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Are You Taking The Time To Train Your Customers On Photo Licensing?

January 9th, 2013

CustomerTraining

Good customers need to be trained! There’s a lot of stuff you need your teach customers so they can be good customers:

  1. Get home owners to straighten up the home before you come.
  2. Pay on time.
  3. Your shoot cancelation policy.
  4. Only use the photos you shoot for their listing and not give the photos to homeowners, builders, architects or the next listing agent.

Real estate photographers typically don’t do a good job of training customers on #4! Cal in Charlotte, NC told me today, “one agent customer thinks she owns the photos and refuses to let new listing agent use them. I can overide her, but at risk of losing her (and rest of firm’s) business!” These kind of misunderstandings are very frequent!

Here’s the underlying problem: most agents have zero understanding of photo licensing. The concept that you pay several hundred dollars for photos and you only get to use for a limited time, and a single purpose is completely foreign to most people. There’s very few other products that work this way. So the concept of photo licensing needs to be carefully explained to agents and you have to make sure they understand.

I recommend that real estate photographers have a simple one page terms of service statement that explains their terms of service including their photo licensing policy and before the first shoot have a discussion with the agent and ask them to initial the terms of service. No need to initial again unless it changes. But by having a written TOS and taking the time to explain it to all customers you save a lot of potential confusion and misunderstandings.

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27 Responses to “Are You Taking The Time To Train Your Customers On Photo Licensing?”

  • “There’s very few other products that work this way.”

    Well, actually, we’re inundated with products that work this way.
    Music (licensed, not owned).
    Software (licensed, not owned).
    eBooks (licensed, not owned, and that includes my title!)
    Movies (licensed, not owned).

    When you explain to a client that photos are licensed exactly as they do the songs on their iPod, the light bulb usually goes on. Sometimes I explain that it’s the same as how they “own” a copy of Microsoft Word. Yes, they can use it on their computer. Can they burn 50 discs with MS Word and sell them on the street corner? Nope. And they already know that.
    At the end of the day, it’s the difference between buying a ticket to ride the bus, vs. buying the bus.

  • Incredible timing! I just had several of the MLS systems in my area send out warnings to agents about this. I’m doing a statistical analysis on my 2012 work (600 homes shot) and, so far, am finding that as much as 10%(!) of my work is being ‘given’ to (or taken by) other agents. One agent said he got photos from the previous agent “since she owned the photos…” I had one just say that she knew it was wrong but only thought that she was swiping the photos from the MLS “since they own” the photos! I had to educate them quickly and they are paying and will probably be fined. Luckily all of the MLS providers are on my side (obviously) and most of the brokers understand or are learning. The lack of agent understanding is amazing since each MLS sends out copyright/ownership information at least once a year.

    I do have a question: I have agents asking now if they can share the photos with their in-house property management divisions when a home is being both sold and rented at the same time. Thats the only time I don’t have a problem with multiple usage, but would like others’ input on how they handle this issue. Thanks.

  • It seems as if the MLS provides photographers with some sort of defence in the US. We don’t really have anything like that in the UK. the nearest thing we have is Rightmove (http://www.rightmove.co.uk) and agents frequently grab thumbnail images from listings with obvious consequences regarding quality. Having said that it seems as if there is some effort to introduce a MLS in the UK although I don’t know how far along things are: http://en.wikipedia.org/wiki/Multiple_Listing_Service#United_Kingdom

  • Digital photography has become so accessible/ shareable/ publishable: you need to keep your eyes open for unlicensed usage: I had a homeowner take the images from the agent’s site and use them to promote her property for bed and breakfast/ week long lets on a hub site: then switched agent and forwarded one of my original photos for the new agent as their shooter hadn’t captured a certain view. Most agents consider RE photography as “work made for hire” : ie paid for outright and then free to be used in the public domain: when explaining copyright I too mention music (thanks Scott) and say: well would an artist like Madonna agree to write and record a song and get paid for a morning’s work while her publisher and distributors then sell the recording in different formats all over the world? We charge for costs of production plus a certain agreed usage, eg a listing and a press feature : any more costs more. I think it’s s great idea Larry having a brief terms of engagement for RE clients : rather than lengthy T&C’s . The more we assert our ownership of copyright the more we emphasise that our photography is a creative art just like music composition, software design or graphic design. I think it sends out a professional message if phrased correctly.

  • I know I’m going to start a firestorm with this, but why not give unlimited rights to the customer? How much can you make on reuse? Why get involved in a nasty fight with a client? Why not just ask for notification when it is given to another agent and attribution when used for another reason?

  • Q: “How much can you make on reuse?”

    A: Large amounts of money. Re-licensing fees, just for my real estate photos, run upwards of $7.5K annually, for me.

  • Most wedding photographers work on the same basis as us… they own the copyright in and to the images. I print on the Contact Sheet, the DVD Sleeve, the DVD, the page of links I e-mail to the Client, and on the invoice, that I, the photographer, am granting to the Client (Realtor), a LICENSE to use the images on the one MLS and that the images cannot be sold, transferred, given away or used by others without Photographers written approval. Most Realtors will call or email me to let me know they gave the new Realtor my information. I’ve only had a couple situations and when I caught the unauthorized uses, they quickly paid me for the useage of the images. I charge 75% of the original shoot price on relicensing…. because one Realtor said if they have to pay 100%, they would rather I reshoot… and personally I’d rather relicense the images without having to reshoot.

  • @Scott- Good points! Certainly photo licensing is very similar to all those things you mentioned. The biggest issue is if you don’t explain how your particular licensing to the customer they will make up their own rules.

  • oh… and when I do shoots for homeowners I state that the images can only be used to promote the property of rental purposes only and cannot be used on the MLS without my written approval. I don’t want them being used when/if they sell the property. I usually get a 2 to 3 relicensings a month… so for me that’s $5,000 a year in additional revenue. And wit Realtors and homeowners, no one has ever complained about my ownership policy. I was worried at first and thought I would have an issue… it never happened.

  • Until now I have had no problems with any Realtor. I just show the my website and the disclaimer.
    http://letpicturestalk.com/disclaimer

  • Scott has explained it beautifully.

  • With all due respect, I dont know if the musician and the record company is a good example. The musician creates his music and then licenses it to the record company to market their product and compensate the musician. In our case we create/copyright the image, a third party pays us and it gets uploaded to the MLS. The MLS owns the copyright on the information on their system and spreads it all over the internet. Type in the address of one of your shoots in your browser search bar to see how far and wide you pictures are distributed, without compensation I might add. What if someone downloads and alters the shot?
    Because of the co-copyrighter (MLS) I would make sure the agent signs a TOS agreement. If the agent violates your license agreement you might let the MLS know, they could threaten to fine or turn off that agents access. This would mean more to them then a grumpy photographer.
    Rohnn

  • Wait, wait, wait…..
    Can’t generalize about MLS boards. There are some that reportedly *do* try to claim ownership of the images, but that’s a pretty dubious claim, and I don’t think it’s ever been tested in the courts. My local MLS does NOT claim ownership. When the MLS copyrights it’s content, it’s doing so the same way that a magazine copyrights the material between the covers — it’s the compilation/layout/presentation, not the individual bits of intellectual property. When I license an image to a magazine, I still own the copyright; there’s no “co-copyright” going on.

    So I think that most RE photographers are indeed producing a product, (hopefully) registering the copyright (although that isn’t strictly necessary), and licensing the images to their clients, who then use them according to the terms of the license. That could include uploading to an MLS, syndication, print collateral, etc. If an un-authorized person downloads and alters the shot (or doesn’t alter, for that matter) — -then they’ve infringed my copyright. If I find out about it, I go after them.

  • I have never been so happy to see this subject come up. I don’t know if there’s a way to tell this story short and accurate but I’m going to try because I really need advice on this one from the guys who know best. Short, short version. Took photos of a spa/salon. Got paid. No contract. Sent Salon the photos. Salon informed me that they were sending them into a nationally published magazine for a “salon of the year” competition. I signed magazine’s waiver allowing “magazine” to use photos. (Note: this is the only signature anyone has from ‘anyone’ regarding these photos.) Then, Salon won the entire competition. Salon was excited. I was excited. My photos were going to be on the cover of a nationally published magazine and featured in a multi-page spread. Magazine published photos. No credit to given to me. I’m no longer excited. I call Salon. Salon calls magazine. Magazine apologizes and prints correction in another issue. Still not excited. Someday, my great-great-grandkids will find my photo on the cover of a magazine in a dusty cabinet and then have to find another magazine to know they were mine. Bummer. Oh well, I move on. However, (here we go) in that original issue I find my photos being used by “other” companies in their advertisments. International companies I’ve never heard of OR heard from using my photos in full page ads. Then, through some deep investigative work of typing the name of the salon into this website called Google, I find several other companies using my photos on their websites bragging about their involvement in the Salon of the Year winner.

    I’ve made a tiny amount of money on these photos from companies that played by the rules and contacted the Salon and asked to use them, but there are a number that I’ve found on my own that are using them WITHOUT my permission and with no re-licensing fee paid. What the heck do I do? Can I do anything? These photos would have been used locally by the Salon (my client) had they not won this competition, yet now everyone is potentially making money off them but me. Somehow this doesn’t seem fair and I feel very stupid.

  • Funny, just about to go over this with an agent. They always get it when you tell them it helps them too, why would you pay for images and then give them to the owner? If they delist after 6 months etc they can give the images to the other agent!

  • I tell my clients they can use the photos for anything they want. I never thought about licensing. That sounds like overdoing it a little bit.

  • I have been watching, searching, and viewing this website over the last several months. I recently became interested in becoming a Real Estate Photographer and this site has been extremely helpful. I feel this post is very important for start-ups like myself, and I have some additional questions if anyone could take the time to answer them.

    Does anyone have examples of licenses and/or contracts they use?
    How do you calculate pricing for re-licensing?
    Is re-licensing and/or pricing listed on your website?

    I have done work for about six properties without a contract, and without even thinking about licensing. Would somebody be able to direct me to a resource that specifically addresses these issues?

  • Darin, we’d need to see the contest waiver, but I’d bet that anything appearing in that magazine was authorized by you. As for these third parties using your photo on their websites, you could in theory put a stop to that.
    But the #1 thing you can do is to take a solemn vow today, that you will never ever take the camera outside your house again unless you have a signed contract in your pocket spelling out the who, what, where, when, and how much.

    @ Brandon K — try searching Aphotoeditor.com under the terms “real world” and “wonderful machine”. Another good resource is Photoattorney.com (Carolyn Wright). And another is John Harrington’s “Best Business Practices For Photographers”.
    I re-license RE shoots to new agents at 100% of the cost of the original shoot. Really, I ought to charge a premium, since they don’t have to do ANYTHING to prep for a shoot, heck, they don’t even have to show up or get me a key. My original client had to do all of that AND pay me.

  • Brandon check out Larrys Flickr group, lots of knowledge over there:
    http://www.flickr.com/search/groups/?w=44315269%40N00&q=licensing

    Ryan you can license photos however you want, but if you aren’t licensing at all you are not giving your client the right to do anything with your images. It seems most professional PFRE photographers license the images for the length of the listing but retain ownership of the image. Not only is it professional, but it answers any questions your client may have about what they can do and what you can do with them. Ive had an agent mention that I am using the photos he paid for on my website and I should give him a discount for the usage, referring back to our licensing agreement cleared that up. Like mentioned above it can be also used to defend your client when agent number two tries to use the images for free after your client loses the listing; ie the homeowner gave it to them or the MLS owns it and they are a member so are entitled or whatever.

  • The solution is simple – offer to add clients’ logos to every one of their photos for free. In Lightroom, it takes a couple of minutes to set up and just a few seconds per property to choose which client’s logo to use. For their point-of-view, their branding becomes embedded in the public psyche and from your point-of-view, other agents can’t use the photos unless they heavily crop the logo out (effectively reducing the value of stealing your photos) or they pay you for using your photos. Two additional advantages: it’s more likely the new agency will become one of your customers and it’s more likely the original agency will continue to use you, rather than turn to someone else who doesn’t add their logo as a free service.

  • Thank you so much for the reply Scott. Yes, you are correct. That contest waiver did allow the magazine to print the photos (or use them for almost anything) which I was ok with. However, the third parties never got my permission to use my photos in their advertising in the magazine or on their websites. The Salon owner actually believes that there was a waiver that I was supposed to sign from the design firm (the largest corporation using my photos) but I never saw it. She has good reason to believe its actually sitting on a desk somewhere without my signature. But they are not the only company using the photos. Some of them have my photos on the first page of their websites showing off their products. I totally realize that it could be a costly battle and at the end of the day its not worth it to go after anyone for compensation (as I’m sure you’ve had to deal with a gazillion times in your career) but it just seems so strange given the fact that everyone keeps talking about how much they make in re-licensing fees. Isn’t that what this is? Re-licesning these photos to all these companies that want to use them in their advertising? The Salon has already happily watched me make a little money (very little to my fault) off of the photographs from those hair product companies that wanted to use them. They contacted me and had to pay. So why does everyone else not have to play by the rules? Or at least give me photo credit?

    I know now that I screwed up not having a contract with the Salon big time but I was always under the assumption that we are protected by the law just having taken the photograph. Am I wrong? Honest question. I really don’t know anymore. Oh, and “I, Darin Wood, solemnly swear not to take my camera outside into this savage, cruel world without bringing a contract stapled to my forehead from now on!” After this…you got it! Believe me! However, I’m a little confused about the type of contracts. Should I only require a full on contract for things that are not related to RE or the MLS? I’ve read things you’ve stated before saying that a Terms and Conditions agreement (initialed) would suffice. Is this strictly for real estate agents that you are talking about? I guess I can hire a lawyer to write up a contract if something like this comes along and then have a T&C that I give my real estate clients?

    Again, thanks so much for the reply or anyone else who wants to jump in. Gee guys, knowing how nice Scott is and all the info he gives all of us, I don’t understand why I had to pay for his flash photography video series. HA! Kidding! It’s the best and so are you! Congratulations on all the attention its getting. Not a surprise at all.

  • When I was doing real estate I found it very useful to know the rules of the Houston Association of Realtors. There are very clear restrictions on the use of digital images by listing agents and by subsequent agents. If an image is used by an agent without authorization the agent or the broker can be fined. Fines in the Houston MLS can be up to $250 per listing. I took some photos of a high rise condo and took some decent photos of the common areas and the condos agents then used my photos. I complained to HAR and it took a while for the agent to be notified. When the agent did not remove the photos they were fined $250 for 4 different listings that had my photos. That is one way to prevent others from using your work. I often check to see if a listing with my photos is relisted. If it is and if my photos are used I call the new listing agent and ask them to remove the photos or I ask them to hire me.

    Know the local MLS rules. They can protect you and your work. There is a lot of very useful information in the comments, too. Spell out your terms and conditions.

  • I had a discussion with a client yesterday regarding image reuse. He had three home he needed photography of and said he also had a fourth listing but that the house had been listed before and that the prior agent had paid for professional images and that he would use those. I mentioned that if he used the existing images he may get a bill from the other photographer. He said no that MLS owned the images and anybody could use them. He also said that any images, mine included, were the property of the MLS because they had MLS stamped all over them when they go on the site. Now I’ve been a commercial photographer for over thirty years and I’ve explained copy right law to so many clients that I can’t count them but this open faced explanation of something that I know isn’t right that I got thrown and didn’t know what to say. I’m researching the MLS use policy today to see what they actually say about the copy right issue. Could be interesting.

    Mike

  • @Mike, As I’ve documented on many posts on this subject your client and local MLS are flat wrong! An there have been cases tested in court that demonstrate this see: http://photographyforrealestate.net/2012/05/28/lobby-your-local-mls-to-adopt-media-licensing-like-this/

    MLSs get by with this nonsense because most people effected (photographers like you) don’t have the money to challenge them in court… when they get challenged they loose.

  • Thanks for getting back to me and the interesting link. I wrote to the local mls this morning and this is the answer I got back from them this afternoon. “Mike,

    When agents upload photos to the MLS, they grant us reproduction rights
    to those photos. Photos are sent out to various websites for
    advertising purposes by the listing agent. Photos are also used by
    other agents and appraisers for market analysis and valuation purposes.
    I have included our photo submission rules that explain to agents that
    by submitting photos, they grant us those rights.

    Section 1.15 – Submitting Photos to MLS:
    Any Broker or Agent who submits photos and/or sketches to the Tucson
    Association of REALTORS(r) Multiple
    Listing Service grants the rights for TAR/MLS to reproduce that
    photograph/sketch in any manner. If you are not
    granting such rights, DO NOT submit the photo/sketch.
    The Broker or Agent submitting a photograph/sketch to TAR/MLS represents
    that he/she has the authority to
    grant rights to TAR/MLS to reproduce the photograph/sketch in any
    manner, including sharing with an internet
    data exchange (“IDX”), and the Broker or Agent agrees to defend,
    indemnify and hold harmless TAR/MLS and the
    IDX for any action or liability that may arise therefrom, including, but
    not limited to an action in copyright
    infringement. (Amended 07/2012)
    The copying of photographs/sketches/descriptive content from a previous
    listing is prohibited unless permission is
    granted in writing by the original Broker that provided the content.”

    My client is wrong by my reading. I have to let him know to protect him as well as educate him.

    This line is key, “The copying of photographs/sketches/descriptive content from a previous
    listing is prohibited unless permission is
    granted in writing by the original Broker that provided the content.” This also illustrates why it’s a good thing to have written into your contract your terms and conditions.

    Mike

  • @Mike- You (the photographer) own the copyright when you press the shutter release. It’s in your best interest to license the photos to your clients in a way so they can comply with their MLS rules, but you should only convey to your client, and the MLS a temporary use license for the duration of the listing. This way you can resell the images for whatever use you choose.

  • Larry I fully concur. I’ve been working that way with my corporate and editorial clients for a very long time. Having read a great deal here on the forum it seems like the real estate photography market was a bit like the wild west without many cohesive standards. Glad to see that I don’t need to bend over to get work.

    Mike

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