Is There Any Way of Making Sure Your Real Estate Photos Are Not Being Used Without Your Permission?

June 14th, 2015

302151-residential-95f2je-oLast week Russell asked:

Today I got a call to shoot a listing, which by chance I had already shot several months ago. It turned out that this home had been completely remodeled by a “flipper”, so it would indeed need to be re-shot.

This got me thinking about a couple things:
1) What is a “standard” charge for licensing of images after the home sells and is back on the market? (assuming nothing has changed and doesn’t require a re-shoot)

2) Short of “web surfing” location addresses for a sale, does anyone have a way of making sure their images are not being reused by another agent?

Charge For Image Reuse:
My take on a reuse charge is to charge the same for every licensing of the same images. Or if this bothers you charge slightly less since you don’t have to make another trip to the property. What do others charge for reusing images?

How To Find Illegal Uses Of Your Real Estate Images:
There’s good news and bad news on this one. The good news is you can just google the address of a current or past listing to find almost all real estate uses of your images. For example, my wife and I sold a rental property in January of 2012. So if I google “7318 Fairway Ave, Snoqualmie, WA” I find that long after the sale closed my listing images are still all over the net. Zillow.com is using all of them, Movoto.com has all of them, Realtor.com has just the front exterior, Ziprealty.com has all of them, Joyce Lowe, a Seattle Realtor, has the front exterior photo on her site and Landcast.com has the exterior shot. So if a new listing agent were to list this property, it would take about 10 minutes to get a set of listing photos for free from Zillow.com or Movoto.com that shows this property as it was in 2012. If you do this same search while the property is on the market you’d, of course, find every site  that the images were being used. I’ve checked a few listings that I’ve shot for local Realtors here in Oregon within the last year and found some sold listings with all my photos on Redfin, but not Zillow.com. I can’t find any consistent pattern to which sites keep photos after the sale, but there are many sites that do. There seems to be more sites that think they can just keep the front exterior shot. MLSs frequently claim they can use the front exterior shot forever so MLS rules are probably at the root of this widespread use of front exterior shots. Also, my local MLS says it can “retain and  disseminate photos in perpetuity.” My guess is that other sites are similar.

I also used tineye.com and google image search to find photos for our Snoqualmie, WA listing. Tineye didn’t find any of these issues I describe above and google image search found some of the photos.

The bad news is, it’s going to be very difficult to identify whether the photos you find for a given listing you’ve shot in an infringer or not because typically only the agent’s broker site and perhaps a public MLS site will show who the real listing agent for the listing is. I’m not even sure if all these sites that keep photos after a sale is closed is a copyright infringement. It certainly facilitates future listing agents using the photos without permission.

I asked Joel Rothman, a PFRE reader and contributor, who is an intellectual property attorney in Florida who specializes in real estate and MLS related law where are the legal lines on sites using your photos in perpetuity? Joel said he will write something on this, so that will be the subject of a future PFRE blog post. Joel says it’s not a simple issue. More on that later.

Conclusion:
It’s quite easy to find listing photos that you’ve shot for any given address either while it’s on the market or after it’s been on the market. Then what are you going to do from there? And how much time and energy will this take? You may, or may not, be able to identify if the listing agent using the photos is different than the agent you licensed to use the photos. My guess is that for the amount of effort you’ll spend searching for infringers, your time would be better spent training your clients about photo licensing and making sure you have a signed license agreement.

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12 Responses to “Is There Any Way of Making Sure Your Real Estate Photos Are Not Being Used Without Your Permission?”

  • My problem is a bit different. One of our agents pays for a shoot & loses the listing. Another agent hires us to shoot the same house. Now, we feel ethically, we have to explain we have shot the home and have the shots but cannot use them without the permission of the “Paying” agent.

    Both time the new agent chose to pay for the “New” shoot rather than negotiate and pay the 1st agent. Just adding a new twist.

    If it happens, always explain that the “Paying” agent “Owns” the license to the photos.

  • My plain english copyright agreement that is issued with each shoot clearly states that its for the single sale of the property, it also clearly outlines how I work out who has paid for the images and who has copyright to use them. Eg Agent or Owner or a mix of both, I also get realestate.com.au listing alerts which send me a list of every property listed each day in my area, that way I can see if any of my images are being mis used, what other agents/photographers are producing and whats happening in my local market place. I have made alot of phone calls over the years reminding agents about copyright they always take the images down, but I wish the Real Estate Institute of Queensland would teach Copyright Law to all its agents as its a legal issue they seem happy to turn a blind eye to when it suits them.

  • I agree with Larry and how he points out the reality of the situation. This is after all a business and if you are spending a lot of time, effort and money to keep track of your photos, then your resources are not being used efficiently. Time is better spent informing you clients of their usage rights and limitations.

    You might want to draft a ““cease and desist letter, also known as “infringement letter” or “demand letter,” it is a document sent to an individual or business to halt purportedly-unlawful activity””. This document, ready to go by just filling in the offender’s name, is something we send out to the few agents that are playing games. We also cc a copy to the mls and in this area they usually take it seriously and will follow up with the offending agent.

    Not sure hoe Tom E is running his business, but my terms and conditions state clearly that at no time does the agent own the photos taken, only the usage rights to use them for the duration that they have the active listing. If another agent takes over the listing, they have the option to pay for the usage rights during the time they have the active listing. The advantages are that the listing photos are already done, ready to go and can be uploaded then and there. No appointments to make, hoping the clients have everything ready, no wasted time running back and forth to the property and then having to wait for the post processing and delivery.

    That said, I allow them to view the previous photos and make up their own mind if they want me to come back out and shoot the property again. Either way, they pay the same

  • Tom – obviously your answer is dependant on how your contact is written, but generally speaking most photographers limit the usage license for just the length of time the agent has the listing. If the agent looses the listing, they no longer have any license or right to the images. In fact, should they somehow regain the listing at another point in time in the future, they would still have to pay to get a new usage license. Normally a photographer is free to license the use of the images to another listing agent once the original license is defunct. Actually, depending on the contract, an agent might not have exclusive use of the images anyway. If there is no exclusive use language in the contract, then a photographer is free to license the use of an image to as many people/parties as they wish.

  • I understand that the Matrix MLS system in Ca., when uploading images, that it creates an MLS watermark. Once it is uploaded, another person who copied it, can not upload it in the MLS again.

  • First off, agent’s have absolutely no need to own photos. They are in the business of selling real estate not imagery. If they really believe they have to own it, they need to pay for that right. (3-5 times) Nobody ever does. Value your own work and Keep your copyright! Know your business (photography and licensing ) and let Realtors do theirs. (selling real estate) I have the same terms and conditions as Jerry Miller (above). I own © and the agent has a right to use them for the life of the listing. Sold or not. I have all rights and may relicense to other parties at my discretion. Same terms on my videos, but I will rework a standard type property video to match the new agent’s marketing approach. (new music, branding, verbiage etc.) I charge my current rates for the product and limited usage, which may be more than last year. This is a good approach for me for a few reasons; (1) I make more money for the additional usage of the marketing materials that I created and (2) The previous agent likes to know that their competition is NOT getting a discount on materials they had originally commissioned. Literally, everybody wins in some way. Licensing imagery is not something to feel bad about.

    Also, making your clients understand that your fees are for creating marketing visuals, rather than for an hourly rate (like a plumber, or other contractor) is an important distinction in helping them understand its real value and ultimately being able to charge for it. Of course, you have to believe it yourself too. Real Estate photography and video is marketing imagery and nothing less. Believe it.

  • I don’t worry about the real estate web sites that are displaying listing images even if they continue to show an image I have taken after the property has sold. It’s a fight with little to no reward. If an agent hands out copies or steps outside of the license you have granted, it could be politically advantageous to go gentle with them if they are a good customer.

    On the other hand, if an agent or office (non-customer) has copied an image that I made from the internet to adorn their web site without my permission, I will take action. What action I take will depend on the infringer. An agent or small office might only get a C&D letter (to start) where a nation-wide franchiser may receive an offer of settlement from my attorney. The national firm has a dedicated marketing and advertising department that knows they must have a license for each image they use where a small local office may not know better. My attorney is happy to take either case, but may take the case against the larger firm on contingency where pursuing the small office I will have to pay for up front. The “deep-pockets” principle coupled with being able to include the term “willful” in the official complaint makes a difference.

    Finding infringements worth trying to turn into revenue is hard work. If you do see one, remember that it’s common these days for large companies to just plain rip-off imagery they find online. A vanishing few photographers are likely to raise a fuss and even fewer will follow up their first letter. Send them an invoice? Bad idea. If you do take somebody to (federal) court, you have given them written evidence of the value you will accept. Remember that Copyright is Federal Law and cannot be heard in a small claims or municipal court. Let an attorney send them a settlement offer after finding out how much they have used that image. Attorney’s aren’t shy about asking for big money. Many attorneys are also very good at estimating the fatness of people’s wallets.

  • It might be easy to find the images using tineye or google image search, but very time consuming especially if you shoot thousands of images each year. Has anyone tried Digimarc Guardian for Images? Although their pro plan only offers up to 2000 images per year it may not be enough for most.

  • Hi Brian,
    Our Corporate policy is that once a person pays for photos those photos are theirs forever.
    They cannot, however, allow a Shower Company to use our photos. Our terms of service fit our needs fine.

    Terms of Service – Everitt Photo, the Contractor, grants you, The Client, a perpetual non-exclusive and non-transferable license to use the Images provided as a part of the tour, photos, or other services described in this invoice. This Royalty Free license to images may be used by the Client for an unlimited time frame. The images are licensed, not sold to you. The Client May Not sublicense, re-sell, rent, lend, assign, gift, distribute, or otherwise transfer or assign rights to the tour or I mages or remove any copyright, trademark or watermark from any place where it appears on the Images.
    The Client agrees that no license rights are granted to the Client by the Contractor until all payments are made in full. If you are acting as an agent for a client, you must inform your client/principal of the terms of this Agreement. Only Everitt Photo may license tours, tour images, photographs, video clips, print materials, and other Everitt Photo copyrighted materials

  • Thanks for posting that Tom. There is nothing wrong with giving perpetual usage to an agent IMHO. It is rare that an agent would lose and then regain a listing anyway.

    However, the document clearly states that the agent does not have exclusive use of the images. Therefore if an agent looses a listing and you have an opportunity to license the images to another listing agent, you are free to do so without having to get permission from the original agent.

  • What do you guys do if multiple agents are given the same listing at the same time (say because the seller is really keen to get the best exposure)? Would you say to the owner that all their agents could use the images for no extra cost or would you issue a license to each agent and charge each one accordingly even though you only shot the listing once? And I wonder how the original agent would feel about other agents having the same photos as them, or new agents not having unique photos? Do you find many asking for exclusivity or asking you to reshoot new images so they can offer something unique and different to their competitors?

  • First an owner can not list a property with several Realtors without a written agreement from the Realtors. The MLS can only place a listing of a property with one MLS number. I do not think that there is an option to list with several Agents at the same time.
    I only take pictures when the owner and a Realtor have an agreement.

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