Can Agent Clients Submit Your Photos To Large National Magazines?

March 9th, 2015

TermsOfServiceCraig recently ask the following question:

I have an agent/client who says she’s going to try to submit some of my photos to a large national magazine.

First of all, is it even possible that these magazines take submissions or do they contract their own photographers and have specific projects for those in-house shooters?

Also, if this is possible, what kind of compensation are we looking at? Do they pay if it’s a small blurb or just cite you as the photographer? If your photos were to be featured, what then?

You as the copyright owner, get to make the rules. What does your licensing agreement say? With a typical real estate photographers licensing agreement the agent is licensed to use the listing photos to promote the listing on the web and print media. Many national magazines promote current listings particularly if they are very high-end or owned by celebrities.

Here is a recent example in Forbes magazine. The photos in this Forbes article were shot by Ethan Tweedie, on the Big Island (the 2013 PFRE photographer of the year).  Ethan says that the listing agent did a press release for the listing and the usage by Forbes falls into marketing of the property via web and print which is covered by the licensing agreement that he has with the agent. In other words, Ethan was paid by the listing agent and not Forbes. But both Ethan and the listing agent got a lot of great exposure from the Forbes article.

This is not to say that there couldn’t be some other additional usage of your images that the you could license one or more other parties, besides the listing agent, to use.

So in summary, you can’t expect to get paid again for the photos unless the use by the magazine is outside the use that you licensed the agent for.

Oh, yeah, I’m not a lawyer and this is NOT legal advise.

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17 Responses to “Can Agent Clients Submit Your Photos To Large National Magazines?”

  • As long as it is only for the purpose of selling the property, then yes, my license includes it. If it is for the purpose of promoting the agent or their company, then no.

  • Larry is pretty spot on with his advice!

    You, the photographer, have and maintain absolute control and copyright over the use of your photographs. That really does mean everything. You’re granting what is commonly known as limited use.

    For example, if you grant your client permission to use the photos for marketing and advertising, you’ve basically given them free reign short of selling them.

    On the flip side, you could load your permissions and licensing with all sorts of verbage about limitations, use, purpose, time frame, etc.

    For real estate, you can usually keep it basic as the nature and demand for the work product is of a fleeting nature. Excluding high end homes, agent specific marketing efforts and self promo, most of these photos hold little value after the sale.

  • I just had Realtor.com publish one of my projects as a feature article. Since the work was already syndicated to the publication I thought the idea was great, but the realtor was silent on the issue. I think this is a win win.

    Thoughts?

    http://www.realtor.com/news/modest-3-bedroom-log-cabin-11000-acres-california-land/

    Steve

  • If the usage clearly involves promoting the property for sale or lease, then that falls under my standard usage terms for real estate marketing photography. If not, then a separate license and license fee would be required. My license terms are specified in my information sheet about my services and on every invoice.

  • My standard license for RE photography grants the purchaser the rights to use the images to market the property and for use in advertising themselves. Magazines usually have a lag time of 2+ months between when they get materials/stories and the time the magazine is made available, so unless the property is still on the market when the magazine is published, that clause won’t be operative. If the article is a profile of the agent, I would consider the usage to fall under my licensing terms although I would ask that a photo credit is given in the form ©2015 Kenneth Brown, http://www.kennethbrown.pro.

    Any other use, such as the images being used to advertise an agent’s national franchise or local office would require additional licensing.

    I just had an agent ask me over the weekend if they could give images they licensed from me to their broker for an ad campaign. I told her that it would violate the licensing agreement, but I would pay her a commission on any sale I made to her office. I haven’t heard anything back. I’m hoping that offering the commission will make her think she is better off referring the broker to me rather than giving the images away. She’s the only agent in the office that uses a professional photographer, so the broker isn’t likely to ask for photos from any of the other agents.

    Even after agent’s have had videos deleted from YouTube for using music they didn’t license, they don’t stop to think that other forms of media may come with limitations. I know they won’t get anywhere by complaining that since they bought the digital download they can do whatever they wan’t with the music. I guess they didn’t read the fine print before they clicked “I agree” when they signed up. Did they think that Microsoft only paid $15.99 for a CD when they used “Start Me Up” by the Rolling Stones for a Windows campaign?

  • I shot several nicer listings last year, including some Bernoudy homes and a very cool Ralph Fournier ranch.

    Several times I saw my photos on Facebook ads for Houzz.com, Elle Decor, curbed.com and other magazines – upon further research it was evident that these magazines had copied the photos from MLS listings – they all had MARIS watermarks.

    When I inquired to the magazine editors and “writers” of the articles I was told that they felt it was fine to use the photos as they found them on “publicly accessible websites”… I found it very frustrating that I had to explain to them that they were using my photos, not something just publicly accessible, for their own gain. Of course, they always offered to credit me (after thousands of views) but state they have no budget for photography. One mention of the Digital Millennium Copyright Act and they say yes they are aware of it and *poof* the article is gone.

    I noticed there were hundreds of similar articles on these magazine sites with only few photo credits. You may want to look around to see if your own high end listings are appearing without your permission.

  • As Ken noted, “my standard license for RE photography grants the purchaser the rights to use the images to market the property and for use in advertising themselves.” I do likewise as I see no advantage in separating the two. The way I look at it…promote yourself all day long…get those new listing…ah, er, my future business. Realistically, who is going to be shooting those home that they use your photos as reference of past listings to get the new listing.

  • Ok…newbie here…I am just tip toeing into real estate photography. I have never even thought about whose property the photos are. So when I am paid to shoot a listing, and then give the images to the realtor who bought them….are the pics mine or theirs? Can I still use the images on my website/fb/instagram pages? Am I supposed to have a property contract for each listing…or each client? AAHHH…why haven’t I thought of this!

  • I had an interesting interaction with a possible client. She wanted me to take pictures of her spa business so she could have her own to use. Previously, she had just copied pictures from the web. Here’s the interesting part. She got an invoice from Getty for use of the images she had copied, and she paid the invoice! There was no “please remove” step, no “excuse me, I think you used my image” step. Can’t we just bill people who use our images?

    Also, sorry if this has been gone over already, but it’s cheap and easy to copyright images. Once copyrighted, legal presumption is in your favor and you can get a legal ruling in your favor without even going to court. I am not a lawyer and this is not legal advice.

    Seem like one could send a batch of images to the copyright office every 3 months or so, let clients know the images are copyrighted, and send a bill to illegal users. What do you think?

  • @Reed, magazines and larger websites certainly know that they are stealing your images and will feed you the line about them being “publicly accessible” or “public domain” since it will put off any legal claims nearly 100% of the time. Small time bloggers might not know, but that doesn’t excuse them their ignorance.

    @Heather, you own the copyright from the moment you push the shutter button and the image is written to a memory card. You don’t even have to be using your own equipment. It’s a good idea to give your customers a written paragraph or two outlining the terms of the license that you are granting them. It’s a common business practice in creative arts to base pricing on the usage the creation will be put to. Check out Jack Rezniki and Ed Greenberg’s presentation on copyright that did at BH Photo . There are others by them that you can find. Ed is an IP attorney in NY that specializes in copyright and Jack is a professional photographer.

    @Scott, you have the copyright as soon as you push the shutter button and that same copyright covers and derivative works you make on the image (retouching, compositing, etc). You are thinking of Copyright Registration which is a great idea since one can’t recover attorney’s fees and is only allowed actual damages. Who would want to go to Federal Court for a measly $200? Since most photographers don’t register their work and publishers know this, they feel pretty safe ripping off whatever they like since at most they might only have to cough up a few hundred dollars a couple of times a year.

    All of the attorneys I have heard speak on the subject emphatically stress that it’s a bad move to send an invoice to an infringer. Your best move is to register all of your images since, like you mentioned, it’s not expensive to do every 85 days (90 days is the time limit for published images). Establish a relationship with an attorney that specializes in copyright and let them send out the demand letters with their fees tacked on for the service. They’ll probably have an office assistant do most of the work (filling out a form letter), so for them, it’s just like printing money. Just find an attorney that will handle the work on contingency. There is no reason why they shouldn’t.

  • Interesting, but I refer you to a couple of publications and an organization:
    “Professional Business Practices in Photography” – Published by ASMP
    “Best Business Practices for Photographers” – John Harrington
    http://www.ASMP.org

    These books are readily available on Amazon and if you join ASMP you can get their book for free.
    Read through the copyright and Licensing sections and you will find your answer.

  • @Ken. Yes, I was talking about registering copyright. (Copyright is automatic, as you say.) Google calendar can do reminders every 12 weeks. I just added “copyright registration” to my calendar. Curious, I wonder why the consensus is that sending the invoice is a bad idea, since that apparently is what Getty does? Attaching an attorney fee seems a little harsh. Getty says their goal is to bring people into compliance, rather than to punish them, and I like the sound of that. Anyway, dealing directly with the re-publishing infringer hopefully will take the original client out of the loop and perhaps preserve that relationship. Dialing down the punitive aspect might also help preserve the relationship with the original client. Just thinking out loud.

  • I lost a good client because he wanted to use listing photos (that I shot) on his wife’s Interior Design website. I tried negotiating a higher fee on future shoots for the increased usage. He stopped calling. Same thing happened with a small local architect who wanted to give the photos of a project to his client for their promotion. Sometimes principals cost :-).

  • @Scott, if you send an invoice, you are affixing a price to the work. While you might charge $100 for an image used in local advertising, would you charge the same $100 if you knew the buyer was going to use it worldwide? How do you know that they haven’t already? An attorney is going to send a letter demanding that the infringer identify where they have used the image and if they lie, it changes any legal action or settlement negotiation amount way up. If an attorney wanted to charge more than $100 to send a letter, I would agree with you, but I see no problem in requiring a higher payment from a thief. There is no good way to track every image you have out in public, so it’s right and proper to require more than what your standard fee would have been on the occasions you find your images being used without a license. You need to know to what extent the infringed image has been used to know how much to ask for.

    @Jon May, RE photography is one of the lowest price/image genres in photography. The upside is that there is a much larger market than some like weddings since you can get RE work every day of the week. It sucks to lose clients as getting a new client is much more work than retaining an existing one. Analogy with the music business can often work well. If you go to a concert, the band is not going to let you video tape the performance so your wife can see it later because you could only budget for one ticket.

    Were you doing a lot of business with these two clients? I’ve shot a couple of jobs that were a mix of Listing images and interior design pictures. The agent got a commission for the referral applied as a credit on their invoice and the interior designer received images tailored to her needs (and paid more for her usage license). Your images have value. It’s taken time to learn your craft, money to purchase equipment and there was a certain cost to creating the images that these people want to use. Several photographers that post here encourage doing your best work on every job so it’s obvious to your customers that they are not going to be able to get comparable work from a less expensive photographer and they have no hope in making the images themselves with an iPad. Secondary licensing of your images can be a very healthy addition to your annual income so there is no sense in throwing that opportunity away. Be patient and see if the agent and the architect come back to you in due time. If you give good service and make good images, there is an excellent chance that they will be back.

  • There’s an elephant in this room that no one seems to have noticed…

    If we’re going to sell real estate photographs beyond the scope of their originally intened purpose (to sell the property and market agents), it’s highly advisable that you obtain a property release from the owner(s). Believe this… the property release should also include verbage that will cover items within the photos such family photos, handmade crafts, expensive boats with names, etc.

    Or, quit sweating the small stuff and whip out your attorney only when it really matters.

    If better homes uses my work without permission, I’m calling them to say thanks and offering up more work as a new revenue stream. If they say no, then say hello to my little friend the copyright attorney. But I don’t like working that way and neither should you.

    I’m more inclined to think they’ll hire me to stave off bad pr, avoid litigation and bebefit from a genuinely nice relationship with an even nicer photographer.

  • @ Dean. Wow. I never heard of a property release before. Dan Heller says it’s all a big misunderstanding (the term “property” refers to trademark property, not buildings or parcels of land), so don’t waste your time getting property releases. http://danheller.blogspot.com/2011/09/busting-myths-about-model-releases.html.
    ASMP says they have never heard of anyone being litigated over a missing property release, but get the form anyway because you never know. https://asmp.org/tutorials/using-property-releases.html#.VP-rhPnF-So.
    I wonder. If property releases were necessary, wouldn’t we need them for the initial shoot, too?

  • @ Scott… I’m not talking about the standard re photos being used in the standard context (to sell an active listing). I referenced the use of re photos beyond that scope… which many times will absolutely require the use of a release from the owner of that property. You might want to discuss this with your attorney 🙂

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