Real Estate Photographers Must Educate Their Clients About Photo Licensing

December 19th, 2014

CustomerTraining

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.

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64 Responses to “Real Estate Photographers Must Educate Their Clients About Photo Licensing”

  • While not intending this as an endorsement, just transitioned delivery from Dropbox to Zenfolio. While there are several things I like, in particular, it requires license agreement acceptance for downloaded files in the ‘shopping cart’. Didn’t like the 4 default provided so created one for Real Estate, which is based off the one provided by Larry elsewhere on this site. Disabled the default “download” as full size only and so large MLS rejects them so created a “price list” with different size downloads. Obviously, those downloads are free since pre-paid, but also added ability to order prints, including photo books as gifts to their client and suggesting a custom “thank you, ask for referral” page in the back as they are less likely to throw it out vs other trinkets and trash marketing products as this represents memories.

    @ Stephen. I wouldn’t say my “customers view me as a thief.” Rather, they view me more as a hero as I support them by following up with the other person who misused the photos that they paid for. As far as my customers misusing, that is virtually impossible as my license agreement is somewhat liberal allowing use beyond the limited marketing of the home. Specifically, I allow them for their professional business development activites – it is just when others do the same business development with the photos that it becomes an issue. Reason for the expanded use? If they land a new listing by including, touting and standing out in their listing presentation, I shoot the home. That’s a win-win.

    Aside from Realtors/Brokers being grossly misinformed about copyright, I demonstrate they don’t even know what to do with it when they have it. Ignoring the army of Realtor that take their own photos, virtually every Realtor writes the narrative for the property (some with less skill, “Call Me!”) that is an original work that they own the copyright too under the same Federal Copyright Law. The biggest problem is not the MLS or even syndications where it supports “marketing the home bringing buyers and sellers together” which is well within the scope of the license – using the photos to market the home. The problem is when they use the photos – for free – as the raw material in creating a new product. Zillow and Trulia are not alone, but examples of this. The new product the create is to sell zip codes and other areas to the realtors who essentially provided the underlying content for free. Worse, it borders on extortion when they approach the listing agent – buy this that you provided the data to and receive inquiries, or we sell it to your competitor.

  • The link below is mainly about music but it may give you all some insight into why more and more normally law abiding consumers are no longer respecting copyright laws. When a purse that costs $10 to produce is sold for $2000 you know something’s got to give. Just as if a photo that costs nothing to copy is priced at or near the price of the original, something’s got to give. The enlightened find ways to turn lemons into lemonade. The small minded see themselves as victims and look to Big Brother to come to the rescue. Who would you rather be?

    https://www.insightcommunity.com/step2/311/why-i-pirate-an-open-letter-to-content-creators

  • @Stephen WOW, I was waiting for you to finally admit you’re true position on this is… I had a feeling based on what you had been posting, but you hadn’t come right out and said it. Thank You.

    “Look at all the millions people who pirate music. Are they all immoral thieves? I would say someone who pirates music views the copyright holder as the greedy thief. Even if the law, albeit an antiquated law, is on your side, why would you want your customer to view you as a thief?”

    Stephen, what is the legal definition of a thief…taking something that doesn’t belong to you…Doesn’t matter what I think, or you think or…., we ALL have to abide by the law…like it or not.

    I don’t know about the rest, but with your moral compass in such a state, that you can so easily disregard theft because it benefits you. I wouldn’t work for you for no amount of money. I would be afraid of what else you could easily justify to get ahead…

    ” I wouldn’t say my “customers view me as a thief.” Rather, they view me more as a hero as I support them by following up with the other person who misused the photos that they paid for. As far as my customers misusing,”

    That is easily backed up on here alone, by the number of posts regarding that exact sentiment…contrary to what you seem to think, agents don’t appreciate when another agent decides to “borrow” the images they paid to license…

    Just for reference, my TOS which is very similar to most it not all on here, states that the listing agent can use the images anyway they need to, to market the listing for as long as they have the listing. If they lose the listing, pray tell me, of what use to them are the images then. And why should agent B, simply be allowed to profit (steal) financially from what agent A paid for..?

  • “@ Stephen. I wouldn’t say my “customers view me as a thief.” Rather, they view me more as a hero as I support them by following up with the other person who misused the photos that they paid for.”

    I think you’re forgetting who’s really paying for the photos. The home seller. Do you think they would consider you a hero?

    This is a quote from an article I mentioned earlier. “Being an active file-sharer means I have a clearer picture than you do of what’s really happening. I know when I download something that it’s not a lost sale and it’s not theft. The fact that you can’t see that is not my issue. I’m not going to let you stop me from sailing the world just because you think the Earth is flat.”

    I have to agree that some of you guys don’t understand, “what’s really happening.” And while you may agree that the customer is king, you don’t recognize who your customer really is. You may get some solace by seeing yourself as a hero, but what good is that in reality? As the quote above says, “The fact that you can’t see that is not my issue.”

    You’ve got to find a way to make it a win-win situation because when your customer, your true customer loses, you inevitably lose too.

  • Again, and again, and again you’re forgetting who your customer really is. The homeowner whose house you used to create the product you sold to the agent who in turn charged the homeowner. Now you want a double dip. Sheesh!

  • I’m not sure it’s a good use of energy to address Stephen personally or talk about his personality. I’m sure a lot of RE agents feel pretty much the same as he does. Now that he’s told us how he really feels, we might be more prepared when dealing with someone with similar opinions. We’re better off knowing than not. Reaching agreement would be nice, but means almost nothing in a larger sense.

  • @Scott. “I’m sure a lot of RE agents feel pretty much the same as he does”…
    Is it they feel the same way, or they don’t know any better..?
    Ignorance of the law can be overcome through education. Blatant disregard of the law after one has been educated, is a whole different matter entirely. I can work with the former, do you really want to work with the latter..?
    I would rather not be guilty by association…but maybe that’s just me..

  • Hi Tim. You’re raising a lot of issues. I think we agree on everything you said. Hey, I don’t really know, but I’m guessing there a good number of people who will feel pretty much like Stephen does, even after we’ve made our best arguments. That seems pretty obvious. What the percent is, I don’t know. Fortunately, we can work with whomever we want. Guilty by association? Not sure what you mean there.

    I do think that anonymously posting Stephen’s personal information crosses the line. I think we’re better than that.

  • @Scott, I agree, posting someone’s personal info anyomously is both unnecessary and cowardly. We should be better than that.

    Guilty by association means if I am aware someone is knowingly breaking the law, and I still choose to work with them, then from an outsiders point of view, I am just as guilty, even if I don’t actually agree with what they are doing, and are not doing it myself.

  • Several observations:

    1. Copyright is a matter of law. The fact that “small” infringements might not garner a lot of money and thus be worth pursuing in court does not mean that one should never enforce one’s intellectual property rights. Furthermore, at the very least, one can stop those who are infringing from continuing to do so through the DMCA takedown process. Also, members of organizations such as the NAR have an responsibility to their organization to honor the laws, and violation of the laws could lead an organization to impose penalties on one its members. So, even though it might not make financial sense to bring a lawsuit for copyright infringement in some instances, there may still be other avenues by which one can exert pressure to obtain just compensation for an infringement.

    2. As has been mentioned above, it is sometimes possible for photographers to make significant additional income relicensing photos shot for real estate listings, sometimes to other agents who are relisting the property, and sometimes to other parties. Thus, it can be quite worthwhile to take one’s intellectual property rights quite seriously.

    3. It appears that Stephen is in the business of teaching what he preaches. Thus, it would not be in his financial self interest for him to change is views. My guess is that Stephen, rather than educated his clients, is catering to their misconceptions.

    4. Stephen: “These Realtors really need to learn to do their own photos. Invest in a short lens. Learn lighting. It’s not exactly rocket science.” It depends upon whether or not realtors really need high-quality photos. If high quality photos are the goal, then I would say that, for the vast majority of real estate agents, creating those kinds of photos might as well be rocket science. Acquiring some decent equipment and learning a few techniques is only a very small part of achieving the goal of high quality. It requires knowledge of a wide range of photographic and digital-processing techniques, a lot of practice, a lot of time taking the shots and doing the digital processing, and, most of all, talent. If high quality photos are not required, then I think real estate agents can very well just take the photos with their cell phones and shouldn’t waste their time and money on training that they don’t need.

    By the way, I think that blog post to which Stephen linked above is badly written and the opinions that the author expresses are unsupported. In my opinion, it is just the rantings of some blowhard on the internet and provides no support for Stephen’s contentions.

  • I think that part of the problem is that there isn’t a lot of Copyright cases that go to court or even get filed with the courts. If you are contacted by a plaintiff’s attorney with accusations over the misuse of photos and contact your own attorney, they will probably recommend that you agree to a settlement as quickly as possible. Most of these settlements have non-disclosure clauses in them, so again, one doesn’t hear about them. If a defendant decides to let the matter go to court, the awards start around $10,000 plus court fees and plaintiff’s attorney’s fees if they lose. (assuming the images have been registered). At the very least, copyright complaints made to the agent’s MLS may result in fines or suspension according to MLS rules without any due process at all. An agent suspended from their local MLS is out of business. There are possibly some remedies to be had using the DMCA laws, but little is published about that from what I have seen.

    The MLS’s in my area do not REQUIRE that the agent own the copyright to the image. The requirement is that the agent either own the copyright or have permission to use the photos they are uploading to a listing. The license they receive from the photographer gives them that permission. At stated previously, if the agent doesn’t need the photos after the listing is sold or if they lose the contract, why should they own the copyright? I’m pretty generous and put a clause in my licensing that gives permission for the purchaser to use the images to market themselves. For brokers and offices I handle it a little differently.

    Another issue that comes up frequently is that a publisher can copyright the layout and appearance of a publication. Some people get confused when they see a copyright claim knowing that elements are copywrited (copywritten?) by somebody else. If I were to republish a page from Zillow, I would be infringing on their copyright for the page layout and also separately for the images to the owner of the images. Zillow would be asserting their rights if they sued me even though they don’t own elements of the composition.

    Staying out of copyright trouble is very simple. If you didn’t create the images and don’t have permission from the person or organization that did, don’t use them. Take your own photos if you want to represent yourself as a budget operation or work with a professional photographer that will give you the license you need if you want to appear as an upscale operation.

    Stephen, The “really is” customer is the one that calls me and pays my invoice. The owner of a property is very infrequently my client. The listing agent is usually my customer and all of my focus is on delivering quality service to that agent. If I do a good job and provide good value, the agent will call me for more work. I am unlikely to ever get repeat business from the property owner so I’m not concerned about them as much.

  • Why do I get the impression that no matter how much we explain the laws and penalties for copyright infringement, Stephen will just continue his ways until he is sued. Or someone he trained is sued. There will always be the Stephen’s of the world, is just unusual to have on come out openly at say so!

    I see Larry deleted the reference above to someone posting his info, but I get it each time he posts to the board via an email notification; along with a photo of him and his wife. SO, I guess he’s not totally hiding. I’m sure others do too.

  • Stephen,
    I will admit to being completely confused as to what your point is. Maybe you can help me understand where the problem lies.
    I make my living as a photographer. Following industry-standard practices, in place and widely followed since at least the 1960s, I license my images to my clients. My clients have included real estate agents, interior designers, architects, builders, and the owners/operators of buildings, to name just a few.

    All of them understand that they are getting a license to use the photos, much like the license they purchase from Microsoft, or Netflix, or Hertz Rent-a-car. They’re totally cool with that, because it’s much cheaper for them to only license the usage they actually need, rather than buying the photos outright for an exorbitant fee. Why buy the entire bus when you really only need a ticket to ride across town this afternoon?

    Once in a while, I encounter someone who doesn’t quite get this. Usually, it’s when a real estate agent has “gifted” a set of low-res photos to their homeowner client as a keepsake. I allow that under the terms of my license. But on a handful of occasions over the years, the homeowners have passed those photos on to either a contractor who worked on the house, or to a new real estate agent, or to a broker tasked with renting the property. None of those things was ever licensed — and so I’ve had to reach out to the new “user” of the photos and let them know. I tell them that if they’d like to use my photos (which are registered with the US Copyright Office), they can purchase a license, the cost of which is pegged to the amount of use they’re doing (more use = higher fee). This has come up for me maybe a dozen times in ten years. In every case, the third party has pretty quickly settled with me. I’ve only ever had to get into punitive charges once, and that was a particularly belligerent fellow who, like you, just didn’t want to acknowledge the facts. Once he called his lawyer, he settled in a matter of hours, because his lawyer confirmed that A) I was right, and B) he was actually being offered a fair deal.

    The other nine or so cases were resolved amicably.

    So I ask — what exactly is the problem here?

  • Talking with someone at a party last night. Individuals and other businesses frequently use his business’s images without permission. Clients sometimes will threaten to take their money elsewhere if they aren’t provided image files for free. Guess where he works — at a magazine! For me, it was a reminder of how commonly people to want your creative work for free, whether it’s RE, portraiture, or event photography… We content producers have to stay vigilant, end to keep our copyright registrations up to date.

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