A copyright protects “original works of authorship” that have been fixed in a tangible form of expression, like writings, paintings, musical compositions, and sculptures. A work is original when the creation has a “minimal degree of creativity,” so things like words in an alphabetical list are not inherently copyrighted unless the creator put some special effort into choosing the specific words that were alphabetized [see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)]. Photographs of a specific location or a specific person will be copyrighted because the photographer made the creative decision to light things or compose things in specific locations, or at the very least to stand where they did and hold the camera a specific way when snapping the image.
Copyrights protect the creator’s work in various ways, including but not limited to:
- Stopping people from reproducing the work by making copies,
- Prohibiting the creation of derivative works based on the original work [e.g. Vanilla Ice was sued by David Bowie and Queen for unauthorized use of the classic bass line from “Under Pressure,” creating a work that was, in significant part, derived from the original song without permission. Ultimately Vanilla Ice bought the rights to the song to avoid a lawsuit], and
- Preventing the unauthorized display of the audiovisual works.
Within the real estate context, copyrights show up in some unexpected places. Architects sometimes sue to protect their rights in the creation [Per the 8th Circuit, architectural floor plans are considered functional creations rather than artistic creations, but note that “it’s conceivable that a floorplan could be created for artistic purposes,” leaving the door open to future lawsuits]; photographers regularly sue to prevent the spread of images they took for the listing advertisement; and at least one broker has sued when their advertisements were parodied [technically, Mr. Lindahl had a registered trademark, so still an IP lawsuit, but not a copyright lawsuit per se]. There are unanswered questions about sharing images on social media, and whether reposting an original creation of another person is a form of copyright infringement.
Think critically before you share or publish any images or creative works. If you didn’t make it, do you have the creator’s permission? If you don’t have the creator’s permission, is it worth the risk of being sued? Sometimes it may be better to take the extra time and make your own design or creation, or to hire someone to make that design/creation, though if you do hire someone, make sure they sign the copyrights of the creation over to you.