July 21st, 2007
Do your clients think they own the photos that you shoot for them? Mike over at www.martinvirtualtours.com told me about an misunderstanding that he recently had in which he shot a tour for a new construction agent where he included some neighborhood photos in the tour. Later, he provided the same neighborhood photos to a different agent for a resale listing in the same neighborhood. When the first agent saw “her” photos being used by a different agent on the resale listing she “went ballistic” because she thought the photos BELONG to her!
Mike asked me for my opinion on the subject. Here’s what I told him:
In my opinion I don’t think you did anything wrong. The problem is most agents have no experience with photographic rights issues and in real estate photography most times there is no explicit contract so everything is implicit, leaving opportunity for assumptions. Some photographers (not usually real estate photographers) make clients sign a statement that defines what the client usage is allowed. For real estate photography it may be a good idea to hand out a statement that describes client usage and the photographers rights.
I’m not a lawyer and don’t give legal advice but here is my interpretation of the conventions for real estate photography:
- Photographer owns the photographs i.e. owns copyright
- Photographer licenses the client to USE the photos on the MLS and flyers for a particular listing until the listing is sold. It use to be common in our MLS for agents that listed the same property in the future to use some or all of the photographs. Recently our MLS made it more difficult to get the listing photographs from a listing.
- Photographer may use the photos for marketing their own services or re-license them to other clients if the photos are general in nature.
- If the photographer licensees the photos for MLS use, the agent cannot use one as a cover for Homes and Land magazine or other use without paying the photographer for the additional use. This is easy to control by just giving agents downsized photos for the MLS so the won’t work for print media.
- Some photographers license the photos for only one particular use… that is for ONLY a brochure or ONLY the MLS.
- Photographer needs to understand that use on the MLS implies that photos are propagated to other many real estate websites that the MLS feeds automatically.
- Use on the MLS also usually implies (this can be different depending on different MLSs) that the initial external photo becomes public domain when uploaded to the MLS. That is, other agents can use this photo when they list this same property in the future. Chcek with your local MLS for their conventions in this area.
Understand that this is just my interpretation… You could decide to do it differently but all this is involved enough that it would be worth writing down your particular interpretation of these conventions and at giving a copy to new clients the first time you shoot for them so you don’t leave yourself open for misunderstandings like Mike encountered. Mike has decided to address this on the back of his business card after this experience. It’s not good business practice to have clients upset.