Great News: NAR is Finally Educating Realtors About Listing Photo Copyright Law

November 26th, 2015

NARCopyrightInfoThe good news: Finally the US National Association of REALTORS (NAR) is educating Realtors about copyright issues involved with listing photos (see this NAR article). This should have started long ago, but let’s be thankful that they finally realized that photo copyright is an area that agents need education. This is a very significant development because agents in the US respect and pay attention to the NAR. Most real estate offices use NAR materials to help educate agents. The fact is, agents are probably going to pay more attention to information like this coming from the NAR than they are if it is coming from their professional real estate photographer! Notice that the article has three agreements for agents to download.

The bad news: Some local real estate offices are interpreting this copyright info to be a reason that agents should shoot their own listings. For example, here is an excerpt from an email that Jonathan, on the Big Island, got from one of his clients:

…The safest way to make sure that you’re safe, of course, is to take your own photos. But if you must hire a photographer to take photos for you, please make sure that you have secured all the rights to use the images in writing…

So when explaining your license agreement to your agent clients it may be helpful and add credibility to your story to refer to this NAR article. Most US agents are NAR members so it should add to your credibility.

Update – More bad news: As you can see below in Joel Rothman’s (an Intellectual Property Attorney) detailed and insightful comments you should not sign the NAR’s license agreements. Joel says to NAR general counsel:

…Your sample agreements, and in particular the exclusive license, is overbroad and overreaching for the typical agent-photographer relationship. If NAR wants to perpetuate disputes with the photographers their members depend upon to earn their commissions, and continue to sow seeds of distrust, then these sample agreements will accomplish those goals. I will advise my photographer clients not to sign NAR’s sample agreements…

Thanks Joel for you valuable input! Note that we have a copy of Joel’s recommended photo license agreement in our e-book: The Business of Real Estate Photography.

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18 Responses to “Great News: NAR is Finally Educating Realtors About Listing Photo Copyright Law”

  • Thanks for noticing and bringing this up. You are exactly right about the “good news – bad news” characterization. They provide three suggested agreements:

    “Work for Hire Agreement” — Not appropriate for 99.9% of us

    “Assignment Agreement” — Not appropriate for most. This means that the RE agent/brokerage now OWNS the photos and their copyrights.

    “Exclusive License Agreement” — This SHOULD be the one that most of us COULD use, but read this wording.

    ——–[quote from Exclusive License Agreement] —
    “Photographer hereby grants to Brokerage an exclusive worldwide royalty-free license in perpetuity to reproduce, distribute, display, prepare derivate works of, and publicly perform the Images in connection with the real estate industry, including without limitation such uses of the Images in connection with advertising real property and to authorize and sublicense such rights to third parties at Brokerage’s discretion.

    “This exclusive license grant shall include the right to sue for copyright infringement, including without limitation past infringement. To that end, Photographers agrees to assist Brokerage in preparing and filing any copyright applications that cover the Images, including providing any information necessary to prepare such applications.”
    ———-

    I don’t think I want to grant an EXCLUSIVE license. I don’t want it to be in perpetuity. I don’t want them to prepare DERIVATIVE works. I don’t want to license ALL uses for ALL advertising for ALL real property. I don’t want to grant them the right to sue for copyright infringement – that’s my job. The wording: “…Including … past infringement” — what does than mean?

    So. As you say: it’s great that the NAR is paying attention to this. But, I’m hoping that none of my RE clients want me to use THIS. IMO, what’s missing is a “Non-Exclusive License Agreement”

  • Also: royalty-free licenses (Like what IStockphoto does), can not be given on an exclusive basis. It’s a contradiction in terms.

    “Rights-managed” licenses are more in line with what we do.

    Here’s a concise description: http://www.gettyimages.com/company/license-info

  • Many of you know me as a copyright attorney who represents photographers. Recently, I attended a legal seminar presented by the Council of Multiple Listing Services. The attendees were lawyers who represent MLS’s across the country, as well as executives who operate real estate associations. In attendance was Katherine Johnson, the General Counsel of the National Association of Realtors. I spoke up in defense of photographers and their rights during the seminar. This made for a lively debate, basically me against a room of 60 or so adversaries.

    After the event, Katherine and I had the following email exchange. I have no issue reprinting it here. I basically told her that I would do so.

    ***

    Katherine,

    Regarding copyright licensing, the exclusive rights in 17 USC 106 can be licensed individually. Standing to sue for infringement does not require an exclusive license of all rights. That was the rule under the 1909 Act. Under the 1976 Act, an exclusive license to just one of the 106 rights is sufficient to grant standing to sue. See Sec. 12.02, Nimmer on Copyright.

    What right must an MLS have? It seems to me that MLS’s need the distribution right. Without the distribution right, MLS’s can’t function. They cannot syndicate, they cannot create IDX or RETS feeds, etc. Distribution is the same right MLS’s are concerned about with their own compilation copyright.

    Do photographers care about the distribution right? I have not met one who does. They are concerned about copying, not distribution.

    To provide for a balance of uses, and make the playing field fair to both MLS and photographer, I would suggest that an appropriate license that gives the MLS standing to sue would contain:

    1. The grant of an exclusive license of the right of distribution to MLS from photographer, including the right to a) register the copyright in the name of the photographer with the MLS as owner, b) sue for infringement of the distribution right, and c) sublicense the distribution right.

    2. The grant of a non-exclusive license to the MLS, its IT vendors, and its business partners, to copy, display and create derivative works for the purpose of promoting the sale of the property features in the photos, and for other related rights (operating the MLS, publicizing the MLS’s services, etc.). This license would be transferrable to other MLS’s or associations in the event of mergers, consolidations, etc.

    3. A non-exclusive license back from the MLS to the photographer for the distribution right for the photographer’s use for the photographer’s own publicity, promotion, and other purposes that are unrelated to promoting the sale of the property in the photos.

    4. I would also specifically provide for a non-exclusive license from both the MLS and photographer to the agent for whom the photos were taken with similar provisions to above on condition that the agent a) is current on his or her MLS/Association membership, and b) paid the photographer his/her fee for their services.

    This puts the MLS in a very powerful position. This gives the photographer and agent each what they need.

    Joel Rothman

    ***

    Hi Joel,

    Regarding copyright in property photos, we think our members have the need and expectation to use, copy, reproduce, create derivatives, etc. the photos as desired within the real estate industry and to prevent others from doing the same. If a professional photographer will not grant a work made for hire, then an exclusive license for such uses within the real estate industry will preserve the member’s ability to transfer any such rights to MLSs or portals as necessary, it will allow members to sue for infringement within the real estate industry, and it will allow photographers to reserve all other rights in the photos for the photographer’s own publicity, promotion, and other purposes that are unrelated to promoting the sale of the property in the photos.
    In case you’re interested, our sample agreements are available at: http://www.realtor.org/law-and-ethics/who-owns-your-property-photos.
    Best regards,
    Katie Johnson

    ***

    Katherine,

    Your email says that your members need the rights to “use, copy, reproduce, create derivatives, etc. the photos as desired within the real estate industry and to prevent others from doing the same.” You also say that your members need to have the “ability to transfer any such rights to MLSs or portals as necessary” and “to sue for infringement within the real estate industry.”

    However, NAR’s sample agreements go way beyond this. None of the sample agreements you have proposed reserve any rights in the photographer whatsoever. None of the sample agreements you have proposed condition the photographer’s grant of rights upon receipt of payment. None of the sample agreements you have proposed permit the photographer to address copyright violations of any kind, even ones that their customers would object to equally.

    The NAR “core standards” that went into effect June 30, 2015 require that all “Association’s Bylaws, MLS Bylaws and/or Rules and Regulations (if applicable) and professional standards procedures are consistent with NAR policy.” The “core standards” require local real estate associations “to maintain policies and procedures that conform with local, state and federal laws.” Copyright infringement violates federal law and the rights of the copyright holder, whether that be agent or photographer. Compliance with the NAR “core standards” mandates that MLS’s and Associations not commit copyright infringement of real estate photographs, no matter who owns the copyright. The rules against copyright infringement have been well known in the real estate industry for many years. Agents, brokers, MLS’s and Associations all know and understand these rules. Yet they continually fight with photographers about them.

    Your sample agreements, and in particular the exclusive license, is overbroad and overreaching for the typical agent-photographer relationship. If NAR wants to perpetuate disputes with the photographers their members depend upon to earn their commissions, and continue to sow seeds of distrust, then these sample agreements will accomplish those goals. I will advise my photographer clients not to sign NAR’s sample agreements. I will tell the same thing to http://www.photographyforrealestate.com, http://www.realestatephotographers.org/, http://www.aiap.net/, and anywhere else real estate photographers congregate.

    Alternatively, I suggest NAR adopt forms and recommend rules that are fair to photographers and Realtors® alike. If you would like my assistance with this I am pleased to offer it.

    Joel

  • The lack of professionalism in the real estate industry is staggering. I find it curious that an organization that uses photographs that have the copyright stripped (realtor.com), a clear violation of copyright law, is now trying to tell their agents how to abide the law. In this poorly conceived article I see no reference to legal precedence or opine by a professional photographer, but rather a disguised attempt to set themselves up as some sort of authority.

    One would think, albeit incorrectly, that a “professional” organization would coach their members on the benefits of working with other professionals to enhance both their image and results. A quick perusal of real estate listing will show that the vast majority of agents do not utilize a professional photographer and do a poor job of representing their client’s property. The last thing this organization needs is to drive away professionals and further degrade their industry. Few professional photographers will “work for hire” or give an absolute release of their work. And I see no mention in this article of the benefits of working with a photographer.

    When they say “VHT purportedly retains ownership” they’re clearly taking sides on a yet settled legal matter, and I for one think they’re wrong. IMHO, unless they can provide documentation of VHT releasing their copyright, they do indeed retain ownership. I really do believe this article was written with the sole objective of stating a position on the legal case now before the courts.

  • My personal opinion on this is that it is very difficult to educate realtors on copyright. I have sort of gotten used to my photographs being used beyond what the license and price per photograph was intended. I mean, these are the cheapest photographs I can think of for a reason. On a stock website you can try and license a bad image of a jogger running on the beach and it will run you 20 bucks or more. Re stuff goes for 10 bucks an image give or take. I mean the rate is astoundingly low for a reason… You don’t get to use it for anything other than marketing the sale of the property.

    Since it is honestly too difficult and time consuming to talk to people about all of this, I think the solution is just to build the further use of images into your rates. In short, charge more. Simple, effective and hopefully something that catches on because it will benefit everybody. Interestingly, isn’t this what we see corporate America doing everyday? We hear them say that insurance fraudsters make your rates go up. Ok, thank you. Well, it’s the same case here, and there should not be any qualms raising your rates for a few who violate terms as corporate America does it everyday, and people seem to be fine with their logic.

  • @Gary Mitidero…NAR and Realtor.com are not related organizations. They severed their relationship about 5 years ago.

    I find it interesting that NAR has totally ignored the concept of value, as each of their one sided and self-serving demands on photographer has a cost/value component. Perpetual use, exclusive use, copyright…how much will that cost. Additionally, with copyright transfer are they going to squander current protections afforded by the photographer who registers the photos with the U S Copyright office, or are the going to neglect that additional cost and have the only protection at “fair use” in small claims court. I doubt that there is a Realtor nationwide that registers the original creative literary work that they write about the property or the photos they personally take. TO illustrate cost/value, the suggested “Exclusive Licensing Agreement”, while exceeding the typical commercial shoot license, it does make a good comparison. I illustrate the value by quoting corporate shoot rates that have the perpetual multi use license. While they are picking their jaw up off the ground thinking I must be kidding, I then rub it in by noting that the typical clients – New Home Builders, architects, etc pay it without hesitation. When asked about “Work for Hire” I not that I would be in the position of being their employee, start asking about benefits, their paying workmans comp, employer’s portion of SS and generate a W2 until they are fully glassy eyed at all the work.. If they define it as independent contractor as the NAR agreement specifies, then will point out the need to generate a 1099 and their filings with IRS…which quickly ends the conversation. NAR is actually doing a disservice to Realtors by generating those, and I say that as a Realtor and a member of NAR.

    As a Realtor and owner od a photography business, where I have a problem is not with the Realtors marketing the home through all available avenues, including syndication, nor the extended use by the Realtor and their broker to generate new business (that the photographer then shoots.) Rather, it is with the syndicators essentially receiving the raw material (photos and Realtor’s creative writeup) and turns it into a new product they then turn around and sell back to the Realtor. Worse, it borders on extortion. Requiring the listing agent to buy it from them or they would give the leads generated to the listing agent’s competitor who does buy the leads. Buying/Subscribing from each syndicator, even if limiting to the top 4, is several thousand dollars a year. Perhaps the syndicators should be paying royalties to the Realtors and photographers for using their work in a new commercial product. At worse, the syndicators, by redirecting leads away from the listing agent is adversely affecting the investment of the listing agent.

  • @Larry Gray, Copyright cases must be heard in Federal court in the US. If it is filed in a Small Claims court and not rejected by the clerk, the judge must reject the case. Yep, it’s a Federal case.

    I am open to assigning copyright of images I create of a home to an agent or broker, but I highly doubt that they would be willing to pay the fee I would charge.

    Just within the last couple of years a large franchiser tried to get their franchisees to have photographers sign a contract giving the franchiser unlimited usage of images made for home marketed under their name. That was a slap in the face to photographers as the usage the franchiser would make of those images commands thousands of dollars per year per image and they were attempting to get the images for free. The tactic didn’t work and the offices that tried to rope photographers into such a bad agreement created bad feelings and I heard of several photographers that ceased doing business with those offices leaving them with no high quality images and a boost to the local competition.

    Most photographers already charge a low price for listing photography to start with. Secondary licensing gives photographers a chance to earn additional income. I have agents often ask me to provide 30 images for $30. That’s doesn’t even come close to minimum wage for the time and hard costs, never mind that I’m bringing several thousand dollars worth of equipment to the job, paying for commercial insurance and a monthly fee for my software tools. It’s just as insulting to ask for all the rights to images with an industry value of tens of thousands of dollars for $100-$200. The proposed terms on the NAR web site deny the photographer to even use the images they make in their own portfolio.

    It seems that the NAR needs to consult attorneys that practice in the creative sector. Just as a General Practice medical doctor should consult a specialist when confronted with a serious issue involving a patient, so should legal professionals when working on issues that they may not have come across since law school. It’s a huge disservice for NAR to recommend to their members that they try to use any of the contracts published. They will insult the people that they want to help them with their visual marketing and cripple their chances of earning a living selling real estate.

  • @Ken Brown… I agree REGISTERED copyright cases must be heard in Federal court. But my point was that Realtors are so cheap they will fail to register, avoiding the extra expense. There are 2 basic levels of copyright…the automatic or inherent which everyone has when taking any picture, and the fully registered. With the registered, lawyers will represent and potential penalties/awards are significant. With non-registered inherent copyright, awards are limited to ‘fair use’, typically what…$100-150?…and may not even cover filing fees which may or may not be included in the award. Obviously, no lawyer is going to represent and it becomes a DIY effort with the small sum relegating to small claims court or something of that level. Of course, that only perpetuates the problem as the offender pays the $100 on the one they got caught on, but not the others they haven’t been caught on and is effectively rewarded.

    Even corporate lawyers may not represent them in unregistered copyright situations due it costing the company more than the award. I experienced a similar situation but involved mandatory arbitration and procuring cause rather than copyright. It would have been a slam dunk for me well exceeding the proof on typical procuring cause cases, but turned down by corporate as it would cost $8000 to file and the commission was only $4000.

  • Joel, thanks for your efforts in this area. It’s a complex issue because of the syndication aspects, particularly regarding sites like Zillow etc. using (and monetizing) photos after the original listing has expired.

    But I’m concerned about your proposed terms. Unless I’m misunderstanding them, you’re suggesting that agents/brokerages should receive EXCLUSIVE rights to use the photos for the purpose of selling the house, while leaving the photographer the right to re-license for purposes NOT related to selling the house. You also don’t address the question of term limits. Issuing a perpetual license (even if limited to real estate use) effectively cuts off the most common secondary licensing stream for the photographer.

    While it’s true that some photos will have uses beyond the world of real estate, the most common secondary licensing of my real estate photos was always to subsequent listing agents. It’s quite common for a listing to not sell, and once the agent’s listing agreement expires, the listing can be taken over by another agent, often with a different brokerage. In those cases, the photographer needs to be able to re-license those photos to the new agent/brokerage. Allowing the original listing agent to transfer (or worse, SELL) my photos to a new listing agent is un-acceptable, to me. Each new use of my photos requires a new license, as far as I’m concerned.

    Term limits are the key. The license granted to the agent or brokerage should be FOR THE LIFE OF THE LISTING, and not longer. The license should expire when:
    A) the house sells
    B) the listing agreement expires
    C) the listing is transferred to another agent or brokerage
    D) the homeowner withdraws the listing from the market.

    That way, the photographer can realize the revenue potential of their property. Granting exclusivity on any level is a bad deal for photographers, in my opinion.

  • @Scott Hargis, I am not advocating a perpetual license. Exclusive does not have to be perpetual. It can be for a term. And your term limits are appropriate.

    Unfortunately, NAR is not even interested in going as far as either you or I have suggested. They want no limitations. They want all your rights. Their reasons are ridiculous.

  • Joel, yeah, sorry — I meant to write “Granting exclusivity IN PERPETUITY is a bad daal..”

  • @Larry Gray, My attorney has advised me and all information I have come across requires that Copyright cases are heard in Federal court which requires registration to be cost effective. “Fair Use” is something different than you describe. I believe that what you mean is Actual Damages which is what you would normally charge for a similar job. If you have to take a day off to go to court only to recover one job’s worth of payment, it might be better to work that day. It’s a very good idea to register all of ones images. For published images there is a 3 month time limit to maintain full protection which means that one only has to register their RE images 4 to 5 times per year. Published images can still be registered after the 3 months but, the number of remedies diminishes.

    The license I grant is the same as what Scott has outlined. I also allow the agent to continue to use the images for their own promotion on a non-exclusive, non-transfer basis. I am open to keeping images under wraps for a limited time until the agent takes the listing live if asked so I’m not leaking information that a particular owner is selling/moving. The rights grab documents that NAR has published are insulting and don’t reflect the needs of agents.

  • What the NAR is trying to get in writing is the de facto status quo for the majority of real estate photographers. From what is said here and on the PFRE Flickr forum, it’s clear that very few photographers are putting any terms in writing at all, and that many are pursuing a “shoot-and-forget” model in which they do not think about future licensing revenue from their work. Many of the major “Tour” companies explicitly award ownership of the images to their client (which I find utterly reprehensible on several levels).

    That being said, it’s also true that for most brokerages, the 80-20 rule applies: 80% of the transactions are handled by the top 20% of the agents. Increasingly, these top agents are dissatisfied with the mass-market photographers and are seeking out higher-end photography that’s more consistent with their own brand. This is where the NAR guidelines will break down, because no photographer with the talent and business acumen to work at that level will accept the terms the NAR is proposing. At that point, either the photographer walks away, or the agent departs from the NAR guidelines.

    So the question is, will the NAR cater to the bottom majority (in terms of sheer numbers of agents), or will it cater to the needs of the minority that are actually selling most of the houses? Which constituency has the most leverage?

  • @Scott Hargis

    Said: “Term limits are the key. The license granted to the agent or brokerage should be FOR THE LIFE OF THE LISTING, and not longer. The license should expire when:
    A) the house sells
    B) the listing agreement expires
    C) the listing is transferred to another agent or brokerage
    D) the homeowner withdraws the listing from the market.”

    I agree, except that many MLS (mine included) keep at least the main front photo online for sold, cancelled, and expired listings. This is useful for us agents when researching CMA’s or checking property history and comparables for the buyers we work with. For that purpose it would be more useful if they kept ALL the listing photos in their archives. These non-active listing archives are generally visible ONLY to other agents.

  • Joel, I want to say a hearty “Thank You” for your efforts on behalf of all RE photographers. It’s wonderful to have someone who understands IP law, and how it actually applies to photographers (and not just RE), and is willing to stand firm. I can only hope that Katherine and the rest of the MLS/NAR lawyers see the truth in your statements, and adjust their agreements accordingly so everyone wins, not just one side.

    Thanks Again

    Tim W.

  • It seems to me this will just make more of the photographers that service 80% of the agents to become “shoot and forget”. And for the photographers that wont give up their rights and walk away, this makes room for more shoot and forgetters. Both responses creating more downward pressure on prices. Also, the NAR appears to be trying to create a new profit center vis a vie Zillow and VHT. They are acting like the monopoly they are and they have the resources to quash a bunch of independent photographers that might take exception.

  • In the end it is not a question of who owns the copyright, it is a question of who is prepared to defend the copyright. My MLS claims they own “…All right, title, and interest in each copy of every Multiple Listing Compilation (including photographs) created and copyrighted by (the MLS)…”. This forces me to sue my MLS to defend my copyright. And consider this, Berkshire Hathaway, aka Warren Buffet, has sued Neighborcity for copyright infringement of using photographs of Berkshire listings. What real estate photographer is in a position to fight these corporations with deep pockets and a multitude of lawyers on staff? This is why real estate photograhy has become shoot and forget.

  • Thanks for the discussion. Has anyone proposed a revised NAR agreement that would be agreeable for both parties. If so, can you please send to me.

    Thanks.

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