Broker Release Asks For Exclusive Licensing Of Property Photos

August 18th, 2013

BecarefulA couple of days ago a real estate photographer on the east coast sent me a copy of a photo release that a real estate brokerage asked him to sign. Here is the first paragraph of the release:

I hereby assign to x, its agents, assigns or successors in interest my entire right, title and interest, if any, in and to photographic pictures/video (“Photos”) provided by me to x such that the Photos may be used in any and all publications, advertising, news media, video, internet and any other media hereafter devised. I waive any right to inspect and/or approve the finished advertising copy or other product incorporating the Photos.

An attorney advised the photographer that by signing this release he would be giving up all his rights to the images to the broker. Also, it could prohibit him from using those images on his website or in any promotional material for his business.

Has anyone else been asked to sign a release like this? I could be wrong, but my guess is that this release was created by a corporate lawyer that was over focused on protecting broker without understanding the interests and conventions of real estate photographers. The standard conventions of real estate photographers are:

  1. To license photos to their clients only for the duration of the specific listing in the photos, not to sell all rights to the client.
  2. Many real estate photographers also license the same photos they shoot for agents to other clients for various uses.
  3. Most real estate photographer also use the photos they license to agents for listings for marketing their own business.

So anyone who’s going to sign a release like this should be charging WAY more than you would if you were just licensed the photos to be used for the listing.

Update: I’ve confirmed that the broker involved here is looking only to cover what we would all consider the “Intended use” of the images so this situation is largely a non-issue as long as photographers are not afraid to speak with the client about it.

So the important lesson here is to agree on photo licensing up front and if ask to sign what looks like an unreasonable release talk to the client about it… it may not be what it appears.

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18 Responses to “Broker Release Asks For Exclusive Licensing Of Property Photos”

  • From what I have learned from attorneys that specialize in photography law, Dan’s attorney is correct. The job becomes, in essence, a work-for-hire arrangement and Dan will not have any legal rights to the photographs for any purpose. It is not a good idea to sign your customer’s contract but rather have them sign yours. Coldwell Banker’s attorney that drafted the contract is using some fairly boilerplate language without having any experience in the common business practices of the creative arts. If CB is willing to pay 4x the photographer’s standard day rate it might be a good deal. The downside is that if Dan does not get paid for the job he has little recourse other than small claims court. If Dan is licensing the pictures to CB and has stated that the license is valid upon full payment of the invoice, there are many more avenues available to put pressure on them to get paid (DMCA, notifying the MLS of a copyright violation, etc.)

    I believe that there was a thread on the Flickr discussion group about an agent/agency that wanted full ownership of the photos they commissioned and also a case of an agent that insisted that they owned the photos of a property. I make sure that any new customers I get are fully aware of how I am licensing photos for their use. Since I allow the purchaser (an agent or office) to use the photos I provide to advertise themselves in the future, there isn’t any real reason why they would need to own the photos. The only significant prohibition is the transfer of the images to any third party.

    If Coldwell Banker is a valued customer, it will be worth the effort to speak with the legal department that drafted release to find out what their core concerns are. If they brush Dan off with a form letter or a stone-wall statement such as “This is the way we will be handling photographers going forward”, thank them for any previous business and walk away. Maybe they will come back later if they get too much backlash from other professional photographers and cannot get quality work. The thing never to do will be to talk about CB’s practices online. http://www.thecopyrightzone.com for more info.

  • oops, thecopyrightzone.com

    They should get the other domain and forward it. I make the mistake all of the time.

  • I has a similar request from a commercial client when I requested to shoot their structure. I scratched out the requirment and inserted the image licensing that I proposed that accomplised what they were really looking for. Once I explained the issue to my contact, and why they didnt really need me to sign over copyright, they modified the contract accordingly, and the shoot was able to take place. Sounds like the same issue, they were using a boilerplate and werent really understanding what it was/ and or is they really need.

  • I am a copyright lawyer who represents real estate photographers and this is the first time I am hearing about a large national brokerage requiring photographers to assign their work. The author and Ken Brown are correct, signing this transfers all copyright ownership to CB. I would be interested to speak to CB to find out whether this is a local thing with Dan Ryan’s area CB office or a new national policy for CB. If anyone has insight to share you can reach me at joel.rothman [at] sriplaw.com.

  • Really interesting Ken and useful link ~ thanks. And Larry, love the picture : just how I feel ! I’ve met this before but in fairness not with real estate agents, though I could see it becoming a trend if we don’t wise up as suppliers of imagery : it seems it’s easier for the legal eagles to come up with all the no reasons without considering that a well-stuctured licensing agreement (drafted, as Ken says, by the photographer) is actually fine for the agent’s requirements: trouble is they are probably used to the heady world of advertising images where every single image use is accounted for and billed (sometimes a package of uses is bundled together) and there will be tales of photographers taking legal action to pursue additional usage which was not originally agreed: so it’s easier for the legal people to just push hard for what they call an all rights buy-out, effectively rendering the photographer’s service as work made for hire, hence the broad brush and unnecessarily stringent contract. It’s way overkill for what is in fact a simple business transaction : “here are your images which are released for one purpose: to sell this one property”. I shoot for RE agents and have then supplied the same images to the developer/ builder at a modest additional fee. The agent understands that their usage extends to their own commercial activity only, not that of another business : maintaining your copyright actually works in the agents’ favour as, rather than supplying the shots and walking away, you have a continued interest in breaches of copyright. A homeowner supplied an image from a shoot I did for one long term agent/ client to another agent after she decided to switch (at considerable loss to my client). I actually read the riot act with the new agent because my copyright had been infringed : but it ensured that the time and expense my original client had gone to in getting the property shot was respected. If I had been on a work for hire arrangement, I wouldn’t have had much incentive to take it further. I always stress that a licence works in both my favour and that of the client for this reason. Sure as Larry says there are times when you might agree to an all rights buyout but make sure all your lost avenues of revenue are taken in to consideration when coming up with a price, and ensure that you are still allowed to use the shots on your site to go on marketing your services.

  • The World just keeps getting more complicated. I have been an advertising photographer for over 40 years, and certainly copyrights were a part of a business that required attention. That said, everyone out there is getting closer to the proprietary direction when they purchase photographs. If that is the true trend, and I believe it is, then up your prices. If we all did that, clients might think twice before paying extra for something, in my experience, rarely becomes an issue.

    Explaining to your client why you are hesitant to sign a blanket use policy will help you, and the industry. It’s time to have a rational discussion with the real estate industry. Working with agents that are often immersed in legal issues would help a lot, and I think you would find most of them open to a middle ground that works for both the provider and the buyer. Making them aware of how the might benefit from a wider audience seeing their properties would be a good way to go, and certainly if the photographer wants to use the photos in the promotion of his business is very unlikely to do anything but give the agent, the agency, and the seller more exposure. Isn’t that what we all want?

  • We do work with Caldwell Banker all the time and sign their contract with the following changes: This photography is work for hire and is specifically for the purpose of selling this property and may not be used for any other purpose. This work for hire may be used by the photographer to promote his own work. Since we already charge more than the average real estate photographer, we really don’t mind signing the contract with these caveats. And, if we are talking about real estate photography and not commercial photography (i.e. a hotel to get more guests), then I really don’t think it matters what is done with the pictures. Real estate photography is such a quick in/out and should be highly profitable if priced correctly that it shouldn’t matter that it is work for hire rather than “licensed”. And whether it is work for hire or sold, don’t forget the sales tax. Here in arizona – if it is delivered within Arizona either physically or electronically – you pay the full sales tax not only on the sale of the photos (wfh) but also any rental equipment/personnel etc that you add to the invoice. Finally – we are in economically challenged times all over the world and if you are able to get the work – take it – just make sure you price it to stay in business. Real estate photography is one of the few types of photography where license is not as important as getting the most you can for the hours you put in.

  • I find myself in the unique position of being a Realtor in an upper tier resort area on the coast and past professional photographer/film maker. I do all my own work. My photography/advertising is a significant edge for me in my market. Since we are now allowed 30 images and a VT in our MLS, I would be interested in your opinion as to what type of release/contract I should present to my Sellers. My only interest in a contract/release form would be to prevent the future use of my photography in future sales. My resort market has a much faster turnover rate than the standard residential market. I want to prevent a future listing agent from “cloning” my pictures for the resale a few years later. It is not unusual (in normal markets) for the home to resell in a matter of a few years. My intent is to protect myself legally while being fair to my Seller. As you know, the Brokerage owns the listing, not the Realtor. I need a standalone form for my Seller that does not conflict with my Broker. Thank you for your interest in this matter.

  • @john- The problem is you can easily come up with a licensing statement for your seller to sign where they agree to only use your photos for the purpose of your listing but if the listing is syndicated to many other sites (like Zillow, etc.) other future listing agents can get your photos without getting them from your seller. My photos are on Zillow from a rental I sold over a year ago. You need a big stick and an enforcement “organization”;)

  • Building on Suzanne’s comment, if in Michigan, digital product deliverables are not taxed. I can deliver w/o tax…unless they ask for prints or delivery on a CD. Then that portion is taxable.

  • This is interesting for sure…I have a question for everyone I’ve been shooting real estate photos for ReMax for years now and I have gotten better everyday. I actually use it for a fill between other projects…ie weddings and seniors. I just noticed the other day that they are actually printing photographs for mailers and I wasn’t aware of it. They also post images on MLS and the photo says it’s copyright belongs to MLS under the image. Is this happening to anyone else?? Just curious..I feel I need to make some changes to the business model I have with them except I also believe I will lose them in the process because my pricing doesn’t reflect what they are actually getting of my services.

    -Just looking for suggestions and insight from everyone here because I am miles away from getting this thing straight.

    Thanks in advance! I really enjoy the website….

    -Justin

  • @Justin – Many (not all) MLS systems in the US have policies and procedures (like claiming they own photo copyright for photos uploaded to their system) that have not been legally challenged because most photographers don’t have the money to legally challenge MLSs.

    There is a great case in Central Kansas (see this post: http://photographyforrealestate.net/2012/05/28/lobby-your-local-mls-to-adopt-media-licensing-like-this/) where because an agent unknowingly uploaded a Getty stock image to her Central Kansas MLS Getty Images (a large stock photo company with deep pockets) sued the SCKMLS and got them straightened around very quickly. The point is that these MLS copyright grab rules will not standup in court but who has the money to get the problem fixed.

  • @larry, you don’t necessarily need money. If you register your work with the copyright office on a regular basis this entitles you to attorneys’ fees and statutory damages which makes it very attractive for an attorney like me to take the case with little or no cost to the photographer.

  • @Joel- Then there’s some work cut out for you. There’s at least 30 or 40 MLSs around the US that have rules that say the act of uploading photos to the MLS transfers the copyright to the MLS… total bullshit! Most of them even put their MLS watermark on the photos. Go get em man! One doesn’t need to be an IP attorney to know that it wouldn’t stand up to a challenge.

  • One point: while it’s true that there are clueless MLS boards with egregious TOS language that attempts to claim ownership of images, that shouldn’t be confused with an MLS copyrighting the CONTENT on their site. This is no different than the copyright that appears in a magazine. The magazine isn’t asserting ownership over the images I licensed to them, they’re copyrighting the compilation, layout, and everything that isn’t already owned by the contributors and advertisers.

  • Too many times lawyer are stuck in legalland and not the real world. It best for the people to talk directly and then have a lawyer draw up paperwork according to the agreement. They should also discuss the various inadvertent effects the agreement may have.

  • I agree with Scott on this. My local MLS states in their rules that they own the copyright to everything that is uploaded to the MLS. When I sent them an email challenging this they responded that they are only copyrighting the compilation of the listing and not the images. That response was from quoted text from the NAR’s rules.

  • @Larry, thanks for the update. I’m glad that Dan talked to the client and was able to work with them for a mutually agreeable contract. I’ve gone through similar situations with customers asking for something that seemed excessive or odd to find out later what they really wanted/needed. A couple of times I was ready to put both feet in my mouth and walk away from a good customer. Looking back, I’m glad I took a deep breath and acted much more reasonably.That’s not to say that my track record is 100%. Live, learn, teach.

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