never sign one unless you are handsomely compensated for it. As the service provider, you should consult with an attorney and draft your own listing agreements.

Do you register your photos with the U.S. Copyright Office?

Every month, I burn a disk of images I shot that month and register them with the U.S. Copyright Office. Photographers may register up to 750 photos with one application and one filing fee using the group registration option for photographs. The simple step of registration will ensure that as provided under U.S. copyright law, you, the copyright owner, will be entitled to recover the actual damages suffered as a result of the infringement, and any profits that the infringer made that is attributable to the infringement. So basically, a photographer could potentially be awarded the full commission on a real estate sale plus additional damages up to $150,000 per occurrence for each image. Without registration, being awarded these damages becomes much more difficult.

What are your images worth?

Probably more than you think. I have resold images taken years ago that have netted me many times over the initial fee I made when I shot them. You should consider all the potential uses of your images in the future when determining their value. Do you relicense images for listings? Are your images magazine quality with the potential to be used as editorial content? Could your images be used as stock? There are literally hundreds of ways to make money off your images long after the original use has passed.

Are you vigilant about defending your copyright?

It's important that you are, especially if you come to a situation where a lawsuit is warranted. If you have a history of just ignoring infringement, it could hurt you in a lawsuit. We are vigilant about immediately notifying any infringer of their actions, but we aren't militant about it. Our initial contact simply says, "Hey, we are glad you liked our images enough to use them in your listing, however, they are copyrighted and you will need to purchase a license to use them or remove them from your listing." More times than not, they will license the images. In the rare case where we need to push harder, we simply file an ethics complaint with the local realtor board. Most MLSs have a policy and related fines for using copyrighted images without permission. This includes the use of virtual tours which we have seen an increase of in recent years.

Have you visited copyright.gov?

Your rights as a photographer are protected under title 17 of the United States Code. It is worthwhile for every photographer to read through the law to gain a basic understanding of your rights. In addition to having the full text of title 17, copyright.gov has a wealth of information about copyrights and how to register your works.

Will defending your copyright hurt your business?

In my experience, defending my copyrights has actually increased my business. Sometimes our initial contact with an infringer leads to them becoming a long-term client. It's all about approach. In many cases, realtor's don't know about copyrights or perhaps a homeowner gave them photos and didn't tell them they didn't have rights to use them. Simply opening the dialog can create an opportunity to turn an infringer into a customer. At the end of the day, if you aren't able to resolve your copyright issue with someone, they probably aren't going to be someone you want to do business with anyway.

So there it is... I hope you found this information... well... informative. What kinds of copyright issues have you experienced? What lessons have you learned that would help other image makers better protect their rights?
Post 1 IP   flag post
ArchimedStudio private msg quote post Address this user
Great read! Thanks a lot.

Since January, we ran into 3 cases of realtors using our photos (taken for the previous listing agent).
Out of the 3, 1 cooperated and removed our photos. 1 was a total jack@$$, almost threatening us every which way possible - it took him 2 weeks to send a new photographer to take new pictures, and finally stopped using our photos. We didn't pursue any more actions with this guy as his negativity and awful vibes were draining.
The 3rd one started as the second one, but they finally agreed on paying the licensing fee we offered them.
2 and 3 were not aware that the photographer owns the copyrights. They all think that since they pay for the photos, they can do anything with them, including re-sell them to the next realtor if they want to (that's what happened in these 2 cases).

I really like your friendly message as a first contact. Maybe we were a little too by the book. We'll definitely try that next time. (and our lawyer is also preparing something a bit more scary and "official" on the side).

Thanks!
Matt
Post 2 IP   flag post
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DanSmigrod private msg quote post Address this user
@immersivespaces

Wow! Thanks for your thoughtful post about copyright.

My bad judgement likely cost me $2,833 in re-licensing and risk loosing a (very) good client. (learn from my mistakes)

Listing goes to another broker? Matterport?

Could you do a separate post about Zillow and copyright?

Hi All,

Some related WGAN Forum discussions:

PPA: Copyright Small Claims Action Alert
Matterport Terms of Service / Copyright Law
Why You Want to Retain the Copyright in MP
How do you add your copyright info to GSV?
Copyright Violation - What would you do?
Transfer Model Also Transfers Copyright?
Ever had your creative work stolen?

Enjoy the 3-day holiday weekend (in the US),

Dan
Post 3 IP   flag post
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GFHoge private msg quote post Address this user
Wow! I can't believe how timely this is. I just came from a Legal update meeting at my local Realtors Association as I am also a Florida Real Estate Broker. We discussed this very subject for quite some time. This business (photography) is very rewarding and as I spend more time learning, I appreciate the help from the veterans in the business.
The links are invaluable. Thank you all for your input as I had it on my to-do list to get a contract for my 3D 360 Homes business, now it is on the front burner as is now the registration with Copyright.
I am still looking for a good contract to start with as I am not a lawyer, but am familiar with pre-written contracts.

Thanks again, and have a great weekend with your family and friends.
Think of those who have sacrificed all.
Geof
Post 4 IP   flag post
mori private msg quote post Address this user
Does anyone know if Matterport has also changed the Legals and TOC´s with the pricing update or in general?

Besides in germany their legals are basically ineffective as the court in Berlin has made a judgement in 2016 on WhatsApp that the legals and TOC´s must be provided in the country language. Matterport is able to provide a lot translated marketing info to sell, but not the most important information - the sales conditions. I assume that this is also applying for some other european countries like France and Spain.

"Foreign language terms and conditions for consumers ineffective of the Data Protection Office | 21 Jun 2016 | blog

Many apps, online services & Co. from foreign providers also offer their services to users from Germany. However, it is not self-evident that also German-speaking terms and conditions are used. The Berlin Court of Appeal has now clarified: Terms and Conditions must be in German, as consumers are otherwise inadmissible disadvantage."

The above has been auto translated with Google. This is the original german resource:
https://www.datenschutzkanzlei.de/fremdsprachige-agb-unwirksam/

The legal file from the court of Berlin: https://www.vzbv.de/sites/default/files/whatsapp_kg_berlin_urteil.pdf

And their result: "The terms and conditions are thus ineffective for German consumers."

This makes MSP business even more difficult here as we can´t then refer on contracts to their legals or need to translate these in german.
Post 5 IP   flag post
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DanSmigrod private msg quote post Address this user
And, this from Photography For Real Estate Blog (29 May 2019) ...

What Do You Mean, “I Don’t OWN the Photos?!”

Dan
Post 6 IP   flag post
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DanSmigrod private msg quote post Address this user
Hi All,

A related discussion from PFRE ...

Photography For Real Estate Blog (24 June 2019) How to Protect Yourself from Copyright Infringement

Dan
Post 7 IP   flag post
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fotoguy private msg quote post Address this user
Excellent article and timely for me as well. I have a realtor wanting to use one of my images on the cover of a magazine. How much should I charge for providing this high res image? I know I will request photo credit but I have no idea what market prices are for using my photograph.
Post 8 IP   flag post
Changesin3d private msg quote post Address this user
This is a very timely post. I was just going to ask other MSPs if or how they disclose that Matterport has a "license" to the Scans. For some time it has been my understanding that Matterport keeps a copy of the scan even after it is deleted, and the terms of service seems to get them the same authority that a copyright holder has.


Maybe now is the time for all MSPS to talk about disclosure to the property owner and or Realtor for privacy issues. The games Google and Facebook are playing with privacy, and manipulation of the data including scans only going to heighten. I do not see where Matterport indemnifies us from any misuse of the copy they say they have the right to keep.

To make the point, do you know of any other CAMERA manufacture that has any thing similar in the way of a terms of service, Canon, Nikon, Sony even Ricoh for the Z1 that is capable of making a Matterport?

We are now likely at the point were Matterport should clarify what they are doing. At least as I have heard the CEO in a broadcast interview, they build CORTEX with our scans. I do not know of anyplace where they notified us that they were going to do this. Do you?

I expect silence out of Matterport on this, as it opens up the coveted Terms of Service that so many people have had questions about before. What say you Matterport?
Post 9 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
From Matterport Terms of Use, updated May 31, 2017

16. Policy Regarding Third-Party Copyrights.
Matterport respects the intellectual property of others, and we ask our users to do the same. Matterport will promptly remove materials from the Service in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright.

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Matterport’s copyright agent with the following information: (a) a description of the copyrighted work or other intellectual property that you claim has been infringed; (b) a description of where the material that you claim is infringing is located on the Service; (c) your address, telephone number, and email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner; and (f) your electronic or physical signature. You may submit this information to Matterport’s copyright agent by email at copyright@matterport.com or by mail to: Matterport, Inc., 352 East Java Drive, Sunnyvale, CA 94089, Attn: Copyright Agent. Matterport may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.

If you believe that your material is not infringing or has otherwise been removed by mistake, please provide Matterport with a written counter-notification containing the following information: (i) your name, address, and telephone number; (ii) a description of the material that was removed and the location on the Service where it previously appeared; (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; (iv) a statement that you consent to the jurisdiction of the United States District Court for the Northern District of California), and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person; and (v) your electronic or physical signature. You may submit this information by the methods described in the prior paragraph. Please note that we will send any complete counter-notifications we receive to the person who submitted the original DMCA notice. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the removed materials. Until that time, your materials will remain removed. We will provide a copy of the original DMCA takedown notice upon request.

Please note that if you fail to comply promptly with the foregoing requirements or any request from Matterport for additional information, your DMCA notice or counter-notification may not be processed further.
Post 10 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@mori Checking this German law issue through the EMEA team to look into this issue. Thank you for the heads up.
Post 11 IP   flag post
Changesin3d private msg quote post Address this user
Quote:
Originally Posted by GFHoge
Wow! I can't believe how timely this is. I just came from a Legal update meeting at my local Realtors Association as I am also a Florida Real Estate Broker. We discussed this very subject for quite some time. This business (photography) is very rewarding and as I spend more time learning, I appreciate the help from the veterans in the business.
The links are invaluable. Thank you all for your input as I had it on my to-do list to get a contract for my 3D 360 Homes business, now it is on the front burner as is now the registration with Copyright.


I have been concerned with the copyright situation since the last time Matterport's Bill Brown the old CEO had to deal with a planned Change in the Terms of Service. I have yet to see any industry disclosure that would cover informing the client that you own the copyright but Matterport has a right to a copy and can use it like they want. Then add to the complexity, should you inform the client in the document where you agreed to give this license Matterport can change it anytime they want taking even more rights?

What is going to happen with the copy they keep? Why would someone who is only processing an image need to keep a copy. Is there a business benefit for them to keep this? If they are gaining profit from the image should they not be paying the copyright holder.

If you were to sell the copyright would you not have to disclose that to the buyer of the scan.

Is there going to be a slippery slope between Real Estate Attorneys and Matterport. I can feel that a bunch of Realtors who own these cameras will ask for a review of the rights by the Legal Teams at the National Association of Realtors. One of my favorite Realtors once told me that risk kills a lot of good ideas. Realtors want to keep the commission they earn. The reason I ask this is I fear privacy issues with the copy? Does delete really mean delete?

Maybe this really is a "matter" to give attention to.
Post 12 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@Changesin3d You have to read the Privacy Policy in concert with the Terms of Service in order to answer your questions. clickable text

"it has been my understanding that Matterport keeps a copy of the scan even after it is deleted"

See "Images Stored" in Privacy Policy: ..."For additional information on designating your imagery as “public” or “private”, restricting third parties from editing or re-sharing your imagery, and the consequences of archiving your imagery, deleting your imagery and/or terminating your account, please also see the Matterport Cloud Subscription Agreement. We will store your imagery for the longer of (i) the period of your subscription to the Matterport Cloud or (ii) 10 years from the date of first import into the Matterport Cloud."

Comparison to Canon et al: You are comparing two very different classes of camera classes/solutions. A closer comparison would be another cloud-based 3D modeling solution, not a 2D camera.

What is Matterport doing with the scans? Please again refer to the published Privacy Policy:
"Images stored. When you capture imagery and submit it to the Matterport Cloud (as described in the Matterport Cloud Subscription Agreement), we may collect personal information which is depicted within the imagery you submit. We do use this information in aggregated form for analytics and machine learning, but the results of these activities do not contain or disclose any personal information that is identifiable to you. We do not use this incidental information for any other purpose, but this information may be publicly displayed if you choose to display the underlying imagery publicly through the Matterport Cloud. If you do not wish to publicly display personal information depicted in the imagery you submit, you should either refrain from capturing such personal information in your imagery or designate the imagery as “private” in your Matterport Cloud account."

Since whether there is personally identifiable information (PII) in the scan is up to you, the photographer, it appears to my layman's eye that the disclosure is up to you/Realtor as to what was shot that might have been PII. I again implore you to check with you legal counsel on this matter if it is causing concern.
Post 13 IP   flag post
Changesin3d private msg quote post Address this user
Quote:
Originally Posted by Jwbuckl
Comparison to Canon et al: You are comparing two very different classes of camera classes/solutions. A closer comparison would be another cloud-based 3D modeling solution, not a 2D camera.


You make a very good point maybe Matterport should quit advertising "cameras" and call it a "cloud based" 3D modeling solution, not a camera. Consider this Matterports with Cortex can be made with a Ricoh Theta 2D Camera. I believe Cupix.com does not keep a copy, nor do they claim any future use. I think the same Terms of Service is being used for the Cortex Models correct?

Quote:
Originally Posted by Jwbuckl
What is Matterport doing with the scans? Please again refer to the published Privacy Policy:
"Images stored. When you capture imagery and submit it to the Matterport Cloud (as described in the Matterport Cloud Subscription Agreement), we may collect personal information which is depicted within the imagery you submit. We do use this information in aggregated form for analytics and machine learning, but the results of these activities do not contain or disclose any personal information that is identifiable to you.


Again thank you for making my point. You are keeping a copy and using the copyrighted information. As an MSP should we not be telling our Realtors that we can not "delete" it. Although you want to claim that is the limitation of your use in this forum all you have to do is go to the opening of the TERMS of Service, you know the part that says you can do as you please. THIS PART= "Matterport reserves the right to revise any of these Terms in our sole discretion at any time and without prior notice to you by updating this posting, such changes to be effective prospectively."

Put yourself in other shoes for just one minute. Do not quote the terms of service think of the current waive of privacy issues. Google , Facebook and others. Matterport seems to be saying they can do as they please and make any changes anytime they want. How long do you think that can last? What assurances can you give, someone can not hack into the system and gain personal data. Me, I would consider my floorplan personal data and because I feel that way, should a Realtor and or buyer and seller not be told? The MSPs do not hold control of the scan, do they and if they do not control the scan how can they control the copyright?

Is there an option to "opt out" of Matterport using our scans?
Post 14 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@Changesin3d Quote:
Originally Posted by Changesin3d
What assurances can you give, someone can not hack into the system and gain personal data.


From the Privacy Policy disclosure found here: clickable text
What security measures do we employ for the Services?
"To help protect the privacy of data you transmit through the Services, where personal information is requested, we use technology designed to encrypt the information that you input before it is sent to us. In addition, we take commercially reasonable steps to protect data that we collect through the Services against unauthorized access. However, you should keep in mind that the Services is run on software, hardware and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control.

Please also be aware that despite our best intentions and the guidelines outlined in this Privacy Policy, no data transmission over the Internet or encryption method can be guaranteed to be 100% secure."

I am not understanding your point about calling the Pro2 3D Camera a camera. Many, many cloud-connected cameras are called cameras. For instance, IP-cameras like "Nest". They work solely in concert with their cloud service to take, process and deliver imagery. Different use case/product but parallel camera/cloud combo example.

Quote:
Originally Posted by Changesin3d
You are keeping a copy and using the copyrighted information. As an MSP should we not be telling our Realtors that we can not "delete" it.


You may have it in your mind that after you delete a model that Matterport can and does resurrect a deleted model to show and say, market with. This is not the case. Cortex uses a mathematical derivative of the model. It doesn't exist as you may know it after a time. I understand that this may be confusing as we are not talking about pictures/videos, but algorithms at this point. Cortex is a machine learning model which gets smarter and more accurate over time with more scans. This is not what Cupix offers at all. With billions and billions of scan points informing the system. We are not taking the 360 images and generating a model with photogrammetry.

I am guessing that a closer comparison to how Matterport processes imagery would be GEOCV and you will see parallels in their Terms of Service to reflect that.
From TOS: "LICENSES FROM YOU

You grant to GeoCV and its service providers the non-exclusive, worldwide right to use, copy, transmit and display any data, information, Content or other Materials, provided to GeoCV by you in the course of accessing and/or using the GeoCV Service. Notwithstanding the foregoing, GeoCV’s obligations regarding identification and other information concerning your personal information shall be governed by the terms of the Privacy Policy as available on www.Geocv.com. The terms of the Privacy Policy are expressly incorporated herein as though set forth in full."

From TOS: "YOUR CONTENT
...You acknowledge and agree that we may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of us and the public. You understand that the technical processing and transmission of the GeoCV Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices."


I hope this has helped with providing perspectives and answers to your questions.
Post 15 IP   flag post
Changesin3d private msg quote post Address this user
@Jwbuckl I think you are missing my points so let me try it again. First, Matterport says you can change any portion of the TERMS of Service anytime you want, Do we agree? Is that not what is in the first section of the Terms of Service?

"Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting. Thus, You should visit this page periodically for changes."

Second point, Matterport has a right to copy all the data that comes out of the camera? They can pretty much use this however they want to. You could build a massive data bank change the Terms of Service including your license rights and do what you want. Do you disagree that this is not very possible based on the way the documents are drafted. I think this is just what caused the uproar with Bill Brown.

The privacy issue here is elephant in the china shop. If you go to the Terms of Use, instead of you indemnifying the MSP for violation of privacy issues you have us indemnifying you. Clearly Matterport considered privacy and the nature of the information in that scan, or you would not have included that in the Indemnificaton quote below. If one of our clients is insistent on removal we have no way to insist total deletion happens, as I can see. Is there anything in the Terms of Service that says we can force deletion of all of our Copyrighted material or does your license supersede our copyright?

Indemnification
You will indemnify, defend, and hold harmless Matterport, its affiliates, and their respective directors, officers, employees, and agents, from and against any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including attorneys’ fees) arising therefrom (“Claims”), brought by any third party that is based on, or arises out of: (a) your activities on or use of the Service; (b) your violation, or apparent violation, of any of these Terms; or (c) any allegation that any material you submitted to Matterport violates any law or infringes any third party right, including any intellectual property or privacy right. You shall not settle any Claim unless such settlement completely and forever releases Matterport from all liability with respect to such Claim or unless Matterport consents to such settlement in writing.

Here is the issue, Matterport documents are very difficult to understand, Explain to us how a Matterport Service Partner can with any level of confidence present the "legal or "copyright" aspect to clients to inform (disclose) or protect for privacy concerns. You seem like a fair man tell us how we disclose to clients that we have given license to Matterport and they hold the right to make any change at any time to almost all their legal documents. Matterport seems to have a disproportionate set of rights in the contract including "TERMINATION" of the MSP at their discretion. (Section 9 of the Terms of Use)

As Matterport states on their website as they recruit new Matterport Service Partners into the business opportuinty, and I quote.

Whether you’re an experienced photographer or an entrepreneur looking for a new venture, let us help you build a business using Matterport’s industry-leading 3D technology.

Do you figure that and new "ENTREPRENEUR" would understand all of this? Are there any Matterport videos done about the Terms of Service Document? Do you help the new person understand these terms and that you can change them anytime you want?

"Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting. Thus, You should visit this page periodically for changes."

That is one powerful statement that MSP have to deal with. It sorta has a Parental tone to it.
Post 16 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
Quote:
Originally Posted by Changesin3d
@Jwbuckl I think you are missing my points so let me try it again. First, Matterport says you can change any portion of the TERMS of Service anytime you want, Do we agree? Is that not what is in the first section of the Terms of Service?

"Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting. Thus, You should visit this page periodically for changes."


Yes, agreed. Conventional language in the industry. Market forces keep certain changes in check.

Quote:
Originally Posted by Changesin3d
Here is the issue, Matterport documents are very difficult to understand, Explain to us how a Matterport Service Partner can with any level of confidence present the "legal or "copyright" aspect to clients to inform (disclose) or protect for privacy concerns.


I can try to make it simple from my own perspective as a photography business owner myself. I can't speak to what is "inform (disclosure)":

1. It is the responsibility of the Photog to get assurances from the homeowner that it is permissible to scan and put their home online until it is sold (or agreed)
2. It is the responsibility of the Photog to ensure nothing private is photographed/scanned
3. Matterport does use model data, in an aggregated form for analytics and machine learning, but the results of these activities do not contain or disclose any personal information that is identifiable to either the Photog or the end client. Your information remains private. It is Matterport's responsibility to live by its commitment is the Privacy Policy.

Legal language can be really hard. Matterport is delivering really advanced technology too. Machine Learning? Whole other topic. I am not sure that MP's TOS and PP are any more complex than average, but as always, we really urge you to review these documents with your attorney should there be any ambiguity on your part. As mentioned, I am not an attorney.

I can tell you that with well more than 1.5M scans now on the Matterport platform these documents have been tested. But conditions/technologies/laws/market requirements change with time and that is why the ability to change TOS is so common in Cloud Services agreements. It is not for nefarious or for whimsical reasons.

I hope that this has helped answer your questions.
Post 17 IP   flag post
Changesin3d private msg quote post Address this user
Quote:
Originally Posted by Jwbuckl
Quoteriginally Posted by Changesin3d@Jwbuckl I think you are missing my points so let me try it again. First, Matterport says you can change any portion of the TERMS of Service anytime you want, Do we agree? Is that not what is in the first section of the Terms of Service?

"Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting. Thus, You should visit this page periodically for changes."

Yes, agreed. Conventional language in the industry. Market forces keep certain changes in check.


Well we are getting to the truth, now for empathy for your clients. Matterport has sold their cameras to REALTORS and BROKERS who practice a sliver of the law and deal with contracts and disclosures all day long. To make a point find a Real Estate contract where it says the seller can change the contract whenever they want. Do one thing to this sentence just change the word Matterport to Seller.


"Matterport reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting. Thus, You should visit this page periodically for changes."


You address this as "Conventional language in the industry. Market forces keep certain changes in check."

Here is what keeps the market, your clients, the buyers of the "closed camera and hosting system" in check, the verbiage in the terms of service Section 9 Termination.

Matterport may terminate your use of the Service at any time in our sole discretion. Upon any such termination, you must destroy any material obtained from the Service and all copies thereof. The provisions of these Terms concerning Site security, prohibited activities, ownership, third-party copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity, privacy, and jurisdictional issues shall survive any such termination.

Might I note I read a post her just a few days ago, where the Admin posted for someone who wanted to be anonymous, a post about billing. Why? I would think he is aware of Matterport's power in the contract and does not want any adverse action taken against him.

You will see above in this discussion there was a Realtor who discussed the "copyright" issue and how he had gone to a meeting exactly about that at his Board of Realtors. Privacy and Copyright are now on the "forefront" of the Realtors minds. I would suggest that Matterport consider this as a "Market Force" to consider. I would suggest that Matterport take this into consideration. Knowing all the one sided power you have, and that you are the sole holder of the DATA and have rights to it. You can also change anything you want anytime you want. Well I see where Realtors will want to have this clarified.

You may have seen in the last few days that GOOGLE has run into some real problems with how they are shaping data. Even to the point of influencing an election. Senator Cruz and the rest of Congress are very interested in Data and Privacy. It appears that Matterport not only has all of our data, of thousands of homes, but they can use it any way they want. They can change the contract in all sections and they can terminate us as they please. I have heard the term "Digital Gangster" recently used, it will be interesting to see how that develops.

I would expect that Matterport would want to get out ahead of this, as to protect your scanning "Partners." Saying GEOcv does this also is not leadership or protection of the PARTNERS, you have brought into an entirely closed system.

Please answer this question can we "option out" of you using our data to build more products that solely benefit Matterport?
Post 18 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@Changesin3d Quote:
Originally Posted by Changesin3d
It appears that Matterport not only has all of our data, of thousands of homes, but they can use it any way they want. They can change the contract in all sections and they can terminate us as they please. I have heard the term "Digital Gangster" recently used, it will be interesting to see how that develops.


This is false and possibly defamatory. As for the practical ability for any online company, to make unilateral TOS or PP changes without prior notice, I, for the final time, refer you to your attorney. There is a practical reality why unilateral changes do not happen in the online world and yet these change clauses remain standard in the online industry. You more than infer that Matterport either has or actively threatens to terminate its customers who fail to behave in a certain way that pleases Matterport. This accusation is outrageous and designed to hurt Matterport's reputation by seeding fear, uncertainty, and doubt.

Quote:
Originally Posted by Changesin3d
Please answer this question can we "option out" of you using our data to build more products that solely benefit Matterport?


Cortex is a learning algorithm. That is to say that as it is exposed to data over time it becomes more accurate and more features can be developed for customers. Better product = goodness for Matterport and users.

Yes, you may "option out" by not using Matterport's 3D Capture Platform. No, Matterport will not work without creating and consuming an underlying 3D mesh and thus you may not opt out.

From the Privacy Policy: "We do use this information in aggregated form for analytics and machine learning, but the results of these activities do not contain or disclose any personal information that is identifiable to you. We do not use this incidental information for any other purpose, but this information may be publicly displayed if you choose to display the underlying imagery publicly through the Matterport Cloud. If you do not wish to publicly display personal information depicted in the imagery you submit, you should either refrain from capturing such personal information in your imagery or designate the imagery as “private” in your Matterport Cloud account."

I truly hope that this has brought some clarity. We have covered much since your first post.

In short and for the purposes of disclosure - see Privacy Policy.
- photographer/agent gives assurances that publishing a model is acceptable with a client like any photo
- photographer/agent gives assurances that nothing private is caught in the filming like any photo
- Matterport gives assurances that no PII is published and that archived or deleted models are non-PII derived mathematical use only (see the wording in PP)

Finally, trust in the fact that though TOSs and PPs of any company, including Matterport, may be subject to some change over time, these changes are not arbitrary and certainly not ones that will lose a customer base or these businesses/changes will be kept in check.
Post 19 IP   flag post
Changesin3d private msg quote post Address this user
Quote:
Originally Posted by Jwbuckl
This is false and possibly defamatory. As for the practical ability for any online company, to make unilateral TOS or PP changes without prior notice, I, for the final time, refer you to your attorney.


How can a question be defamatory? Before you arrive to serve Matterport in a the role of PR person there were discussions about copyright and license, that were a lot more aggressive than this. It was through communication just like this on this very forum that a solution was found with Bill Brown who apologized to all the MSPS. Is this not the very market forces that you mentioned.

You brought about a great idea, that is talk to an attorney. Maybe Admin could get another live WGA-TV with and attorney and answer some of the forum members questions. I bet that is such a good idea that someone does it soon.

Maybe at the same time we could get an Federal Trade Commission person on to discuss the Business Opportunity Rule. Why do all this back and forth with a PR person when we can tap the experts, right? Think of the Positive PR to participate in such a discussion.


As for the data. Tell me this. If we find a fault in a scan and go out 30 days later and need to just do a section of the scan, just one room. But we erased the scan from our Ipad. Then we get it stitched together with the old scan, where does the other information come from, if you do not keep it?

Is this even possible? Maybe you could explain archived.
Post 20 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@Changesin3d I believe you have had all your questions answered. No has said I am a pr person, only that I am not an attorney. ✌️
Post 21 IP   flag post
Changesin3d private msg quote post Address this user
@jwbuckl As I am concerned with privacy issues as others also reading this maybe, Please indulge me see if I am getting this clearly.

After our scans are deleted, say the MSP has told the Realtor it is gone, the only thing /data Matterport has is raw data, and you CAN NOT rebuild the scan from the raw data? A simple yes or no is all I am requesting. To state this another way, the data Matteport holds cannot rebuild a scan after the MSP deletes it.

If there is a place this is clearly stated any Matterport Document, Terms of Service etc. I am sure everyone would consider this issue resolved and thank you for your assistance.
Post 22 IP   flag post
SoldSquad private msg quote post Address this user
Addressing the original topic from ImmersiveSpaces:
I am a REALTOR© who hires professional photos (and MatterPort) for nearly all of my listings. One of the key questions I clarify during the hiring phase is that I only work with photographers who do 'work for hire.' I have no issue with the photographer retaining the right to use images I've hired them to capture for their own personal promotion, but otherwise I make it clear that I expect to retain ownership of the images.

Now - I recognize that I'm an outlier, as the vast majority agents do not understand the difference between WfH and licensed use. (And to be frank, most photographers don't even have a clue when I ask them.) But it's important to me that I have the right to use or resell those images at any time, and for whatever purpose I decide to.

Why do I feel this way? I have spent time and/or money to identify and get the property under contract to sell. I have spent time and/or money preparing the property to be ready to shoot. And I have paid a photographer fair market value to capture images of said photo-ready property. So if this were a fashion shoot, I would effectively be the producer, casting, art director, wardrobe, and makeup artist.

When a photographer creates stock images - they've generally take a risk by spending unpaid time to do the work and invested various out of pocket expense (for casting, wardrobe, etc) out of pocket, against the *possibility* of future licensing income. When a photographer is PAID to show up and shoot something that was set up and prepared for them - there is no personal investment or risk, therefore that should be considered work for hire. If a photographer were willing to shoot a property after preparing it for capture, while only expecting to be paid if/when the sale were done - then by all means, they ought to feel free to retain control and the rights to the images until paid. I'd be happy to license images on those terms any time.
Post 23 IP   flag post
Changesin3d private msg quote post Address this user
@SoldSquad I totally understand the way you feel and your logical approach. And I ask this hoping that @Jwbuckl can respond. But I would currently explain it this way, there is a third party of "rights" (by license) for Matterport's scans and those license rights belong to Matterport. Please correct me if I am wrong.

For what I will call privacy concerns I have asked if the Matterport Service Provider deletes a scan of a residence if the scan is gone in TOTAL? Using the most simple language does delete mean delete? Or is there data left over that can rebuild the scan? Or is a file held already assembled that anyone could look at? Anyone would include some employee, government official or retrieved by Court Order.

At least to me this is something I have a responsibility to share with any Realtor who I do a scan for so they may evaluate any risk they have and or inform their client.

Thank you for your thoughtful post. I hope Matterport can respond, all anyone wants are the facts to make a decision.
Post 24 IP   flag post
SoldSquad private msg quote post Address this user
@Changesin3d - My post was really intended to present a point of perspective about the licensing vs work for hire topic, which was where this thread started.

As far as MatterPort's terms of their license (which is a different topic entirely) they may have some claim to proprietary software being required to produce and display the works. Additionally, many of the terms of use of web services (like Facebook, for example) grant them the rights to display content you post - but that's needed in order to provide the service you are using - giving you the ability to share that content, not for that provider to lay claim of ownership or copyright of said content.
Post 25 IP   flag post
Changesin3d private msg quote post Address this user
@SoldSquad I understand your comments. Points well taken, but the question I was addressing to Jbuckl is pretty simple, as the copyright owner do we have the ability to delete the file and them not keep or use the scan in the future. Does delete really mean delete?

I would love to hear you opinion if you had paid for a scan and the client requested that it be deleted, and in their eyed "deleted means destroyed" should the scan be deleted if the scanner say so.

Stated another way, say you purchased the scans copyright, as the Realtor, would you expect the entire scan be deleted, if you requested that, so it could never be recovered by anyone for any reason?

Does delete mean delete?
Post 26 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@Changesin3d This information has been supplied to you above and in the Privacy Policy. "For additional information on designating your imagery as “public” or “private”, restricting third parties from editing or re-sharing your imagery, and the consequences of archiving your imagery, deleting your imagery and/or terminating your account, please also see the Matterport Cloud Subscription Agreement. We will store your imagery for the longer of (i) the period of your subscription to the Matterport Cloud or (ii) 10 years from the date of first import into the Matterport Cloud." Privacy Policy here clickable text

The Cloud Services Agreement (CSA) can be found here clickable text

As an aside, the CSA should assuage your earlier fears of termination as a form of retribution. You will see the conditions for termination as "10.3. Termination by Matterport. Matterport may terminate this Agreement (and cancel Your access to the Matterport Cloud or any component thereof) at any time if You have failed to pay any subscription fee or additional fees when due and failed to make such payment within thirty (30) days after receiving a reminder from Matterport in writing. Matterport may also terminate this Agreement (and cancel Your access to the Matterport Cloud or any component thereof) prior to the end of any Subscription Period if You have committed any other material breach of this Agreement and failed to cure such material breach within ten (10) days after receiving written notice of the breach from Matterport."

Finally, isn't the real issue of copyright and disclosure with real estate photography and virtual tours with MLS and the real estate networks like Zillow and Redfin? Aren't you are forced to assign over copyright in full AND there is no data protection/deletion guarantees? I understand that is a real mess for many.
Post 27 IP   flag post
Changesin3d private msg quote post Address this user
Quote:
Originally Posted by Jwbuckl
We will store your imagery for the longer of (i) the period of your subscription to the Matterport Cloud or (ii) 10 years from the date of first import into the Matterport Cloud."


Correct me if I am wrong, what you re saying, when you go to the DELETE icon for the MSP in the Matterport workshop Matterport. Inc. is still keeping the "images and data" and you can use them. So the MSP does not control deletion, of his copyrighted data. If he were to transfer the copyright and the REALTOR wanted the it deleted, it is still saved by Matterport.

When you talk about TERMINTION
Quote:
Originally Posted by Jwbuckl
As an aside, the CSA should assuage your earlier fears of termination as a form of retribution. You will see the conditions for termination as "10.3. Termination by Matterport.


it seems that you are now quoting a different document that is not the TERMS OF USE. Just now I went to the terms of use that I have been referencing and checked again and this is still a direct quote.
https://matterport.com/terms-of-use/

"Termination.
Matterport may terminate your use of the Service at any time in our sole discretion. Upon any such termination, you must destroy any material obtained from the Service and all copies thereof. The provisions of these Terms concerning Site security, prohibited activities, ownership, third-party copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity, privacy, and jurisdictional issues shall survive any such termination."

So there is clearly different statements in different documents relative to exactly the same topic Termination. How does that "assuage" anyone? Should not all Matterport documents be easy to understand and without ambiguity. Then factor in that you can change either the Terms of Use or the Cloud Subscription Agreement at anytime. And that Matterport has tired to do that before.

I understand that you are someone new to the company but some of the first adopters have been through a lot with Matterport things that were not clear, like the famous T.O.S.

Now we have a new set of problems we face and you seem to be aware of it. That this the increasing demand by Brokers that Realtor obtain the COPYRIGHT of the images they use, from the Photographers.

Quote:
Originally Posted by Jwbuckl
Aren't you are forced to assign over copyright in full AND there is no data protection/deletion guarantees? I understand that is a real mess for many.


I agree you are CORRECT but this is a MESS facing the Photographers and thus Matterport in my opinion. It would appear the simple solution is for the REALTORS to demand the copyright. Brokers want that control. and with MATTERPORT having a license and thus control, we as MSPs would have to disclose that when we assign the Copyright. There is no deleting it. I pose this as a question and look forward to your view. If there were a security breach or you change you license rights, which Matterport has tried to do before, and while Matterport still asserts the right to change all part of the Cloud agreement, how do we deal with that.

It is common knowledge you are revamping the MSP program, are there any plans to give MSPs a standard disclosure, or terms to disclose your license if the Realtor demands the copyright? The word on the street is that DATA is what you want and to then sell use of the data. I think this trade rumor comes from the statement of your executives about yet unknown uses for the data. I think it was the DATA from our copyrighted data that created the ability to use cameras like Ricoh Thetas that do not have depth sensor, is this true? Did our data create competition for us, making it possible for a Realtor to buy a $400.00 camera and provide a Matterport tour?

As we all look at this and how it effects our business model we run across things of interest, much of it will create some of the very things we are talking about. Here is one on DATA, and the increasing value. I think some people will find this real interesting.

https://medium.com/reconstruct-inc/the-golden-age-of-computer-vision-338da3e471d1
Post 28 IP   flag post
Matterport
Representative
Jwbuckl private msg quote post Address this user
@Changesin3d For clarity, The Terms of Service govern users of the website etc and The Cloud Services Agreement governs you, the account holder and user of the Cloud Service itself. They are different things and not in conflict.

From the TOS: "Please read these Terms of Use (“Terms”) carefully before using the Matterport website or any Matterport products, software, applications, data, imagery, models, functionality and/or services provided to you on, from, or through the Matterport website (collectively, the “Service”). Using the Service indicates that you accept these Terms and any policies and guidelines of Matterport incorporated herein by reference. If you do not accept these Terms or such policies or guidelines, you may not use the Service."

From the CSA: "This Matterport Cloud Subscription Agreement, including the Spaces Processing and Hosting Terms, Schematic Floor Plan Terms, the VR Terms, and the Exportable File Terms set forth below (collectively, the “Agreement”), sets forth the terms and conditions pursuant to which Matterport, Inc. (“Matterport”) will provide you or the entity that you represent (“You”) with the right to access and use the Matterport Cloud."

You have taken my reference to copyright for Realtors being a mess out of context, unfortunately. We have exhausted this topic.
Post 29 IP   flag post
Standard
Member
DanSmigrod private msg quote post Address this user
@Changesin3d

Why not sell your Matterport camera and move on?

If you like, I will add you to the WGAN Private Group for Buying/Selling Used Matterport Pro1/Pro2 3D Cameras.

Happy July 4th ...

Dan
Post 30 IP   flag post
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