An Open Letter To Multiple Listing Services Concerning Photo Rights

April 13th, 2014

copyrightMultiple Listing Services (MLS) provide a valuable regulatory service in the real estate industry. They create rules and legal forms that guide the advertising and sale of all property in a given geographic area.

In most metropolitan areas professional photography has become an integral part of the listing and sale of real estate and many Realtors make use of professional photographers to create marketing materials yet most MLSs in the US completely ignore photographers rights. Here are a 3 important rights of that Realtors and MLSs need to honor:

  1. Professional photographers own the copyright to the photos they take for listing agents even if they don’t file copyright with the US copyright office.
  2. Many photographers resell the photos, to builders, architects, designers and others. For some photographers, this is a significant source of income.
  3. Because of 2, when photographers shoot listing photos for a listing agent they expect to license those photos for use limited to the advertising and sale of the property by the agent they shot the photos for.

Because so few Realtors and MLSs understand copyright most professional real estate photographers have their own license agreement that documents the above three rights.

Typical MLS rules for most MLSs in the US completely ignore and/or contradict photographer’s photo rights. This situation causes endless confusion and misunderstandings between photographers, Realtors. The worst cases get sorted out in litigation. These misunderstandings arise from the fact that when most MLS rules were written when Realtors took their own photos and didn’t really care about photo rules and the rules are written to only protect the only the MLS and it’s members. Because the rights of photographers are not considered, the photo licensing rules for most MLSs are completely dysfunctional and broken!

Professional photographers are now becoming such an integral part of the real estate marketing process that their rights and interests need to be incorporated into MLS photo rules. MLSs need to update their photo rules to serve the interests of all parties involved in real estate transactions just like the rest of their rules do. Doing so is simply in keeping with the MLS role as a real estate regulatory service.

Why is it better to have MLSs provide a standard photo licensing agreement than to have each photographer do their own? Because Realtors and managing brokers believe MLS forms and lawyers. MLS forms are used and trusted for every other part of the real estate transaction. There have been cases where Realtors have stopped using a particular professional photographer because the photographer would not use the licensing form provided by the MLS. Some managing brokers tell their agents they must use the MLS forms. Yet the particular MLS form is not in the interest of photographers.

It is time that MLSs start including professional photographers rights in the real estate transaction. This is not rocket science, all that needs to happen is MLSs need to acknowledge that professional photographers are frequently part of the real estate transaction!

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34 Responses to “An Open Letter To Multiple Listing Services Concerning Photo Rights”

  • Point 2 can be extended. The additional income derived from licensing images to clients beyond the listing agent/broker helps keep listing photography rates at a reasonable level. If entering into contracts has the likelihood of a photographer having to compete with their own works for these additional opportunities, they may opt out of the genre or be forced to shift professions all together. In this extreme case, agents/brokers will have to fall back on marketing a product typically selling for hundreds of thousands of dollars with their standard blurry, orange images. The remedy is for the agents to spend hundreds of hours learning a craft that may hold no interest for them and invest thousands of dollars in cameras and software.

    Just as a GP doctor would refer a difficult case to a specialist, it would also be prudent for the legal counsel of a MLS to reach out to an attorney that specializes in Intellectual Property law and to consult a group of professional photographers practicing in the architectural and listing fields. Many of the overly broad licensing contracts that photographers are being asked to sign have the air of a boilerplate document. Unfortunately in this day and age, these sorts of problems are becoming more common as attorneys comb the web for existing verbiage and repositories of standard forms are more consolidated. Specialists are not consulted and poorly crafted instruments become “standard” simply because it’s the cheapest and easiest route to take.

    Professional photographers that provide their clients with a written licensing agreement generally include all of the usages that are likely to be needed for the marketing of a property and allowances for an agent/broker to further use the images to market themselves. Like most creative professionals, photographers are not in the business of setting up their clients with contractual booby traps so they can sue them in the future. On the contrary, photographers prefer to see their clients’ businesses grow and do so for the most understandable of reasons, enlightened self interest. The more money a client makes and the more upmarket they go, the more opportunities there will be for a photographer that provides a good product and great service.

    Photographers that have committed to their profession as a career for the long term are the ones that will be the most protective of the rights to their work. Others that are simply using photography as a temporary job and have not real interest in the craft other than a paycheck will be the most likely to cheerfully sign away control of their work. The question for MLS’s is how motivated are they to craft guidelines that promote the availability of professional photo service providers to help their best and brightest members rise to the top of an extremely competitive industry?

  • I sell agents on the idea that if they bring in enough other clients for a particular home, they may wind up with enough commission to receive the images they need for no cost. There is no reason why they might not even make a couple of bucks on the deal.

  • I have recently dealt with this with agents wanting to sell my photos to another agent that is taking over the listing and realized that it is time to create a very clear “terms of service” statement. I would love to see some examples that other photographers have that I can model mine after. If anyone is willing to post a link to theirs, I would greatly appreciate it!

  • I am just starting out in Real Estate Photography, and I also work for an agent. I recently saw photos that a photographer friend of mine took on another listing in the same building. The agent flat out told me that, once they are in MLS, they belong to MLS. I was flabbergasted and tried to advise her that this was not this issue, that the photographs were paid for, therefore they belong to the agent and the photographer who shot them, but she was adamant, that if they went onto MLS, anyone can grab them and use them.

  • In addition, once the listing is syndicated, each syndicator claims copyright of the images. I am surprised Zillow and Trulia haven’t sued each other for images that are owned by the photographer as content creator. It is indeed a hot mess.

  • Offering a solution would be a good approach. Is there an MLS that has researched this and come up with language that works for everyone that could become a model?

  • Ok, how does one deal with the situation of an agent selling their tour & images to another agent, who is now the new listing agent?
    If the photographer was paid to photograph a property, but now has to change the information on the tour to reflect the new agents contact info, shouldn’t he or she be compensated again in a way of a “transfer fee”? if so, what would my fellow photographers suggest?

  • Copyright protection exists regardless of what an MLS does or does not do. If copyright is breached it is breached by whoever uses the photographs without permission or licence. The Realtor who commissioned the photographs is licensed to use them on the MLS. If a third party lifts the photos and uses them without licence the third party is liable for breach of copyright. The MLS is no more and no less than a method of licensed publication. There is no need for the MLS to govern the contractual relationship between a photographer and a Realtor. Rather than attempt to strengthen the MLSs interference it should be removed entirely. The MLS is not a party to the contract and has no business getting involved. The MLS should require the Realtor to confirm he/she has rights to publish the photos and that’s all. Realtors are governed by a Code of Ethics – if a Realtor breaches copyright by unlicensed use then the Realtor is in breach of the Code of Ethics and a complaint can be lodged as well as other civil remedies.

  • @Randy – yup, that’s exactly what I’m doing… creating a license agreement that I think will work for everyone. The first cut will be in my soon to be released update to my Business of Real Estate Photography book.

    @Eric – First, you train your clients to understand that the photos and tour are not theirs to sell. You are licensing the photos and tour to them just for their listing of the property. If another listing agent takes over the listing it is YOUR choice to sell the photos to the new listing agent… not theirs!

    @Chris – Yes, you are right we could ignore the MLS. That’s how things work for the most part now. Most MLSs claim that when photos are uploaded to the MLS the copyright is transferred to the MLS which is total BS! I don’t think it is unreasonable to expect that MLSs behave rationally because they are at the center of real estate transactions… agents depend on the MLS for legal advice and now they are getting pure BS from them!

  • Finally!
    This has been a long simmering issue that really needs to be addressed. In todays world of free for all, the future of copyright is under constant attack.

    If, as a “professional real estate photographer”, you are not licensing the use your images (as opposed to simply giving them to the realtor), you are not only doing yourself a disfavor, but quite frankly undermining the entire industry. If you put no value on what you create, why should your clients?

    Having looked at this group over the past 7-8 years or so, I marvel at how the level of photographic quality has sky rocketed. As a whole, it went from people snapping pictures of houses for some extra bucks, to a whole new level of truly professional real estate photographers operating a quality levels on par with any other photographic specialty.

    Us talking about it here is a start, but won’t put any pressure on the various MLS systems out there. Perhaps it’s time to consider taking it to next level, and address issues like this, as a guild, or forming an association. I think that what will be needed, is to consider having somebody like Joel write each MLS association letters clarifying copyright, and our position on this, as well as getting the National Board of Realtors involved to explain to their members what they can and can not do.

    It is high time to elevate the entire business to not only command some respect and establishes some professional standards and practices, but also presents more of a unified front of how we as a group operate.

    There are several associations out there like AIAP (which I belong to) , ASMP, APA, PPA, etc, but not one that is strictly focused on Real Estate Photography. Many of these associations have successfully effected changes needed for its members when it come to copyright, or specific business practices.

    MLS, Zillow, Trulia, and others, present very specific challenges to us that need to be addressed unless we all want to simply let it continue as a race the bottom.

    Larry, let form a guild or association!

    @ Eric, for the past 12 years, I provide my realtor clients with a license that allows them to use the images for all customary marketing efforts like MLS, their own website, estate magazine, news papers, etc. The length of the license is limited to the duration of the listing agreement, and specifically excludes any sharing, sub-licensing, or re-selling of the images to any 3rd party, including any other real estate agent. I as the photographer own the copyright, and only I can authorize any other use.

    Typically, I do not let a new agent use the same images, unless the house has resold and there is now a new owner wanting to sell it. If so, the new agent can license the images, provided that they supply me with a property release from the current property owner.

    I will only let a new agent of an expired listing buy a license, if the old agent agrees. I then typically credit back half of the new license fee to the old agent which has proven to be greatly appreciated by the old agent.

  • Larry,

    You hit the nail on the head. It is the wild west of licensing and copyright with MLS and agents and its not the agents fault, they are just confused by the lack of direction and straight forward information. MLS does not help.

    Thank you,

    Ethan

  • @Chris – AFAIK, the local MLS is a part of the local real estate association. The MLS’s are not necessarily mandating that these contracts are used, but are offering them to their membership and suggesting their use to “protect their members from malicious lawsuits.” The manner in which a broker is presenting the contracts to photographers might be leading to much misinformation. One brokerage stated that it was “for insurance purposes.” Either the broker has fabricated a weak lie or doesn’t understand the matter. The rules and reg’s I have read from MLS’s regarding copyright issues are clear that the images being posted must have permission from the copyright holder.

    @Jacqui – You may want to keep working on getting this misinformed agent to understand that she may cost herself thousands of dollars by not knowing the truth. I have a very informal blog post on my website that talks about copyright and links at the bottom for further information. If she ever reuses (steals) an image she finds on the MLS and gets contacted by the photographer, her attitude may force the photographer to refer the issue to an attorney. Beyond the legal ramifications, if an infringement or DMCA notice is sent to the MLS, she may receive a warning, fine and possibly be suspended. There are plenty of people that think just because something is on the internet that it’s “Public Domain” and free to take without understanding what the term means.

    @Thomas – The syndicated listing sites can claim a copyright on their compilation as it appears, but they can’t claim to own a copyright of the images. They will claim a license to use the images which is derived from the MLS, which claims a license to use the images posted and to syndicate the images for further use in property marketing as stated in their member agreements. I don’t think that any of the second tier listing sites such as Trulia, Zillow and Realtor.com are going to assert that they own the copyright on the images they are using. A competent legal staff would tell them that they don’t have a properly signed contract from the creator of the works and the best they can claim is a derived usage license that is on the thin side. As listings move out from the MLS and into the world of IDX feeds and syndication, the question of whether the assumption of being properly licensed is correct becomes more tangled. I am personally uneasy about the lack of control, but the syndication is in the spirit of my licensing agreement as it’s purpose is to market the home even if the site is using it to make money from advertising and information services. If I found one of my images being used in commercial advertising after being sold by a syndicated site, I’d be going after the friggen. While it’s unlikely that the low resolution images that are being used now on MLS’s would be useful in commercial advertising, there is no way to know if MLS’s will start allowing or requiring high resolution images in the near future.

    @George – The overall quality of images in some markets is top notch. The increased quality might be due to the ability to display high quality images. In the film and newspaper days, an agent could get prints made, but it was probably easier to just take prospective customers to the property for a showing. I will advocate at every chance for serious real estate photographers to join their local real estate association and be active on any committees that pertain to photography and contracts. At least, they should offer suggestions and advice to those that are making those decisions and formulating policies. By being a member, one will have access to the rosters of the committees and have the opportunity to talk with the proper people in person. Much better than being on the outside looking in. A Real Estate Photographers Association could be useful, but somebody would have to step up to form one and provide the funding to get it going. Isn’t there an architectural photographers association? Many photographers doing RE also cover architecture. It might make sense to invade an association with a similar focus and get them to expand their focus a bit.

  • An angle that I use to illustrate copyright ownership is to temporarily step away from photography as the primary subject. I address the text that they create as a narrative about the property and if another agent copy/paste to a new listing, they would go ballistic. Technically, that original text is covered by the same copyright laws, just as the author of a book or a photographer create. Generally speaking, Realtors tend to be more protective of their write up of the property than they are of the pictures they take – and by extension – have taken for them. Copy/paste the narrative is more taboo and they will file a complaint without blinking an eye if they see it.

    To a certain extent, I am a bit fortunate as my local MLS, in their rules, only copyright their compilation/reports which is appropriate. Additionally, they periodically run article/warnings on their “blog of the day” (flashes when signing on and have to physically close) concerning unauthorized use of photography. Plus, the respond to formal complaints, contacting the other party…with takedown and the ability to fine members, usually reserved for repeat offenses. That may be a model you would want to look at.

  • Would anyone care to share the license agreement you are using?

  • Question/clarification re property releases: in Larry’s first post, he mentioned the resale of images to architects, builders, etc – valuable to the photographer. My question is partly answered by the later comment that a different realtor selling same house at a later date must obtain property release from current home owners.
    So – it should be common practice for the photographer to get a property release from the home owners directly, even though commissioned by a realtor/builder to take said photos? Does one need to get an updated property release to continue using photos taken months earlier if the property changes hands?
    I do get releases granting me directly the use when taking other kinds of photos for advertising (portrait, lifestyle), but so far my property photography haas been commissioned by eg. construction companies to show off their work – they obtained permission from the home owners re photo use. I often have no contact with the home owners themselves. Sometimes the newly-constructed home has not yet been sold (so the owner is the construction firm or realtor).

  • As for copyright licences, follow this link for the AOP in the UK, could adapt for own use. I know the North American associations have similar though. See ‘terms and conditions’ http://www.the-aop.org/information/downloads/legal-business-forms

  • @Charlie – In the US it is not customary for the real estate photographer to get a release for the homeowner. The reason is the listing agent signs a listing agreement (contract) with the homeowner to market the property and the photographer in turn is hired by the agent to provide part of that marketing.

  • @ Larry

    RE: “The reason is the listing agent signs a listing agreement (contract) with the homeowner to market the property and the photographer in turn is hired by the agent to provide part of that marketing.”

    If that’s the case then I suggest the Realtor controls the copyright because all use of the photos is subject to the marketing authorization in the listing agreement and that agreement is between the Realtor and the owner. The right to use those photos in any way dies with the listing agreement unless specifically stated otherwise (unlikely).

    If the photographer wants to control the copyright then the photography agreement must be with the owner of the property.

  • A copyright for images is created when the image is fixed. In the case of a digital camera, it’s near enough to when the shutter button is pressed to make no difference. Unless the photographer is an employee of the real estate office or has executed a written Work-For-Hire agreement, the photographer is the owner of the copyright as the creator of the image. This would also hold true if somebody else owned the camera.

    An agent’s listing contract with a home owner is primarily to give exclusive marketing rights to the agent and to fix the percentage of the sale that the agent will collect when the home sells. The contract has no bearing on the images a photographer may create.

    Property releases are rarely required. When they are required, it is usually for very unique properties such as the Flatiron building, The Empire State building or the Transamerica building. For images being used to market a home I won’t worry a bit about having property releases. Even if you are licensing images to third parties, the home would need to be recognizable to the “average citizen” and convey a sense of endorsement by people or companies known to be associated with that property. Images of a famous home by Frank Lloyd Wright would merit releases, a middle class home in the suburbs would not. If a home owner recognized images of their home being used in an advertisement, they would have no legal interest in them. At most, the architect could make a claim, but, again, the design would have to be very unique.

    Even photographs might not qualify for a copyright. You can certainly register your images, but a photo of a white stucco wall will probably be denied copyright in a legal challenge. A rectangular living room with some windows and a fireplace is more complex, but nonetheless, so commonplace as to not merit a copyright. Your image of the standard living room will probably contain enough compositional elements to uphold a claim of copyright.

    I have never run across any cases where an interior design has had the protection of copyright. There have been a few cases that I have seen mentioned, but all of them lost. A good comparison might be taking a portrait of a businessman in a suit and getting a letter from Armani that you don’t have a release for the suit.

  • @ Ken

    RE: “A copyright for images is created when the image is fixed. ”

    That may be true for a landscape shot but I suggest that when you gain access to someones private home to photograph it you do so under the terms of an implied or explicit contract and the terms or understandings and representations of that contract, and the relationships between the parties, govern and restrict the copyright.

    Let’s say for example that an owner lists their property for marketing for sale, and the property is photographed for that purpose and then lets assume the property does not sell and the owner stays put – do you think the owner has a right to privacy that precludes use and publishing of those photographs for some other purpose in the future? If you say no, the owner has no such right then I hope you have a good lawyer to argue your case. If you say yes, the owner has that right and that expectation was there all along then you accept that the copyright is governed by the contract. If the contract was a listing agreement to which the photographer was not even a party then there is not much ground for the photographer to stand upon. I can quite easily see a homeowner becoming upset if the listing photos showed up in a gardening or home decor magazine and I can certainly see litigation arising from that. Which set of rights do you think would prevail in court – the rights of a third party photographer hired to create listing photos or the privacy rights of the homeowner who granted access for property marketing purposes only?

  • Its worth noting too that it doesn’t actually matter if you think you’re right here on a chat forum. What matters is if you are willing to litigate it in court. In the absence of a clearly worded contract between the parties to the matter it’s all just conjecture. Lawyers love conjecture – they can argue the various angles for years and bill you for it by the minute.

    If you have any notion of using the photos for anything more than the listing related marketing only, a clearly worded contract directly with the homeowner is the way to go and then everyone knows where they stand. If it’s just for the listing then the issue of copyright is moot anyway. The real question is not so much if you can win in court, which is never a slam-dunk, but it’s more about avoiding dispute and litigation to begin with. Litigation is very expensive.

  • Interesting and useful discussion thanks folks!
    I regard it as incontrovertible that the photographer holds copyright (as Ken explained) – hence the injustice of the MLS issue Larry describes (I’ll have to find out what the situation is here in UK).
    However, while holding copyright, permission to use seems less clear. I would assume (as Chris says above), that in order to resell the photos to third parties, the photographer would need a property release from the home owner (who might expect a cut of the proceeds!). That’s the case here in UK anyway, but imagine it’s the same in Nth America.

  • Thanks for posting this Larry. Perhaps we should create a list of photographers rights that should not be infringed on, as well as listing the terms an MLS would need to function in its normal capacity (as far as we know). Ideally we would work with the MLS’s and/or the Realtor association to find some across the board middle ground in terms. Perhaps Scott’s general RE license might be a starting point?

    *I would like to add that I think stripping/altering the metadata from our images should be prohibited and certain fields should be displayed with the images.

  • This would also be a good association to include in conversations: http://www.reso.org/rets

  • @Chris – I actually do have a good IP attorney and suggest that every photographer establish a relationship with one. Don’t use the internet for legal advice (and of course I’ll post the following useless advice that should only be used to generate good questions to ask your attorney that you have paid to be on your side).

    I do not agree with your assertion that a home owner would have any legal grounds to argue a case citing privacy. The photos would have been taken with the consent of the homeowner. In the absence of a written contract, the consent would be implied assuming the photographer didn’t break in and shoot the pictures. The images would have been taken with the purpose of displaying them publicly so no expectation of privacy exists. If the owner advertises their home for sale and does not sell if for whatever reason, public exhibition has been made of the photos further eroding any basis for a privacy complaint.

    Usage of a copyrighted image can only be restricted by a written and mutually signed contract in the absence of overriding law. Copyright gives the author exclusive control on how, when and where their images are used. Restrictions on usage only occur for images that contain recognizable people and where the image is primarily of a copyrighted or trademarked item where there isn’t additional contractual covenants. Those covenants cannot be implied, they must be explicit and in writing in most cases. I would have to run it by my attorney, but I would wager that entering into a photo contract with with a property owner would be more problematic that foregoing one.

    A homeowner that can find an attorney to bring a suit because they are unhappy with an image of their home showing up in a magazine, on a website or product packaging is not going to get that attorney to take the case on commission. If the advertisement or article doesn’t identify the street address or name of the homeowner, there is nothing that implies that the homeowner endorses the product or views of the writer. As the homeowner is not damaged by the images, there is no case. If a picture of a kitchen with some sausage cooking is used in an ad that reads “John Smith of 123 Main St, Anytown, USA loves Best Sausages and you will too.” Best Sausage company better have a release from John, but I don’t need one to license the image to them as the caption creates the damage, not the image. Granted, I might need an attorney to get me severed from the case if the homeowner’s attorney was overzealous in naming defendants. If I license the same image to the local appliance store to use in their advertisements without any reference to John Smith or the address of the house, there is no problem. I own the image and John Smith is not damaged. It is mostly held that the end user of the image is responsible for determining if their usage of an image requires a license.

    There is a pending case involving Getty Images, but it’s mostly to do with statements they made about where the image could be used. The case revolves around an image of a person and how a non-profit advocacy group used it in an PSA AIDS billboard. The non-profit should have hired people that knew better. Images of people nearly always need a release (since people (and corporations) can be damaged) and in the case of a sensitive health issue, that release must be specifically worded to cover the usage. Getty may have erred by making any statements about how the image could be used and simply stated that the image was or was not available with a model release leaving the customer to research whether they would get in trouble or not. This is why a contract may get a photographer in trouble where not having one would not.

    The listing agreement has no impact on the photographer no matter what is stated in the contract unless the photographer is made party to the contract and agrees to it by signing it. The RE agent cannot make any assurances to the homeowner about how photographs taken of the home by an independent company can or will be used. If the agent and photographer have an agreement, any breech would affect only the agent and photographer. There is a concatenation where the photographer gets in trouble if the homeowner first brings an action against the agent and there are indemnification terms that come back on the photographer from their contract with the agent. The moral of the story is to stay away from signing any contract with the agent and certainly not one with an indemnity clause that you haven’t had thoroughly reviewed with your attorney. If the homeowner wants to execute an agreement about restricting the usage of any photos you take, be sure your are dealing with the homeowner as the customer and not the agent and charge accordingly for a perpetual exclusive license.

    Yes, I have a considerable amount of experience working with contracts. The basic rule of thumb is if you are presented with one, it’s not in your favor. The longer the contract, the less of a chance you have of surviving against it in a legal action. Always use your own contracts whenever possible and walk away from anybody insisting on using theirs with no modifications. Don’t use or sign a contract for a paltry sum of money (small claims limits).

  • @Chris Kellison – I’ll second the retention of exif copyright data. It helps not only the photographer, but the agents and the MLS as well to show where the image might have originated from.

  • Ken

    Small claims limit here is $25,000. If you find that paltry then maybe you’re very rich 😉

    If everyone approached contracts using your rule of thumb one side or the other would always refuse to sign. A contract is not something to fear, it actually protects you.

    All I can say is good luck with all of that Ken but I don’t accept or agree with pretty much any of it. No doubt eventually it will be put to the strict test. I find what you are suggesting to be quite disconcerting. You seem to think you would have the right to enter onto a property, photograph anything and publish it anywhere when in fact you are there to produce listing photos. Consent to enter and take photos does NOT imply consent to do whatever you wish with them wherever you choose – two very separate issues not to be confused as same.

    If I look at what you are stating from the homeowner viewpoint it’s frankly bloody frightening.

  • @Chris – What country are you in? The small claims limit in California for individuals is $7,500 and $5k for businesses. I’m not sure if a sole proprietor would be considered a business or an individual. $25k?, not in any state I know of. And, yes, signing a contract with an indemnification clause could expose you to much more than even $25,000 in liability. $7,500 is the limit that can be asked for in California Small Claims court but a judge may find against you and award the plaintiff $1 or they may just dismiss the case as having no merit. The judge has a wide latitude in their decisions in Small Claims Court and if I remember correctly, there is no right of appeal. By not having a written contract an attorney for the plaintiff might recommend against filing in Municipal court given the costs and uncertainties of what a jury may decide and award. It becomes a “he said, she said” presentation. Filing and attorney’s fees are recoverable by the prevailing party in municipal court and are not in small claims. I’m writing with knowledge of US courts, not how the legal system works in any other country.

    I don’t find $7,500 paltry, but I do find it much less than the unlimited amount of liability that can be assumed when signed contracts contain indemnity clauses.

    A contract CAN protect you, but if the one you are signing is presented to you by the other party, it’s going to protect them a whole lot more, if not exclusively. That’s why I added a caution about somebody not being willing to negotiate what they present. I guarantee that my terms and conditions were written to my benefit, not the customer’s. I am NOT saying that every contract is bad, just that very few presented will have any sort of balance in the first draft.

    A judge will look to see if a plaintiff has been damaged in civil cases. Where no damages can be demonstrated, it’s unlikely that the plaintiff can perfect their case. “Implied” anything is hard to argue. A host might argue that I broke a confidence by relating that another guest at a dinner party was ill from too much drink. In the absence of any signed document or discussion about talking to the press, I may not feel that there wasn’t any covenant regarding what I might say to anybody not at the event. I may never get invited to another gathering by that host, but there wouldn’t be legal case unless I said something malicious and untrue. I can argue that by hiring my services and given common industry practice, there is implied consent for me, the copyright holder, to further license photos I take of the property. A property owner can ask me for an exclusive license to the images, but I will raise my price considerably. You were basing your statements on the premise that the homeowner would claim invasion of privacy and I believe I knocked that one down.

    Hopefully, we’ll get some input from other photographers that make some of their income from secondary licensing and what their approach is to contracts and releases. Has anybody had a property owner file suit or threaten to file suit over licensed images?

  • Hi Ken

    Invasion of privacy? No you didn’t knock that one down. You are invited onto the property to take photos for the purpose of marketing the listing. That is the expectation of the property owner and if you were to ask if they had any expectation beyond that when they invited you onto the property clearly they would say not. Obviously once on the property you could take photos of anything – absolutely anything. You could specifically photograph a valuable piece of fine art for example and sell that photo to a magazine in a manner that would be completely unexpected by the homeowner. You could photograph the security system and sell those photos. You could take detailed photographs of antiques or expensive vehicles – there’s so many examples of how the photographer’s access could be abused and then taken advantage of for profit in a manner the homeowner never imagined.

    The matter would revert to the purpose for which the photographer was given access and by whom because that is the essence of the contract express or implied Clearly the photographer is given access for a distinct purpose only and in most cases by the Realtor, who is bound by a code of ethics and fiduciary duty to protect the owner’s interests in ALL aspects of the services provided. Those ethics and fiduciary duties would be breached if the homeowner’s interests and property was abused. It is their home and they very much have rights attached to ownership including a right to privacy. A photographers access to take photos is limited to the purpose for which access is granted and anything beyond that must be negotiable and disclosable in advance.

    Where certain rights are breached damages are assumed as in Libel. The breach in this case is a breach of trust, fiduciary duty, privacy and the right to control publication of personal information in photographic form. It is also misrepresentation to enter upon a property ostensibly to take photographs for one purpose and then use them for another purpose. What you suggest borders on voyeurism to some extent and is similar in effect. Bottom line though it is morally and ethically offensive to assert that a real estate photographer has open access to the property to take and sell photographs for any purpose he or she chooses when certainly the homeowner never implicitly or expressly granted permission for such action and may have no inkling of the potential consequences . The homeowner simply thinks he is listing the property for sale and getting some photos done for the MLS You can be sure that is what the Realtor is saying. And the Realtor has a legal obligation to the homeowner for your actions while on the property.

    The fact that anyone even thinks of doing this is abhorrent to me and massively disrespectful of the homeowner in so many ways. Heads up Realtors – be careful what you are opening the door to when you let a photographer into your client’s house who has plans beyond the immediate task at hand.

  • ..and I’m in Canada – in BC and in Alberta and possibly elsewhere too the small claims limit is $25,000

    We also have a criminal offence called Mischief

    430. (1) Every one commits mischief who wilfully
    (a) destroys or damages property;
    (b) renders property dangerous, useless, inoperative or ineffective;
    (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
    (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

    Note: obstructs, interrupts or INTERFERES with the lawful use, enjoyment or operation of property.

    Lawful use and enjoyment of property includes an expectation and right to privacy which is explicitly enshrined in the “bundle of rights” associated with title. I suggest considerable caution in trampling on those rights and expectations beyond the clear and mutually understood confines and purposes for which a photographer was given access.

  • @ Chris
    Canadian copyright law is slightly different from US copyright law, and I’m no expert on it. But with regards to US law, what you’re saying is completely wrong on just about every point. Photographers have been working in private residences for many many decades, these issues were worked out long ago.

  • @ Scott – interested to know how those issues were resolved, what the situation is there. Probably different here in UK, but will provide something to compare.
    Anyone:
    I’m starting to shoot video (along with a couple of still images) for homes/architecture. This article…
    http://fstoppers.com/photography-clients-are-still-willing-to-pay-a-premium-for-unique-work
    …discusses, that while the realtor may not be willing to pay a 4-figure sum (which might eat into their % fee too much), the owner of a $multi-million home would be. So the suggestion is that the home owner pay for the video. Wondering, if us photo/videographers wanted to sell it eg to the architect, construction firm… anyone done this? Would you reach an agreement with the home owner to share proceeds from sale to third parties? Would be a fast-talking videographer who can sell the video to a home owner AND get a property release…

  • @ Scott

    I doubt it. I know photographers have been working in residences for many decades. I just didn;t know that lying about the purpse you’re there is considered good business practice.

  • As I am doing my CE for my real estate license on Online Risk, I have been directed to this pdf online regarding copyright basics. Just in case anyone is interested.

    http://www.copyright.gov/circs/circ01.pdf

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