Real Estate Photography Licensing For Rental Properties – How Should it Work?

June 30th, 2015

RentalLicensingCarlos recently posed a question on photo licensing that I don’t think we’ve talked about. His question is as follows:

My niche is the vacation rental market, mainly condos and I have one main client which sends me the majority of my jobs.

I have become aware that the client rental management company may be sold or bought out by another group in the near future and I know the sale of the client company will also include my property images as well (I’m sure the client company assumes the images are theirs to include with the sale of the company).

I’m wondering what should happen with my images. Should I enforce copyright and ask for a fee to sell the images along with the sale of the rental management company, or should I just let it be to not ‘rock the boat’ since this client is the majority of my small business revenue and I’m confident they will continue using my as their photographer. My inclination is the first, but I’m a bit at a loss as how to approach the owner/broker.

I know the images are key to the rental business model especially since most people book a rental after viewing the property images on the web. Unfortunately, there is no written agreement as far as terms of service or copyright terms of the images between me and the client company (which is my fault for not defining). Since these images are for rental listings they are used for long lengths of time, sometimes years. I know as the photographer I hold copyright and only license the images, but without defined terms I don’t think the client company will see it this way. My question is how would you or other PFRE members approach this situation?

On another note, I’m about to raise my pricing and will include terms service and copyright terms more specific to rental properties vs. for sale properties… any thoughts on this would be appreciated from PFRE community. I’m also wondering what insights the PFRE community may have about pricing PFRE for sale properties vs. PFRE for rentals properties.

Great questions! I’ll bet there are a bunch of photographers out there that shoot for rental management companies that are just like Carlos and don’t have a licensing agreement unique for rentals. None of the following is legal advice. There are really two parts to this:

  • What to do about transferring licensing to a new rental owner? Since you don’t have a licensing agreement with the current owner that is selling the rental property this is a great time to create a photo licensing agreement for rentals. The important issue is with the new owner. I would make it clear with the current owner that the photos are not his to give away. And you’ll want to negotiate with the new owner in such a way the you continue to get his photographic business in the future. Include some agreement for updating the properties. That is you could agree to charge less to license to the new owner photos that are already in use, than was charged to license to the original owner and include some level of updates to the properties. You need to build a solid relationship with the new owner.
  • What is the license pricing for rentals compared to home sale? As far as how much to charge for rental photo licensing in general. My guess is perhaps several times what you would charge for, for sale licensing. Rental photos are always used for years while for sale photos are used some times for a year but usually much less time. It may be the same amount of time to shoot the photos but for a rental they are used many times longer and thus more valuable.

I recommended that Carlos contact an attorney to help guide him through these issues. What are others experiences with rental marketing photo licensing?

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10 Responses to “Real Estate Photography Licensing For Rental Properties – How Should it Work?”

  • This is a sticky one.

    I try to look at things from my clients perspective as I feel like they are my friends.

    If I paid someone to come out and photograph something, and they did not inform me of any rules or restrictions I would feel odd when I wanted to transfer the photos to another project. This is where contracts come into play. Contracts make everything much easier, professional, courteous, fair, honest, just, descriptive, transparent ect. ect….

    If you had a contract you could simply, politely and professionally initiate a conversation that you would love to setup a pricing model for you to benefit from the sale and transfer of your work, that were and always are yours.

    It is not like they are selling the photos as prints at the farmers market. They are assuming that transferring the photos (in the exact same usage) to be used in the same way they originally thought of to use: To market said properties, is not that far fetched… and as a photographer I can safely say that they are not ridiculous for feeling that way. If i had hired someone that didn’t make me sign anything spelling out what I could and could not do with said work, I would assume they simply did not care. I am not taking a jab at you, I have been there and honestly still do that with certain clients and certain jobs that I just don’t have that much interest in.

    If this were me in this exact situation I would do this.

    1) change your process entirely tonight to eliminate this from ever being sticky again by including contracts into every single commission that you have any interest in.

    2) In the most professional way you can draw up, let everyone that matters know how happy you are to work with them, and would love to create a new license for said images and or provide your services for updated images. (I shoot rentals too, they have them redone twice a year, sometimes more as I am sure you know)

    3) Bend but don’t break on your new policy in regards to licensing. Everything is negotiable, unless you cannot come to any terms at all I suppose. If they demand use for free then you have a decision to make.

    Let them have it IF they agree to the revised terms in new work
    or
    start drafting up a cease and desist letter with your attorney when you start seeing your images being placed in new places without your permission. I don’t think you would remain in good standing with them if you proceed with the lawyer route.

  • You should be consulting with an attorney not photographers. It’s contract law and copyright law. Our opinion will be biased towards us but a good attorney will tell you what the deal really is.

  • Patrick is absolutely right. Given that you should be talking with an attorney, I will say that since you don’t have a WRITTEN contract spelling out the terms of a license to use the images, you will end up in a situation that will include the phrase “I assumed that…..” or “I thought that since I……” Not good.

    See if you can get the seller to introduce you to the buyers and let the buyers know that you hold the copyright to the images (after closing). A lot of the time, new buyers will do upgrades to the properties after they close the sales process and there may be an opportunity to sell a new set of photos where you can negotiate a written license that works for you and the customer. The existing photos could be a good sales tool in your favor. The last thing you want to do is pop up in the middle of the sale with demands that might sour the deal whereupon you will have both parties angry with you.

    It’s nearly a given that photos for a rental property are going to get reused or used for multiple years and you should take that into account when formulating a license. The owners and property managers are not going to keep track of their usage. They’re also not going to keep track of where any particular image has come from and are going to mix your professional images along side horrible cell phone images in their marketing most of the time. You may want to base your pricing on the size of the complex and how many units there are of the same floor plan more than basing the price strictly on the unit you will be photographing. Put a tickler on your calendar to call them back periodically to make images of other floor plans as there are vacancies and new community photos if they done some new landscaping or now that flowers and trees are in bloom if they weren’t before.

  • “and I’m confident they will continue using my as their photographer”
    Uh No, you’re assuming they will continue using you..
    They could just as easily already have someone they know and use…

  • Patrick is correct.
    However, people have feelings and assumptions that will have to be taken into account.
    As you note, you don’t want to rock the boat. The new owners are unknowns. They may continue with you until they feel comfortable to change or they may already have a photographer they work with.
    An attorney will give you advice as to your legal options but the advice is rarely comprehensive in in the initial free consultation.
    There are no guarantees.
    It seems to be a learn and move on moment. I would seriously think about contracts for all future work.

  • What ever you decide on your new TOS, don’t make it to complicated or you are going to run into resistance from the property owner and rental company. Everyone wants to squeeze the last nickle of profit out of their work and that is ok, just don’t squeeze so hard that you may be choking the life out of your business. Negotiate if need be. You get a lawyer involved and you might as well kiss this client off, as well as any that they bad mouth you about.

  • Carlos’ inquiry is one I have received before. A photographer takes photos of a rental for a specific client and then those photos get used over and over and over….

    So, inspired by the topic, I customized the license agreement that I give away for free to real estate and architectural photographers for use with rental properties. Here is a link: https://www.scribd.com/doc/270229160/Real-Estate-Rental-Photography-License

    This agreement has a provision for a “Term” that can be entered to limit the time period during which the photos can be used. You can insert a range of dates, years or just write “unlimited” in the “Term” field. If the use goes beyond the term then the user incurs an additional licensing fee or becomes an infringer.

    It is perfectly fair to charge new owners for use of the photos you took for the original owners. Here is a contract that lets you do that.

    Any suggestions on how this can be improved are welcome!

    Joel

  • @Joel, Thanks much for the link to your license agreement! Note that Joel is an IP attorney and a expert in this area.

  • Have you considered asking your client what his expectations were – and honoring them?

  • Thank you everyone for all the responses. And a speical thank you to Larry for providing PFRE as a place to gather. I appreciate having a forum like this to be able to discuss and hear everyone’s thoughts on the issues which relate to our industry.

    Also, I want to thank Joel Rothman for providing a Terms of Service document, very thoughtful.

    @ Michael and Ken Brown… I appreciate both your constructive criticism and ideas regarding the situation. I plan on using this situation as an opportunity to learn and develop my business processes and pricing.

    @ Joe – Yes, I plan on having a conversation with the client regarding their expectations… but I want to better inform myself before having that conversation, hence posting the question to PFRE and hearing members thoughts and opinions on the situation. I plan on honoring client expectations, and I also plan on setting new expectations via a written TOS. I think the advice to understand the clients expectations and meet/exceed those expectations is spot on.

    @ Tim – You are correct, I shouldn’t assume anything, business 101 !

    @ Patrick – I’m not looking for a fight, much less a lawsuit. I’m interested in keeping the business and earning more business as well as setting new expectations for that future business. However, a consultation with a lawyer may be very informative.

    @ Jerry – Sound advice. I think keeping perspective on the larger picture is very important to keep in mind.

    @ Mark – Keeping everyone’s assumptions and feelings in mind is very important. I want to do exactly that, as well as learn from the situation and apply the lessons to my business.

    I really appreciate everyone’s input on this. Other’s perspectives and constructive criticism is exactly what this forum is so good at providing, and the advice given is really helpful in ordering my thoughts on the matter.

    Happy Shooting Everyone!

    Carlos B.

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