Certain issues relating to the Code of Ethics and REALTOR^® conduct seem to arise with some regularity on the WRA’s Legal Hotline. For instance, Article 12 requires a true picture in all real estate communications, and Article 16 says a REALTOR^® may not initiate contact with the client of another REALTOR^®, unless the client contacts the REALTOR^®, such as a seller contacting a REALTOR^® to discuss the terms of a future listing contract.

This “Best of the Legal Hotline” article is broken down into two categories: “Professionalism Pointers” looks at ethical dilemmas faced by REALTORS^®, and “Professionalism and Pinterest” looks at the various ethical considerations for REALTORS^® using Pinterest for marketing.

Professionalism Pointers

Does a broker need to disclose to a seller what the broker offers as co-broke commission?

Yes. Standard of Practice 1-12 of the REALTOR^® Code of Ethics provides, in part, “When entering into listing contracts, REALTORS^® must advise sellers/landlords of: 1) the REALTOR^®’s company policies regarding cooperation, and 2) the amount(s) of any compensation that will be offered to subagents, buyer/tenant agents, and/or brokers acting in legally recognized non-agency capacities.” 

Does the Code of Ethics include a provision, or does a law exist, that requires a “for sale” sign to be posted for a listing?

No. The listing contract, entered into between the broker and the seller to provide real estate brokerage services, creates the contractual obligation to place a sign on a property. Depending on how the marketing provisions of the listing are negotiated, the seller may or may not want a sign on the property. 

A potential buyer and an agent agreed on a time for a showing. The agent was then unable to meet the buyer at the property at the time set for the showing. Rather than sending another agent from the company to conduct the showing, the agent provided the buyer with the lockbox combination and told the buyer to look around and call her later. Is this practice a violation of the Code of Ethics?

It is possibly a violation of Article 1 and/or Article 3, depending on whether the agent is a listing or cooperating broker. A listing broker could violate Article 1 of the Code of Ethics by failing to act in a professional manner consistent with the broker’s obligation to protect and promote the seller client’s interest. 

NAR Case Interpretation 1-7 specifically addresses this conduct as a violation of the Code of Ethics. For more information, visit www.realtor.org/code-of-ethics-and-arbitration-manual. In the event the agent is a cooperating agent, Article 3 of the Code of Ethics and Standard of Practice 3-9 would be considered. Standard of Practice 3-9 provides: “REALTORS^® shall not provide access to listed property on terms other than those established by the owner or the listing broker. (Adopted 1/10)” All brokers should avoid providing access to listed property on terms other than those established by the owner or the listing broker. Not only could this be a violation of the Code, but in addition, the agents may be in violation of local lockbox rules, subjecting them to fines or discipline. 

Professionalism and Pinterest 

What are the rules for social media websites such as Pinterest, the virtual “pin board” website? A Pinterest user can pin properties listed for sale by independent parties or by other brokers — and the source of the listing is visible on the "pinned" item. The user can add a description stating that parties can contact the Pinterest user for assistance with the property or to answer questions. 

Just because technology allows someone to pin and/or share a property photo on Pinterest or another social media site, it does not mean that the broker or agent has the authority to do so. Before the Internet, the WRA Legal Hotline received questions about putting up photographs of another broker’s listings on the office picture board. The Hotline also received inquiries related to including other companies’ listings when compiling a list of locally available properties to mail out. Today, Pinterest reflects the evolution of that picture board and mailings, but the analysis is the same: before a REALTOR^® pins on Pinterest, he or she should ask, “do I have actual consent or authority?”

There are several items to be considered before an agent or broker proceeds to “pin”:

• The listing broker’s exclusive right to sell listing.
• The seller’s consent.
• Copyright law, for both the photo and any MLS content. 

Can the REALTOR^® pin a picture of another broker’s listing on her own board? Maybe … with the proper consent of the seller, the listing broker and the photographer. 

For a national perspective on advertising real estate on Pinterest, see the “A Place for Real Estate on Pinterest?” article in REALTOR^® Magazine at realtormag.realtor.org/daily-news/2013/11/26/place-for-real-estate-pinterest.
Seller and listing broker consent

In order for any third party to advertise another broker’s listing, the consent of the seller and the listing broker is necessary. Regardless of whether the advertising medium is a newspaper, radio or the Internet, consent is required. The advertising rules in Wis. Admin. Code § REEB 24.04 require the consent of the seller to engage in advertising. In addition, the listing broker’s consent is required because the exclusive right to sell nature of the listing contract grants the listing broker — not cooperating brokers — the right to advertise. 

But it is in the MLS! 

Does the fact that the property photos are in the MLS give consent? 

No. To assure compliance with MLS rules, consider whether the information is being used in a “pull” or “push” scenario. “Pull” is when a prospective purchaser has expressed interest in a specific property or type of property; the broker may pull out MLS photos and information in response to the purchaser’s request. “Push” is when the broker is selecting information about properties for a general promotion or marketing piece. The broker should not arbitrarily push MLS photos or information on to a bulletin board or Pinterest board because this does not comply with the reproduction restrictions in the MLS rules. 

When a broker submits listing information to the MLS, it is for the clearly defined and limited purpose of disseminating that information to other MLS participants. The MLS allows participants, upon the request of a potential purchaser or tenant, to provide information obtained from the MLS. 

What about the IDX rules?

The Internet Data Exchange (IDX) allows a limited electronic display of other participant’s listings. When operating a public website or applications for mobile devices, the participant must comply with IDX rules. Contact your local MLS for more information about IDX.

Is the photo copyrighted?

Photographs are subject to copyright law. Copyright protection exists from the time a work, such as a photograph, is created. There is no requirement to register the photograph, and reproduction by anyone other than the creator — without the creator’s permission — is a violation of U.S. copyright law. The copyright of the work immediately becomes the property of the author, or the photographer in this case, who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. 

The 1976 Copyright Act generally gives the owner of copyright the exclusive right to perform — and to authorize others to perform — the following:

• Reproduce the work.
• Modify the work.
• Distribute copies of the work to the public by sale or other transfer of ownership, or by rental or lease.
• Display the copyrighted work publicly.

Anyone who violates any of the exclusive rights of a copyright owner is an infringer and may be liable for damages. Courts also have the power to issue an injunction to prevent or restrain copyright infringement. The terms of use of the MLS allow limited use of the photographs of other MLS participants and subscribers. They do not allow copying for future listings or the advertising of sold property.

Before you "pin," be sure you have the photographer's consent. If not, a party may seek to protect its copyrighted photographs and other material against unauthorized use by filing a civil lawsuit in federal district court. Pin and post with consent.

Photo copyright resources

• See the article from the June 2004 edition of REALTOR^® Magazine at www.realtor.org/rmomag.NSF/pages/lawjune04.
• “Best of the Legal Hotline: Technology Issues” in October 2005 edition of the Wisconsin Real Estate Magazine at www.wra.org/WREM/Oct05/Hotline.
• United States Copyright Office: www.copyright.gov.
• February 2006 Legal Update, "Real Estate Advertising," at www.wra.org/LU0602.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.