Who Owns The Photos That Real Estate Photographers Shoot For Agents

October 27th, 2011

Today a real estate agent/photographer told me that, “..It seems that most agents, including our office manager think that once the agent pays the photographer they own them. I’ve been talking to other photographers and tell me that they retain ownership…

This illustrates the confusion that is rampent in the real estate community about ownership of photos that professional real estate photographers shoot for agents. Because of this confusion I recommend that real estate photographers clarify there photo licensing and ownership policy in a terms of service document that they have their agent clients initial the first time they do a shoot for an agent.

You can do it either way: give ownership to the agent or retain it yourself  but the main point is make it clear what your policy is because unless you tell them most agents will assume they get ownership.

Another exercise real estate photographers need to undertake is to get a copy of your local MLS rules regarding photo ownership and copyright because the act of uploading photos to the MLS makes some legal assertions the agents must comply with. That is, by uploading photos to the MLS the agent is giving the right of the MLS to send all the listing photo to the hundreds of sites the MLS sends it’s listings to.

I like the way open2view.com photographers handle this whole photo ownership issue. They convey ownership of the photos to the agent. I think this is the customer friendly approach. I know this approach is not popular with everyone but I doubt that it makes all that much difference in the long run.

Update: I’ve been corrected what I said about open2view above is incorrect.

27 Responses to “Who Owns The Photos That Real Estate Photographers Shoot For Agents”

  • So what difference does it make exactly? What is to be gained by retaining rights to a house you may never see again? Other than adding a handful to your portfolio?

  • It may not make that much difference for most shoots. I have been retaining ownership, but I might change it to give ownership to the agent, and just retain for myself perpetual rights to reproduce, display on my website/portfolio, etc. I’m not really planning to resell most/any of the images, but I do want to be able to use them for marketing my services.

  • I include a “license to use” form for just about every shoot I do. It spells it out exactly who owns the photos (me) and who can use them (the agent). Not only that, but I make it a point to explain this to the agent or client on the first shoot I do for them. I don’t make a big deal out of it but I make sure they understand. There are other benefits to retaining the copyright, namely reselling a license to another party in the future (however make sure you get a property release if you plan on doing this). Believe it or not, there are people and companies out there that will pay for a well executed photo of something very specific they need.

    Regarding the MLS, I have seen several instances where the MLS user agreement states that by uploading a photo the agent transfers all rights to the MLS. For starters, I don’t agree with this. I think I understand why they want to do this (syndicating the listing as Larry mentioned) but there are other ways to accomplish this without transferring all the rights from the legit owner of the images. In addition to this, I don’t see how one can transfer rights that they don’t own (agent transferring photographer’s rights to MLS)…

    My solution is to spell it out to the client early, thoroughly and in writing. Take the time to do this once and you won’t have to worry about it again.

  • Before we go out on any shoot, a paypal invoice is sent to the agent for a 50% deposit. Additionally, an email with the terms and conditions and license is sent out and a return email requested which confirms they understand our terms/conditions/license. Then we go out. (50% balance due before pictures are sent out to agent). Our terms and conditions let the agent share the rights with us, makes sure that all t/c/l are in agreement with MLS and specifically state that if the agent changes, he/she can keep the rights to use the photos for marketing their business but not the house and that if the owners want a copy of the pictures – they need to pay us a usage fee. the new agent has to pay a usage fee as well and the pics have to come down from the MLS if the agent changes and no second usage fee is paid.

  • “What is to be gained by retaining rights to a house you may never see again?”

    For me it’s thousands of dollars a year by re-licensing my images to third parties. But I guess you could skip that part if it’s too much of a hassle to simply tell your clients that you own the images that you create.

  • If you give the agent the rights to the images he can then sell them. As an example … agent loses the listing – he then sells your images to the next agent on the listing. Photography is based on usage so when an agent loses a listing, I want the rights to sell the images to the next agent to use. I bet I resell 20 or 30 shoots annually. Another example is a contractor sees the images of a Kitchen he designed and installed and asks for copies of the images. Agent gives them to him to use on contractors website – I want to be able to sell those images to the contractor as it is another use.

    M. James

  • Re-licensing fees are part of it, portfolio use is part of it, and just basic fairness…why should third parties (like builders, stagers, etc.) get a free ride on your client’s ticket? Everyone who rides the train has to pay the fare.

    If you were selling prints, it would be different. Only one person can “use” a physical print at a time, and so it’s no different than selling a car, or a bicycle. But once they start reproducing that print (or distributing your JPEGs) – it’s a whole other ball game.

  • Sounds like there’s more reuse of listing photos going on than I thought.

  • As a real estate agent and photographer I prefer to retain the copyrights and the images are good for the life of the listing. The rights to use are not transferrable to third parties such as clients, vendors, or other real estate agents. I often receive requests from clients to use images for VRBO, builders and architects’ portfolios and we work out a price for their particular situation. As a member of several MLS, the general policy is that the listing belongs to the broker, and once an agent leaves the agent surrenders their listings. That’s why I have included that the images are good for the life of the listing and not transferable. I have read through the MLS by-laws regarding who owns the images and there’s no mention of it, so it’s important to be clear about “right to use” and “retaining copy rights” prior to the shoot.

  • I agree with Scott, no free rides. I did not get here for free, why should I carry them?

    I see a lot of abuse from realtors using my “area” shots of the community pool, grounds, etc.. and that really burns me. I also let my agents know that the right to use the area shots is granted only if I shoot the property associated with it. Not uncommon for them to think they own them outright.

  • I am not an accountant or an attorney and I am just in the fetal stages of setting up my business. In Washington there are tax implications between selling pictures and licensing. Selling tangible goods is subject to the retail sales tax. Licensing the use of intangibles is not – at least at this time – I believe. I am seeing my new accountant next week. But before you make any decisions, Check it out!!!

  • I just had another little thought for those who are having trouble with agents who are not happy with “not owning their pictures” : Judging from the quality of most everyone that subscribes here – the agents are getting really good deals on their photography! We just need to convince them that our re-license rights is one of the reasons that we can still stay in business and give them bargain basement rates. (and yes, I am referring to the “minimum shoot rate of $150″ as a bargain basement rate!)

  • Since I was the one that initiated this discussion with Larry and relatively new to RE photography (9 mos.) I really appreciate all the feedback everyone has provided. I’m also an agent and have been well supported by several agents in my office through the inititial stages of my questionable quality. Now as my business grows I’ve had the discussion re. image ownership with those agents and our office admin. and they just assumed that I’ve sold those pictures to them and no longer have any claim. I’m guessing that other photographers in my area, for the most part, never address the issue. Since I work in the Washington NWMLS here’s what they say:

    (b) Ownership of Primary Photos. By submitting a photograph to NWMLS to be used as the Primary Photo, a member thereby irrevocably licenses to NWMLS and its members the use of that
    photograph, during the term of the listing and thereafter, for any purpose related to the listing and sale of the property.(c) Additional Photographs. By submitting to NWMLS all other photographs, including virtual tours and the like (“Additional Photos”) the member licenses NWMLS and its members the use of thosephotographs, during the term of the listing only, for any purpose related to the sale of the property. Both Primary Photos and Additional Photos may be used by NWMLS and its members, during the term of the listing and thereafter, for off-market purposes, such as appraisals and comparative market analyses. No further license to use photographs provided to NWMLS by a member isintended or implied.

    Well, at least according to the NWMLS, they own the right (in perpetuity) to use the primary photo which allows any subsequent agent listing that property usage. I still haven’t decided which way to go, however I do like Scott’s thought of giving the images to agent, but retaining the right to use them for website, marketing etc. And is it really worth it to, potentially, alienate fellow agents that have both supported my new business and ones that I hope to take on as future clients….

  • Perhaps reminding folks there are other things in the office and home they pay for but do not own.

    From Microsoft
    A. An end user who acquires software is acquiring the right to use that software. End users don’t “own” the software, which is intellectual property and is generally “owned” by its developers. The right to use the software is governed by the End User Software License Terms—which, in the case of OEM System Builder product, is an agreement between the system builder and the end user. The End User Software License Terms can typically be found within the software product, and an end user must accept the End User Software License Terms before running the software.

  • “Well, at least according to the NWMLS, they own the right (in perpetuity) to use the primary photo which allows any subsequent agent listing that property usage.”

    That’s not quite what the NWMLS verbiage says. There is no transfer of “rights” when you submit an image to the NWMLS. You are granting the NWMLS and it’s members a perpetual license to use the Primary Photo. The NWMLS does not “own” the image nor any “rights” to the image. A subtle difference perhaps, but an important one.

    There is absolutely no reason whatsoever that a real estate agent should need to own the images you create for them in order to do their job.

  • “….I do like Scott’s thought of giving the images to agent, but retaining the right to use them for website, marketing etc.

    Just to be perfectly accurate, that’s not what I advocate. My real estate clients get a non-exclusive, but very broad license that covers their use of the image for the life of the listing. There are no limits on what they can do with the image, while the listing is active, as long as it’s promoting the listing itself, or the agent/brokerage. Meanwhile, I own the copyright, and reserve all other rights to do with the image as I please, including licensing it to other parties. Out of respect and a desire to keep my clients happy, I always get their approval before sub-licensing anything, at least while the listing is active.

    Once the listing expires or closes, the agent’s license recedes to cover their self-promotion only (e.g. “just sold” postcards, portfolio). Further use, such as by the brokerage itself, becomes a new license arrangement.

    For those of you in the San Francisco East Bay area, (“Paragon” MLS) — the pertinent text from the MLS Rules is as follows:
    “By submitting photographs to the MLS, the participant and/or
    subscriber represents and warrants that it either owns the right to reproduce and display these
    photographs or has procured such rights from the appropriate party, and has the authority to grant
    and hereby grants the MLS and the other participants and subscribers the right to reproduce and
    display the photographs in accordance with these rules and regulations. Use of photographs by a
    subsequent listing agent requires prior written authorization from the originating listing agent or
    appropriate party.”

    This is totally OK with me. The images can be legally syndicated across the spectrum of real estate aggregators, which my clients need and expect, but it’s limited to the current listing agent. I like it that there’s specific language addressing the “subsequent listing agent” which is where I draw the line as well!

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  • Hello its Arturo from Spain,
    I am a professional real-estate photographer aswell.
    On my area we are two or more photographers that we do it.
    We are already making a contract about it.
    Wen we finish it i will send it to you dear admin, just to have a look at.
    Sorry my english is crap

  • Would like to address Anne On Ymous. So, you get releases for every property you shoot so you can “sell” the images? Just because you photograph a house you don’t get the rights to sell the photograph. That is kept with the owner of the property. So, unless you are getting the owners to sign a property release and give away their rights you have no right to sell the images to third parties.

    Plus, don’t take this the wrong, but I work with some top advertising photographers doing Photoshop work for them. No one will purchase images of houses without a property release. Even the cheapest royalty free usage requires a property release by the owner. Most houses have artwork, pottery, and other things that are also copyrighted by the artist and it is almost impossible to have releases for everything a standard “real estate” photograph contains. Even with the property releases those photos usually aren’t work much money. So, I’m thinking you’re not exactly explaining everything when you say you’re making all this money. My email is sandybatterton@gmail.com and my name is Sandy Batterton. You can email me or put a post here and explain how your making “thousands of dollars a year by re-licensing”. I work with photographers who make a living selling stock and commercial advertising photography. They can’t make that kind of money from just real estate photographs so I’m guessing you are embellishing the success a bit. If not I’d love to hear about it.

    Thanks.

    Sandy

    Thanks,

    Sandy

  • Sandy,
    Actually, there are buyers who don’t require a property release. In fact, there has never been (to my knowledge) a successful case brought against a photographer for licensing a photo without a property release. In the United States, property does not have privacy rights. There was a particularly high-profile case earlier this year that addresses this exact scenario:
    http://www.photoattorney.com/?p=1561

    As for the rights to sell or license a photograph being “kept with the owner of the property” — that’s not at all true. Copyright is formed automatically, and by default lies with the photographer. Of course if the photographer were trespassing in order to make the photo, that would be a completely different situation, but otherwise, the deck is pretty much stacked in favor of the photographer.

    As for the artwork, vases, etc. being copyrighted — nope. In theory, if the artwork in question was the dominant feature in a photograph, and not just incidentally included, there could be some sort of claim, but I challenge you to produce a real-world example of this. I’ve never heard of it, and as a practical matter I think it’s a pretty specious argument. Again: property does not have privacy rights. You do not have to have a release for every object contained within a photo of a house in order to license that photo.

    I can’t speak for anyone else, but my re-licensing revenue is easily in the mid-four figures annually.

  • Hey Scott,

    You’re 100 percent wrong on this. Everything from the logo on a coffee maker, the logo on a lamp or even the shape of a lamp may be copyrighted. Forget about the artwork because that is bigger and potentially more costly problem. If you sell and claim you have rights to reproduce the likeness of items in a photograph for advertising or other commercial reasons you are claiming to have the rights to use any and all copyrighted materials in the photograph. HUGE lawsuits result when companies make mistakes. There is no difference if use is incidental or not. Copyrights are copyrights.

    I would suggest you check out the ASMP http://asmp.org/ website for more information on US usage of property

    also

    the WIPO website http://www.wipo.int/sme/en/documents/ip_photography.htm for worldwide issues

    remember stock photos are used all over the world.

    Even if you sold the photo as stock for only a few hundred dollars you can be sued for big dollar amounts for wrongfully representation of rights. This is usually done by the company that used your photo, got sued and now is going after the photographer. Trust me it isn’t fun.

    My assistant has tons of the cases bookmarked and I will try to get her to post a few links for you. I have worked with photographers who have been involved in these type of situations, not fun. You should be able to google them up.

  • What Scott said. Except for the word “specious”. Impossible to use without sounding pretentious. ;)

  • “use of the image for the life of the listing” as a real estate agent I find this a problem and I would never hire anyone that limits my work with this. I prefer doing it myself if that’s the case. Even in the prejudice of the photos.

    I ALWAYS use the photos to promote my work after the listing has been sold. That’s a VERY important and powerful marketing tool for me. It’s the way new costumers known my results. That’s what that will make me get even more listings and new buyers. It’s a major important part of my work. It’s counter productive to have such a restrictive license. RE photographers want their costumers (agents) to be successful in order to be hired more times. It’s not much help if an agent can only use the photos during the listing time. I often find myself using images of properties sold several years ago.
    Generally what I request is an unlimited and unrestricted use of the images forever. I understand the need for protecting the photographer but we all need to understand the agent part too. I do not own them the photos and neither can I sell them so the photographer is still protected.
    What I also demand is that they can’t sell the images to any of my competition, that would ruin one of the porpoises of hiring a photographer, to have an advantage over the competition. The photographer can use or sell the photos how he wants, to a magazine or whatever, but he cannot sell them to another real estate agency or a home owner.
    I bet if a RE photographer licenses the images to a competitor he will not be hired anymore by the agent who hired him in the first place.
    Above all I think respect from each others work (agent and photographer) is the most important thing. =)

  • “…Everything from the logo on a coffee maker, the logo on a lamp or even the shape of a lamp may be copyrighted….

    You’re confusing trademarks with copyright. Not the same thing. You can’t copyright a logo, or a design.

    Applying your premise, then it follows that if a real estate photographer makes an image of someone’s kitchen and then licenses that image to a real estate agent, the photographer can be sued by the coffeepot manufacturer, the wine glass manufacturer, the cookbook publishers, the barstool designer, and the architect, builder, and interior designer….right? After all, neither the photographer nor the homeowner has procured releases from any of these entities. Primary license, secondary license, tertiary license….wouldn’t matter to those folks, they were not consulted. That’s just absurd.

    You’re assuming that we’re talking about stock sales, for advertising usage. This is almost non-existent in the world of RE photography. And quite rare in interiors/architectural overall. The secondary licenses I issue are most commonly to other parties who were involved in the design, construction, or leasing of the property. Magazines also license images after the fact. I’ve never been asked for a property release from any of these, and I’ve been published in more than a few national mags/newspapers.

    This has been thoroughly hashed out in the courts already. Property does not have privacy rights. If we aren’t trespassing when we make our photos of property, which is an entirely separate matter, we can license those photos. Here’s yet another example, which did in fact involve trespassing. In this case, the courts clearly separated the two issues, and allowed the licensing of the image to go forward, while dealing with the trespassing issue on it’s own: http://www.photoattorney.com/?p=447

  • Scott,

    Alright, good luck.

    Best,
    sandy

  • Sandy, the ASMP actually supports what Scott is saying. There is no law in the US that requires a property release, and no legal precedents either. In fact, the case Scott cites indicates at least one legal precedent for a property release not being required. Nevertheless, the ASMP does advise maximum CYA in the form of a property release, just in case. And, when licensing a photo that does not have a property release, it seems advisable to me to notify the client of this. I see many architectural photos on major stock photography sites that do not have property releases, which is noted accordingly with the other photo info. As to photos one may have shot in other countries, perhaps that is another matter, but I for one am not shooting real estate outside the US.

  • last post on this and probably forever on this forum. To Scott and David,

    ASMP does not support what Scott is saying at all. I have been on the board of the old MPPA that is now part of ASMP. I have been in this business for 30 years. I can tell you. ASMP never, never recommend selling stock or any other photos without complete copyright licensing for ALL products in the photograph. You do not see advertising photographs without property releases. You do see some magazine and “news” magazine photography without licensed photography. You see a ton of websites that are flying by the seat of their pants…..really they are. One good lawsuit will change what they do ASAP. The thing is most will continue doing what they are doing until they get a call from a lawyer. Most aren’t big enough to worry about so…….. life goes on.

    But as I said before, “Alright, good luck.” I hope you never get into a bad situation because you are reading what you want not what the law is and what CAN happen. When, or if, someone uses your photos are used in a way you authorized but isn’t %100 correct and you are somehow involved with it I feel sorry for you. But, go on believing what you want, reading only the good news. I’ve seen the other side and can tell you it isn’t exactly as easy as you think. But…..

    Alright, good luck.

    Best

    Sandy