How Do Real Estate Photographers Strike A Balance Between Photo Rights and Marketing?

November 9th, 2015

CopyrightKelly in Georgia asked the following question:

I photographed a listing for the seller, and the buyer’s agent took the photo off of MLS and is using it for his own purposes. This is a response I just received from a realtor in my area to an email I sent to him regarding his unauthorized use of one of my images on a marketing postcard:

“When agents upload the their photographs to the MLS they transfer the rights of those photographs to the MLS. The MLS then transfers the rights of the photo to 3rd party sites such as Zillow and Trulia for the purpose of advertising the property and for the use of the MLS members.”

I would appreciate any feedback as to how to respond to this guy. I am just getting my name out as a real estate photographer, and he happens to work for one of the top agents in the area. I don’t want to alienate any big time agents, but I also want to let him (and other agents) know he’s incorrect. Thanks for any help you all can give me!

Great question! Education of real estate agents on the subject of photo copyright is a continual battle for everyone in real estate photography! The education job is made more difficult in areas where the MLSs have incorrect statements and rules that are sound at odds with the message you are trying to get across to agents.

The best way I know to combat this problem is to present the agent with some solid facts. My source of solid facts in the area of copyright is Joel Rothman of Schneider Rothman Intellectual Property Law Group. Joel and his associate Steve Schlackman wrote a series of 4 posts on their blog a couple of years ago of me in response to all the questions like this that have come up on the PFRE blog. This is a post I wrote that links to Joel and Steve’s explanation of photo rights in the context of real estate and MLSs and syndication sites. This is the best source I know of for explaining this. Joel has been involved in many litigations involving MLSs.

You have to explain to your agent that believes the MLS owns the copyright to your photos that no, the MLS owns a compilation copyright, not the photo copyright. And that the only way you can transfer photo copyright to someone else is you (the photographer) have to sign a document that transfers copyright. See Joel’s 4 posts for all the details. You could email your agent the links to Joel’s 4 posts. Be firm but polite. In the end, your client will very likely respect you for being well informed.

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11 Responses to “How Do Real Estate Photographers Strike A Balance Between Photo Rights and Marketing?”

  • We also must educate the MLS companies. Below is a section of the rules and regs from the MLS I belong to in the Northern Illinois. I recently exchanged several emails and phone conversations with their legal department and they have finally conceded that they are in the process of changing this, as they certainly know most of the professional photos on their site have a copyright watermark that explicitly retains the copyright for the photographer. So the agents are ignoring this rule.

    They recently added a new section to their rules regarding compliance with the Digital Millennium Copyright Act (the “DMCA”) safe harbor provisions that protect them (the MLS) from misuse lawsuits from downstream aggregators such as Zillow (which IS being sued for unauthorized use).

    ——- from their rules:
    SECTION 6.1.2: PHOTOGRAPHY CONTRACTORS
    If a Participant of the Service obtains photographs from a photographer, the Participant must receive a written assignment of all intellectual property rights from the photographer to the Participant’s firm before including the photographs in the Service.

    NOTE: In order to assure compliance with these rules, each Participant that engages a third party photographer and submits photos to the service is advised to obtain a written agreement with the photographer assigning all rights, including copyrights, in the photographs, to the Participant firm. The following provision should be included in the agreement with the photographer: “Photographer hereby assigns all right, title, and interest, including copyrights and all intellectual property rights, in photographs to [insert name of Participant’s firm] and agrees to execute any further documents which may reasonably be necessary to effect such assignment.”

  • Kelly, The whole syndication process is rife with poor contracts and agreements that won’t hold up in a (Federal) court. Most photographers are fine with images being syndicated to the consumer facing websites such as Trulia and Zillow from local MLS’s when the purpose is to market the property. Very few photographers register their images with the Copyright office and no photographers have put up the money to test the contracts used with the syndication of images in a court of law. Until there is some case law, it will stay muddy.

    Larry is correct in that the ONLY way to transfer a Copyright after the image is made is in writing with a specific single-purpose contract. The rights to images can be assigned before they are made via a “Work-for-Hire” contract or if the photographer is an employee of a company and part of their official duties is taking photos. The “and for the use of MLS members” is a complete fabrication. I’ve read several MLS rules and regulations and nowhere have they said anything like that. Most MLS’s use one of a few boiler-plate R&R’s. They do have language that states by uploading any media to the MLS, the agent stipulates that they have the rights (a license or own the Copyright) to that media. This is where there is a disconnect with the photographer. The agent may or may not have the right to post the images and then the MLS syndicates those images to other web sites with a stipulation that the MLS has the rights to do so. The photographer who owns the copyright is no longer in the loop. If somebody downloads (steals) the image from web site several steps removed for a purpose other than marketing the property shown, the spirit of the photographer’s original license is violated along with a strict interpretation of the license.

    Fair use defenses are rarely upheld. Just because an image can be seen by the public does not make it “Public Domain”. The term of a copyright is the lifetime of the creator +50years or, for a corporation, 70years from creation. Disney owns enough politicians that they have a perpetual copyright on their IP. A © symbol has not been required to appear on photos since 1972. A Copyright is generated the moment the image is captured on film or written to the memory card. The photographer is granted the Copyright regardless of who owns the equipment (WFMH and employee exceptions apply). While a photographer will automatically have a copyright on their creations, without registering them in a timely fashion, there isn’t a lot that can be done if they’re ripped off.

    A basic overview of Copyright should be a requirement for agent’s to get their license. You should let the agent know that the license you granted the agent that commissioned the images does not allow for transferring the images to another agent and the MLS definitely does not condone or allow the reuse of images placed on their system. You can also try to license the images they downloaded and sell them on using your services for their listings with the bonus that they can continue using the images you make for them for their own personal advertising. Sending them an invoice for the ones they have stolen doesn’t do you any good and is a bad practice. If they aren’t going to do business with you and will not stop using the images, send a letter to the broker they work under (if they aren’t the broker in the office) and if that doesn’t get results, contact their local MLS and politely describe the situation to them including that the agent believes that they are welcome to use any images they find on that MLS.

    Register your images. Published images registered within 90 days of first publication can receive full protection. After 90 days, you can still register the images, but any infringements before then will only be eligible for a limited set of remedies. Registration is currently $55 per registration. A registration can be for thousands of images although the Copyright Office prefers that the first few registrations you do of published images be limited. Copyright.gov is the website to browse. There are some good tutorials and FAQ’s to browse through. Search YouTube for Ed Greenberg’s and Jack Reznicki’s presentations on Copyright given at BHphoto. The latest one doesn’t walk through the online process, but the previous ones do. The same presentation is also available on KelbyOne with Mia McCormick. They don’t cover registrations of published images, but once you know how to do unpublished, you can learn the extra steps fairly quickly.

  • Michael Allen, I’d be more than happy to assign all Copyrights to the agents. I don’t think that the agents would pay the price I’d charge for that. It looks like the N. Illinois MLS needs to contract with a law firm that has an IP practice or at least consult with attorneys that specialize in that branch. I know a few that would love to provide consulting for that. Since they speak the same (unintelligible) language, it’s easier for one attorney to converse with another one. I can understand my cat better than a lawyer when they’re in full flood.

  • In my area mls beliefs are rife with misinformation. Definitely look up your local MLS rules and regs, (there is usually a photography) in your field you need to know this stuff for your clients own benefit as well as yours.

  • *photography section

  • I also have a situation similar that just happened today, and not sure how to deal with it.
    I shot a property for an agent last week and the property was just sold.
    Now, the buyers agent called to say the owner is going to rent the property and wanted to use my images on a rental website and said my agent said he could use my images.
    I told his agent I shot this for a one time use for the selling agent, and wanted $150 to use it for his ongoing rental site. His agent said that sounded expensive and would talk to her buyer.
    Any advice.

  • @Eric,

    So did the buyers agent say that the selling agent also told him he could have your car? WTF? Your client has no say in who can use your property (in this case, photos). Surely you’ve put this in writing somewhere, even though it’s the default position, legally.

    NEVER WORK WITHOUT A CONTRACT. EVER.

    Also, for what it’s worth, $150 for “ongoing” rental site use is CRAZY cheap. Does “ongoing” mean “forever”? Are you sure they really want that? Are they really going to be interested in using these pictures 20 years from now? ‘Cause that’s what they’re paying for…

  • Thanks Scott,
    How do you determine or set a time limit on a rental property?

  • @Eric,

    I have the same problem come up several times a year. I contacted the vacation rental site and submitted the paper work they required to have the pictures removed. I see now that one of them that was removed is back up again.

  • @ Eric,
    It’s whatever you negotiate with them — start by asking what they need. Typical increments would be 1 year, 3 years, 5 years. One of the things I think about when determining if my fees are reasonable is the overall budget. A rental in my area is likely to generate anywhere from $3K to $5K in revenue monthly – or $36K to $60K annually. At that point, a four-figure licensing fee doesn’t seem out of line, especially if everyone agrees that good photos are going to rent the place faster. A house sitting empty is a very expensive thing, to the owner.

  • @ Everyone,

    I think as a group we all can do better educating our clients so that these things don’t happen. I’m not sure the proper way to do that though. I run into this problem daily..:(

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