December 19th, 2014
Aubrey recently asked the following question:
I’ve had cases many times where my clients use my photos improperly, maybe we could start a separate discussion about this. My experience hasn’t been a positive one. Example: I’ll take photos for an agent and for one reason or another the listing will switch to another agents without my knowledge. All of a sudden I see my photos being used by another agent when they didn’t pay for them. Should I consider speaking to them and letting them know those are my images and you need to pay for them? I’ve tried that before and it did NOT go over well. Lost 2 clients over it. Any suggestions?
The underlying problem is that most agents have little or no 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 not well understood by most agents. A real estate photographer in the Seattle area recently told me that he brought this subject up at a large real estate office meeting and none of the agents at the meeting, including the managing broker understood that the photographer owns the copyright to the photos.
The solution is real estate photographers must educate their clients in this area. It’s better to educate them up front before problems occur than to wait until problems occur.
I recommend that real estate photographers at least 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 client and explain how photo licensing works and ask them to initial your terms of service. By having a written TOS and taking the time to explain it to all customers, you save a lot of potential confusion and misunderstandings. An even better solution is to have the client sign a photo licensing agreement for each shoot. I have and example of a photo license agreement written by copyright lawyer Joel Rothman, of Schneider Rothman, Intellectual Property Law Group in my Business of Real Estate Photography e-book.
Update 12-22-2014: As usual when we discuss real estate photograph copyright there is a huge amount of misunderstandings on the subject of copyright. Much if this misunderstanding is generated by the fact that many MLSs rules around the US are flat wrong in the area of copyright. For example, copyright is NOT transferred to agents OR MLSs unless the photographers sign a written document to transfer copyright. Back in January of this year we asked Joel Rothman and Steve Schlackman both Intellectual Property Attorneys in Florida to clear up these issues for real estate photographers and here is the PFRE post that refers to their explanations. These are legal opinions on this subject. Also of interest is the ongoing class action suit that is going on against the main supplier of MLS software.