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Example Of What Can Happen If Your Clients Don’t Understand Your Photo Licensing

April 1st, 2013

CopyrightI recently heard the story below from a reader. We’ve talked about this issue before, but it keeps coming up over and over. This case is one of the worst I’ve heard. The underlying issues are:

  1. Agents generally don’t understand photo licensing even though you think they should.
  2. If you don’t educate agents and make sure your licensing terms are understood they may do something unexpected!

The last time we discussed this subject Scott Hargis made the excellent point that we all have many examples like music, software, e-books and movies that are licensed in a similar way to photos (for a limited use and relicensed to many people). Scott suggests that you explain to agents that photos work like music on their iPod. They usually get that.

Here is an actual example of how bad things can get if your client doesn’t understand your photo licensing up front. I’ve left out all the names etc, because that’s not important. This happened in a large metro area in the US. But trust me it can happen anywhere:

A beginning real estate photographer shot a property for a stager in order to get build a business relationship with the stager and to build his portfolio. He also let the listing agent use the photos for the listing. The listing agent was on site during the shoot. There was no discussion with either the stager or the listing agent about photo licensing (who owned the photos and who could do what with the photos) the stager nor the listing paid anything for the photos.

Sometime after the property was sold it went on the market again, listed by a different agent. That new listing agent contacted the photographer and asked to use the photos from the first listing. The photographer agreed to let the new listing agent use the photos and charged him $100.

When the first listing agent saw the photos being used for a second listing he went ballistic claiming that he owned the copyright to the photos and was going to take various legal actions. Further, he rallied the support of the other agents in his office, the broker and company all the way to the vice president convincing them all that no one in the company should deal with this photographer anymore because he has behaved unethically.

At this point you are probably like I was, laughing and shaking your head exclaiming that it’s the first listing agent that is out of line and behaving unethically, not the photographer! To me the biggest villain in this story is the broker in charge of the office where the first listing agent is licensed! The brokers job is to help to educate the agents in their office rather than participating in this kind of foolishness. The fact that the broker doesn’t even understand photo licensing in general shows how wide spread the lack of understanding of this subject is.

To summarize general real estate photo licensing conventions for those just getting in the business:

  1. Usual conventions are that the person that clicks the shutter release owns the copyright (unless the photographer has signed a work for hire agreement) even though they do not officially register the copyright with the copyright office. However, it’s good practice to register all your important photos.
  2. It is standard practice to license the listing agent you shoot for the use of photos only for the duration of their  listing and perhaps use in a limited way or just some medias.
  3. Many real estate photographers license the same photos to multiple parties. The listing agent, a stager, a designer, a second listing agent when the property is sold again, a builder etc. and make a significant amount of money in doing so. This practice is standard, legal and ethical.

But don’t assume that any given agent knows anything about the above three items. Take the time to put your licensing terms in black and white and explain those terms to your clients before you shoot for them because there’s a good chance the client doesn’t understand, or doesn’t want to understand.

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19 Responses to “Example Of What Can Happen If Your Clients Don’t Understand Your Photo Licensing”

  • I have this on my web site (feel free to use it and please let me know if you think it needs modifying):

    Who owns copyright to the photos?

    All copyright (expressed or implied) will be retained by us, unless an agreement has been made to the contrary (or in certain circumstances where specified in the Copyright Act 1968).  On receipt of full payment (or within 7 days from the date shown on our invoice, if applicable), we assign to the person that paid for the photos (i.e. the agent or owner, as the case may be) limited rights to do as they wish with the photos, such as storing, editing, printing, displaying and transmitting the photos, but only in relation to marketing or promotion of the property being sold or leased.  Photos may not be sold, leased or otherwise transferred to any other person (including to other owners or agents), unless where expressly agreed to by us.  Location shots taken or provided in relation to a property may only be used in relation to that property and not in relation to any other property.  Use of photos outside of these guidelines will constitute a breach of our copyright.

  • Dave,
    What ever you have for your “notice” or “terms of service” or in my case my “Licensing Agreement” should be on your invoice. It must be signed by the purchaser at the time of shooting! I use an app on my iPad called Quicksale. It allows me to input my own “terms” on the reverse of my invoice. It also allows me to collect a signature (right on the iPad) on the front or the back of the invoice indicating the purchasing party read the “terms” and actually agrees to them. I can then email a copy to them and CC myself right away. To play it safe when I return to the office I print out two copies, Mail one to them and file one for myself. That way they have a copy of the “terms” and their signature is right next to it. There would be a date on the invoice so it is signed and dated.

    There are many other awesome feature of this app. It is worth at least looking into it.

    Here is the link to the makers of the app:
    http://www.intellixense.com

    Here is a link to the settings: (scroll down until you see the signature section)
    http://www.intellixense.com/?q=help&product=quicksaleipad&page=settings

    Jeremy

  • As a side note, you can create a copyright symbol anywhere by typing Alt 0169 © (Win). Make certain numbers lock is disabled.

  • Or just ask the broker, “Who has the original images with the EXIF data showing original ownership and copyright? Oh yeah, me!” Even if the office did pursue legal action, their own lawyer would shut down that nonsense pretty quickly.

  • Your statement in paragraph 1 “… it’s good practice to register all your important photos because registration is required before any legal remedies may be sought in federal court.” Is not correct.

    Registration permits you to seek the statutory damages amount (substantial) provided by copyright law without having to prove any actual financial loss or copyright-it’s kind of a slam dunk. However, you are free to pursue a copyright claim without registration, but then you have to prove both your copyright and the actual amount of damages. So you could win your case and only get an award of $100. That’s why it’s hard to get a lawyer in most cases where there isn’t copyright registration-there’s not enough money at play and too many ways to lose at trial.

    Perhaps what you meant to say was, “… it’s good practice to register all your important photos because registration is required before the statutory remedies, which allow for substantial damages without having to prove any loss, may be sought in federal court.”

  • We put our licensing terms in the agreement and send it by email. We then have the agent reply to the email containing everything and the subject matter is “I Agree to the terms and services by paying this invoice”. The agent then pays the invoice and then we go shoot – thereby having our money and our license settled.

  • I’ve been a travel photographer for 10 years and before that I practiced law for almost 20 (I guess I’m a recovering attorney). I’ve been following this excellent blog for a few months because I’m considering expanding my offerings to include real estate photography.
    You do need to register your copyright before filing a lawsuit in federal court. As stated in the U.S. Copyright Office’s web site, “Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.” If the photographer wins in court, he or she would be entitled to attorney fees and statutory damages as John mentioned above. Lawsuits, although certainly one way to resolve disputes, should be used as a last resort (sort of like heart surgery). I think Larry is absolutely right when he emphasizes that educating your clients is the way to go here.
    For a surprisingly readable introduction to copyright, the Copyright Office has posted a document titled Copyright Basics: http://www.copyright.gov/circs/circ01.pdf
    And recently PhotoShelter published a free guide called The Photographer’s Guide to Copyright: http://www.photoshelter.com/mkt/research/photographers-guide-to-copyright
    I have also written an article about how to register your work online: http://blog.padroimages.com/2012/03/02/registering-your-copyright-online/

  • I would never ever hire a photographer that didn’t gave me the total ownership of the photos. That’s like the main reason why I’m hiring. I pay and I don’t even own the photos? no way.
    What forbids the photographer from selling the photos to the competition? or to the owner or builder of the property?
    What if I want to use the photos for other marketing? for a newspaper ad, for tv, for flyers, for more websites? even after it was sold!
    What if I don’t like the photos and have to hire someone to edit them to make them better?
    I want to do whatever I want with the photos. I need that.
    etc etc.
    This is a major deal breaker for me.
    Ofc I would never ever resell the photos. If a property goes on the market again and the seller wants to use the photos then he has to hire me. Deal or no deal. why should I sell the photos to another agent? that’s like giving up to the competition. It’s so stupid.
    Also I need absolute control over the photos due to privacy reasons and marketing strategy. No one but myself must be able to control what I do with the photos that I paid for.
    Wouldn’t mind reaching some sort of agreement with the photographer. Like saying that I can’t sell the photos to anyone, but he must do the same. Everyone gets happy because even if another agent wants to use the photos he can’t and he has to hire that photographer again.

  • So Pedro — how do you deal with things like music, books, and movies? If you’ve got a DVD of “Titanic” on the shelf, do you believe that you OWN the movie Titanic? Or do you just have a license for limited, personal viewing of the movie in your home?

    What you’re asking for, in real estate photography, is absolutely available. I just wonder if you’re prepared to pay for it. It’s the difference between buying a bus ticket (which is what you need) and buying the bus itself (which would be pretty stupid). It would also be blindingly stupid for the bus company to sell you the bus outright for the price of a ticket to ride across town.

    No doubt you can find someone who will work on your terms. But in most parts of the world, you’ll be constrained to working with the worst of the worst photographers who A) don’t know any better, or B) have no choice because they’re so bad at what they do they can’t get their terms met. Either way, the question is, can you live with the crappy photos you’re going to get? If the answer is Yes, then you’re doing the right thing. For most real estate agents in urban areas, the answer would be a very loud NO. They need good photos, and good photos come from good photographers.

  • @Pedro: I see that Portugal was a signatory to the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization Copyright Treaty. As such (and I know I’m paraphrasing a lot for the sake of brevity but I believe this to be the case in Portugal), unless the person taking the photos was an employee of yours and they did so in the course of that employment or the photo was commissioned for ‘private or domestic’ purposes, such as a wedding (and there is no agreement otherwise), then the photographer will be the copyright owner. So, unless you reach agreement with the photographer, he or she owns it and can do what he or she want to with it, such as grant you a license to use it (whether temporarily or permanently and whether on a web site, in print etc), re-sell it, publish it, and so on. Some may even choose to transfer copyright to you but there must be agreement, preferably in writing to document it so that it can be relied upon in a court of law. If you didn’t like my photos, I would take them again, or edit them, or not charge you (but other photographers might charge you for their time and expenses – that’s up to them).

    If you “buy” a web site design (and there are plenty around – you might pay $100 for that privilege), you’re actually buying a license to use that design. Many web site designers however, are prepared to “sell” you the design in that, once you pay them perhaps $3-5,000, they will remove that design from sale so that no-one else can buy it in the future (of course, those who have already paid for their license won’t be asked to take them off). Alternately, you could hire someone to produce one from scratch, but that would probably cost the same. Similarly, if I’m commissioned to shoot a resort, golf course or building for commercial or advertising purposes, the person commissioning me to do so generally wants copyright and accordingly restrictions on other people publishing and selling those images, and for that privilege, I charge a much greater amount. They certainly don’t get it for $150!

  • Oh, and one more thing. When you say “If a property goes on the market again and the seller wants to use the photos then he has to hire me. Deal or no deal. why should I sell the photos to another agent? that’s like giving up to the competition. It’s so stupid.” Wow! If you don’t sell their house within a reasonable amount of time, perhaps that’s the reason why they’re going to another agent. Perhaps better photos might have worked!

  • Pedro, here are my basic license terms for real estate photography:

    1. I retain copyright and reserve all rights.

    2. The client may use the photos in all media necessary to market the property for sale, until they either a) sell the property or b) no longer have the listing.

    3. The license is non-exclusive and non-transferrable to third parties without my permission.

    4. After they sell a property, clients may use a couple of images to illustrate a sold property in their marketing.

    As far as I can tell, only one real estate agent has not worked with me because he wanted to “own” the photos, and I seem to have no problem with
    clients understanding the basics of my license terms. Perhaps that is because I live in a part of the world where people are especially attuned to intellectual/creative property
    rights, and many of my real estate clients have previously been involved in the law, software development and sales, and other similar kinds of professions. A number of
    my clients are among the top producers in the region, and even in the US.

  • I include a copy of my license terms on every invoice I send out. It clearly states that I retain copyright and the images are only for the named to use. I also make sure to have a brief conversation about copyright before I start working with a new client. To date, I have had plenty of copyright infringements but thankfully none from my actual clients. I credit most of that to taking the time up front to educate them how my licensing works. Property releases and filing copyright are also something I try to stay on top of…

    @Pedro – I think most photographers would gladly sell you the copyright to the images they provide you to use, at a price of course. What a lot of people fail to realize is that there is a secondary market for real estate images. Last year, the average resale license for me was approximately $300 per image, and thats not accounting for a few big distribution licenses that were in the four figures. So yeah, in the commercial licensing world these images we work so hard at still have value even after the home sells. Why would a photographer want to give that up? I dont know about others, but that is huge motivation for me to bring my ‘A’ game to every shoot I do.

    Now selling the images to the next listing agent is an entirely different matter, but that can easily be addressed without transferring the copyright. You end by saying that the new agent would have to hire the photographer again to get new images. How is that much different than the photographer just reselling the photos they already did? In my eyes, that could actually work against you. I mean the photographer has the benefit of reshooting the same subject matter knowing more than what they did the first time around. Assuming the photographer is committed to always growing in their craft, they could have a new equipment, a better developed sense of composition, sharper skills at the computer, etc…

  • […] Larry Lohrman’s PFRE site had a great post on this yesterday. Here is a link to his blog post http://photographyforrealestate.net/2013/04/01/example-of-what-can-happen-if-your-clients-dont-under… […]

  • @ Efrain

    Sorry, I wasn’t being clear. What I was referring to was the timing of registering your photographs-a prophylactic filing periodically as a routine business practice so all your photos are registered (which was what I thought Larry was alluding to); or filing after the fact in the case of infringement.

    You are correct that, if you are seeking recovery under copyright law and you haven’t registered before the infringement, then you must register to establish your claim. It’s a technical requirement for filing the lawsuit and alleging copyright infringement (can’t claim infringement if you haven’t claimed copyright) . In this situation, the filing of a copyright in concert with your claim for infringement will likely lead to a challenge to the copyright itself, exacerbating the legal fees and costs at trial.

    The real key is if that copyright registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual (provable) damages and profits is available to the copyright owner. In the case of a typical real estate photograph that is probably in the low hundreds of dollars. But, to get that you will have to pay your own attorney fees-figure on five figures just to get the ball rolling, and six figures if the case ends up going to trial. So, you’ll likely lose money (lots of money) if you file too late.

    The award of statutory damages and attorney’s fees is the big stick in copyright law that prevents most cases from going to trial – less than one percent of infringement suits filed. That’s because the statutory damages will likely be less of an expense for the infringer than paying the plaintiff’s attorney fees if the case goes as far as trial and they lose.

    If you haven’t registered the copyright within 3 months after publication or before an infringement, that’s cash you’ll have to pay out of pocket, which is likely to be more than any damages you can hope to recover unless the infringing work was a collector’s item or had that much of an impact on your own sales. The exception here is if the infringement was online, in which case the Digital Millennium Copyright Act (DMCA) may allow you to recover legal costs, if the court decides to award them.

    So best business practice to both protect your copyright and to ensure that you can claim statutory damages and attorneys fees is to register your work, in bulk, every 60 days and immediately if you discover infringement of an unregistered work within the 60 day window.

    Finally, you are free to sue in state court or even small claims, for theft or fraud as long as you are not asserting copyright and asking for statutory copyright protection.

  • You could always add the agent’s logo to every photo. Setting it up in Lightroom is a breeze and it only adds a couple of seconds to the export process. The agency gets valuable branding exposure out there and other agents can’t use the photos unless they’re heavily cropped. I offer it for free because, in the past, I’ve seen other agents using my images.

  • I received a letter a few days ago from a firm that had me give away all rights to the photos. They said that this was because of liability on my part for images being posted after the house has already closed. On Flickr last year, I brought this up, but it is coming back around again (did not sign back then). Apparently, the firm has been sued multiple times for having photos online and they don’t want that liability trickling down to the photographers. I even talked to their legal team last year to figure out why and the above was the explanation…

    Huge national firm BTW.

    Part of it here…

    Photographer agrees that all information, photographs and video related to and/or part of any work performed under this agreement (hereinafter the “Works”) are works made for hire and all rights in such Works shall be the property of Broker. If any of the Works are ever determined not to be works made for hire, Photographer hereby assigns all rights in the Works to Broker. Photographer acknowledges that the Works are the separate and exclusive property of Broker and that Photographer retains no rights in the Works.

  • Transparancy and gentlemen agreements are my no1 (and 2) terms.
    You pay the bill ill deliver the images. On thrustworthy relations ill deliver the images before the pay my bill.

    One price fits all. I dont want to use my precious time tracking my images to see where my images are used for. I just want the whole continuous business.

    But i always keep the rights using my images for my own presentations and marketing.

    Shaking hands and make that gentlemens agreement! Thats my way of doing business.

    My benefits? 750 shoots a year.

  • @Jed, Huge National corp. is trying to get you to give up your rights. You did the right thing by not signing. A friend of mine has a subscription to KelbyTraining and we recently watched a video they have on copyrights for photographers. The attorney on the video is a character. One of his pieces of advice was never to sign your customers contract, use your own, always. The photographer on the video and the attorney have a column in Photoshop User IIRC that addresses copyright and (superficially) release issues. Makes me wish I could spend the money on a NAPP membership to get the magazine. The video has a segment where the photographer registers a set of photos online showing the process step by step. It’s dead simple and only takes a few minutes once you’re registered. The first time takes a bit longer as you need to type in all of your information. The question I would like to ask an attorney about is the situation that obtains with real estate photos since they are generally “published” within a day. Unpublished photos are supposedly easier to register and the differences with registering published photos was not addressed. The fee is $35 dollars for each registration and you can submit thousands of photos at a time in theory with the same payment. I can’t see spending $35 for each day of shooting. The cost would be prohibitive, especially if I only did one $85 job that day. You do not have to register your copyright to bring charges, but you are limited in what you can recover which will usually come down to just your normal fee for shooting that sort of thing. If you register a your copyright, you can receive statutory damages as well as the ability to recover your attorney costs and court fees.

    @Huub, I agree with your approach in theory and the agreement with a handshake is the way I would prefer to operate. The lesson that’s been beaten in to me on too many occasions is that many people in the big city weren’t raised properly. I use a very simple contract that states what I am providing, the licensing conditions and what we will do in the case of a dispute. I’ve found through other people’s stories that a simple contract that is likely to be heard in a Small Claims Court does not need to be word perfect to be enforceable. Judges in those courts are a little looser and go by the spirit of the document and not some arcane interpretation based on precedent and tradition. If the amounts are going to be over a couple of thousand dollars or your are taking on large corporations as customers, you want to work with an attorney and draft a more comprehensive document, probably written mostly in Latin. Having something in writing keeps both parties honest. I hope to never really need the contract or even to make a reference to it. I look at it a good instrument to negotiate with a new client about to make sure we both know what to expect. I’ll will bend on most items except the licensing terms to make the agent/agency feel like they aren’t getting something shoved down their throats. In fact, I think the only 2 items in the whole document that concern me is my copyright and getting paid on time.

    I had a job last year where I did a reverse license. The local airport wanted somebody to make some aerial shots of the property. I talked with the business development director about copyright issues and she caught on fast. I gave the the example of buying a CD and not owning the music, just a license to listen to it. She understood that she wasn’t savvy enough to track usages to make sure that the airport stayed within the terms of the license. They wanted the photos for all sorts of uses so we agreed on a work-for-hire arrangement where I was licensed to use the photos forever in my portfolio to advertise my services. Backwards from the usual set-up. The airport paid me $500 for 4 hours of work dangling out the side of a helicopter they provided with a moderately famous pilot. Honestly, I might have paid them for all of the fun. I loved the experience. I wasn’t really dangling off the side of the helicopter, but the doors were off and the pilot made the flights fun. $500 is roughly my no-frills local day rate, so I did pretty good and I get more work from the airport partially for being easy to work with. I’m sure if I ever came up with a sale for the photos I made, the airport would be happy to license them back to me for peanuts. I did the job on a handshake. I wasn’t out of pocket for more than a gallon of gas in the car and I know all of the people involved so I didn’t feel that I might get stiffed on payment. I imagine that if they didn’t pay me, it could be argued that the photos would not be work-for-hire and the copyright would remain with me (or revert).

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