Explanation Of Real Estate Photo Licensing For Agents

December 29th, 2015

Digital Image by Sean Locke Digital Planet Design www.digitalplanetdesign.comEric in Southern California asked for the following:

I’ve been looking through the site for a basic simple explanation on copyrights and usage for real estate agents to understand. I’ve been a photographer for most of my life and doing real estate photos for about eight years and in working with several different agents in different areas I’ve found that some understand the copyright but most do not. No matter how I try and explain it or compare it to something familiar to them or even if they agree to a TOS that spells it out, I still hear, “oh, I didn’t think that meant I can’t give the shots to the architect or designer so they could use them, I already paid for them”.

Here is my explanation of photo usage rights for real estate agents:

  1. Photographers own the photos they take. So when you hire a real estate photographer to take photos of a real estate listing what you are paying for is a temporary LICENSE for one specific person (you) to USE those photos for a specific purpose (advertise your listing) for a specific length of time (the duration of your listing).
  2. Many real estate photographers expect to license the same photos they take for you to other parties. Perhaps the stager, the architect, an interior designer or even another listing agent that lists this same property next year. So don’t give photos that are licensed to you away to anyone without first consulting with the photographer that owns the copyright. These photographers will probably ask you to sign a license agreement, mostly so it is clear exactly how you are allowed to use the photos that are licensed to you.
  3. Some photographers may not discuss photo licensing with you. This may be either because they just haven’t taken the time or they don’t intend to relicense the photos. In any case, don’t assume the lack of a discussion about photo ownership means that you, the agent, own listing photos taken by a professional real estate photographer. You don’t. Always check with the photographer before giving listing photos taken for you by a professional photographer to anyone.
  4. Your MLS may claim that by uploading listing photos to the MLS site you (the agent) transfer ownership or copyright of the photos to the MLS. Court cases have shown this to be false. You (the agent) cannot transfer the copyright because you do not own the copyright. Copyright can only be transfered via a signed document. MLSs just want to protect themselves and their members and no one wants to spend the time and money to get MLSs to get them to fix their rules as long as they don’t violate the photographer’s copyright so everyone typically ignores the false MLS claims in the area of photo copyright.

Did I miss anything? Also, photographers if you like the explanation above, feel free to use it in your terms of service or just refer you clients to this page.

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41 Responses to “Explanation Of Real Estate Photo Licensing For Agents”

  • For years I have explained the terms of ownership with new agents and most end up looking like a deer caught in the head lights…. I bottom line it for them…they do not have any ownership rights, only the privilege of using them for marketing through the term of their active listing. ANYTHING else must be run through our office….Period.

    Bottom line, I do not have the time or patience to hand hold every new agent that comes along and has not educated themselves on the copyright of the images. With every new client, we go over our services, fees and ownership…. after that it is up to them to abide. If not, then we go from there.

    Add to the fact that with over 1,000 real estate shoots a year, we have less than 5 instances where I have my attention peaked. And of Those….all have been resolved. So, this issue, is a big to do about something that really should not take up a lot of your free time. Set the terms clear with all new clients, then move on. If they choose to act dumb and “forget”, then REMIND them.

  • I love this site and consider it an invaluable resource for its intended audience, which it serves and educates exceedingly well.

    That said, I find the typical photographer’s approach to copyright licensing maddeningly out of touch with the realities of the real estate business and the nature of the typical real estate photography assignment.

    Real estate agents badly need to be educated about copyright, but there are only three words they need to learn: “work for hire.” The agent has provided the photographer access to the locale of the photographs, paid for the service, and should own the resulting product.

  • WOW!….. Another Deer in the headlights….

  • @Joe – Some photographers that shoot low-end homes don’t relicense photos so they’d probably be willing to sign a work-for-hire agreement which transfers copyright to the Realtor but many photographers that shoot upper-end homes have explained on this blog that they can make many thousand dollars a year relicensing photos… there’s no way they would sign a work-for-hire agreement. You just can’t consider all photographers the same on this subject.

    Recently the NAR has been promoting work-for-hire agreements for real estate photography (see: http://www.realtor.org/videos/window-to-the-law-listing-video-copyright-issues?cid=RISVID0022) but this is just not realistic!

  • Not a deer, Jerry. Practiced law for 5 years at one of Chicago’s largest firms. Have run a successful real estate print and web publishing business for nearly 30 years, and also own a business that provides complex real state ad management apps to major real estate firms and newspapers from coast to coast.

    Note that I was simply suggesting the approach I’d advise real estate agents to take with photographers to ensure that their very realistic expectations are clarified and honored.

  • Larry,

    I’ve hired many talented photographers over the years, including guys whose day rate ranges upwards of $3K plus expenses. Not doubting that they’re out there, but I’ve yet to meet one that won’t sign a work for hire agreement.

    I’d argue that work for hire agreements are even more appropriate for upper-end homes where an agent’s relationship with a seller or buyer might be at risk over a photographer’s resale of photos in a way that the seller or buyer finds objectionable.

  • OK Joe, sounds like you have some experience with RE agents, so you should also realize that some are hard pressed to spend any more than they have to to sell the property. Your suggestion, “simply suggesting the approach I’d advise real estate agents to take with photographers to ensure that their very realistic expectations are clarified and honored.” is one I would consider…..at a much higher rate than I normally have. I don’t say no….I say how much. From time to time I come across some new yahoo who demands full ownership, I point out that the fees posted are for my terms, but if they want it on their terms, the cost will be xyz. I am at a point in my profession where I no longer advertise, new clients seek me out and I am fortunate enough to be able to say NO whenever I want.

    This whole BS is not new, rather the misconception by many that photographers are nothing more than service agents that “work for hire” for them. For many years I owned a studio that specialized in weddings. We did thousands over the years and I myself did well over 1, 500 couples. It was the same thing then with the clients thinking that they owned the rights to the photos and again, they were so wrong as born out with many legal actions. Those clients that wanted full rights paid for them.

    Bottom line, agents will not pay the fees associated with full rights, hell, they don’t want to pay for the limited rights.

  • @Jerry, excellent summation in the bottom line, and I might add…they won’t even pay an additional $65 to the U S Copyright office to register the photos that they gained ownership of through work for hire, effectively wasting an asset.

    @Joe. Sometime being a lawyer is the lawyer’s biggest problem. Rather than micro-focusing with the ‘work for hire solution’ take your blinders off, losing the tunnel vision and you may find that you are doing a disservice not only to the photographers with the power play, but also to the Realtor/client you are advising. Absent is any advise to the Realtor that a copyright transfer has value and expect to pay for that value. Additionally, there is no discussion of what the Realtor needs to do to preserve that value with copyright registration. Nothing is free, but the simplistic advice of ‘work for hire’ seems to infer in the minds of the Realtor that it is.

  • I have noticed real estate agents tend to have a lack of respect for the copyright issues that have been explained to them. Not long ago I explained to an agent that we can’t just put a football game on the TV’s in the photos because somebody (like NBC or whoever it is) owns that imagery. I was flat out told I was wrong, that we can do that. At that point I just figured continuing on and trying to somehow “win” the argument was futile.

    Anyway, that is how I see this. I don’t think explaining it helps in most situations, in my experience anyway. I have said this before but I think the best way to deal with this in the real estate real is to work the un-licensed use of your imagery into your overall fees. It’s like when the car insurance companies say the ones who perpetrate insurance fraud raise the rates for everyone. Here, the agents who use unlicensed photos raise the rates for everyone. I just don’t think education is the answer when people appear to be unwilling to listen. There is actually an example of it right here in this thread so I don’t feel so out of line mentioning it at all.

  • Joe – if the Realtors would do it the way you suggest, that would be okay. Telling the photographer upfront that they need all rights to the images. Because the negotiations could begin and if all are in agreement, a copyright assignment agreement (or a work for hire agreement) could be entered into. Problem is that’s not the way it happens… we find out about the infringement almost by accident (usually another agent tells me). Or I have a situation now where a Contractor promised several vendors that they could use the photos for a better price on their services…. even though they had no right to do this.

    Educate the Realtors and what rights they have or don’t have. In the meantime, they should pay heavily if they infringe on the photographers right.

  • I don’t know jack about legalities but having an attorney-dad 60 years definitely taught me common sense (and that some laws are just silly). In the context of real estate marketing shoots: Retaining blanket ‘ownership rights’ to an image you created of the interior of someone else’s home is absurd. Then, theoretically, holding onto it through that property’s ownership change? You are kidding yourself.

    I love this blog too. Read it almost every day and have learned a shit-load. I’m grateful to Larry for what must be huge work. Just one thing I don’t like that I read here pretty often: A negative/ resentful/ combative tone referencing RE agents, as if they’re some kind of enemy. Sure, like everywhere, there’s good ones and otherwise. But I think relationship building and retention (and swallowing hard sometimes) is a far more profitable way to run a business than having a chip on your shoulder.

  • Dave, can we assume that you’ve burned, deleted, or otherwise destroyed all photographs you may have of your childhood home, and any other place you’ve lived throughout your life, that you don’t currently own? Because those houses belong to someone else now, and the notion that you can just retain ownership of photos of their homes is absurd.

    amiright?

    This entire discussion (but not Larry’s post) is absurd. We may as well be discussing whether the government can require us to have driver’s licenses, or whether murder is really illegal (since there’s no mention of it in the constitution).
    Intellectual property rights, copyright, the licensing of IP as a business model, property releases, privacy rights and etc. etc. etc. are all extremely well-established and thoroughly tested and vetted concepts. They’ve been litigated and upheld and refined and defined over decades. We’re talking about the establishment here. Photographers own their photos. Even the photos they took of residential interiors, even after the house has been sold. And they can (and do) license those photos, over and over. It’s been tested in the courts. It’s been industry standard practice for many decades. It’s old news. The earth is round, the sky is blue, and photographers own their photos.

    And yet, some folks who are encountering these things for the first time in their lives feel that they’re qualified to make pronouncements that are not only mis-informed, but are demonstrably false. Part of wisdom is knowing what you don’t know, folks.

    @ Joe Zekas:
    “I’ve hired many talented photographers over the years, including guys whose day rate ranges upwards of $3K plus expenses. Not doubting that they’re out there, but I’ve yet to meet one that won’t sign a work for hire agreement.”

    You can get away with saying stuff like that to a group of laypeople, because they don’t know any better. But when you walk into a room full of professional photographers (like this one) it INSTANTLY strips away any credibility you might have had. It would be like me walking into a room full of RE agents and claiming that I’ve sold dozens of houses over the years and never met an agent who wouldn’t agree to list my properties for a flat fee instead of this “commission” baloney.

    Now — for the mainstream readers: The time to assert your terms is BEFORE the shoot, BEFORE there’s a problem. Put it in writing — your real estate agent clients don’t do ANYTHING without a contract, and neither should you. Have your agents sign off on a copy of your terms, and put it in a file. But even more importantly, from a practical standpoint, have a frank, un-apologetic, un-ambiguous conversation with them. Make eye contact, tell them the facts of life regarding your photos and where their rights begin and end. Finish up with a firm handshake. That will go further than any fine print. Here’s the “usage” section of the real estate photography contract I made every agent (or their broker) I worked with sign off on:

    “Rights and Usage:
    All images produced by Scott Hargis Photo [Photographer] for ______ Real Estate Brokerage [Client] may
    be used by the Client and Client’s parent company for the sole purpose of marketing the specific property
    photographed. Please note, however, that the images will be copyrighted by the Photographer, and
    license is granted only to the Client and Client’s parent company, and not to any third party. Any usage
    of the images by any third party, including but not limited to, architects, builders, stagers, designers,
    sellers or buyers, is strictly prohibited unless approved in writing by the Scott Hargis Photo.

    End User License Agreement (EULA):
    License is granted to the individual listing agent and _______ Real Estate Brokerage to use image(s) without
    restriction and for unlimited time period for the marketing of the property, and for self-promotional
    purposes. Photos may be given to the seller of the property for non-commercial, personal use by the
    seller. This license is not transferrable. Images are Copyrighted to the Photographer and may not be sold,
    awarded, or transferred to third parties by Client without prior authorization.”

    It’s not perfect language, it wasn’t written by a lawyer…but it states the facts, and it worked extremely well for me. I had very few problems with copyright infringements, but when I did, I was prepared to resolve them because I had my terms in writing, with the client’s signature at the bottom. Feel free to use that language in your own business (but please change the photographer’s name). 😉

  • Wow Scott, l-o-v-e your writing (as well as your photography!)

    The thing is, taking an argument to the extreme isn’t really saying much – Childhood photos with a glimpse of a home’s interior 60 years ago? An, murder? Really? ‘In the context of marketing’ it doesn’t take much imagination to see there’s some privacy issues bubbling to the surface. Wait for it.

    Also, I couldn’t agree more with ‘part of wisdom is knowing what you don’t know’. But I feel just as strongly that assuming the sky is blue and earth round is one of the biggest mistakes in life a person can make.

    Geeeez, you should write a book. Oh wait, you already did (loved it!)

  • There is nothing wrongs with working under a WFH contract or assigning a copyright to somebody else after. But, if as a photographer you are doing this for every job and not charging for the full value (1,000’s/image), you are ignoring the business aspect of your business.

    I don’t believe that agents ever do any back of the envelope calculations when they haggle with a photographer over pricing. They want a bespoke product for less than minimum wage prices.

    When I had a manufacturing company I certainly wouldn’t give a customer the molds and tooling when they purchased a product. In the same way, RE agents don’t need full ownership or unlimited rights to the photos they use for a listing. One national franchise tried to have their franchisee’s require that photographer’s sign a transfer agreement to transfer all images in such a way as to make it seem that they were intending to use the images in their advertising saving them having to commission images for far more money.

    Secondary licensing is a great way to subsidize the low prices that agents will pay. The jackpot is a new home or one that has been refurbished where several of the trades and the agent want images. With one trip, a photographer can be making images for several customers at once. With a WFH or copyright transfer, the agent can sell the images to the trades and trouser the entire amount instead of only earning a commission.

    Also keep in mind that if you transfer your copyright, you would be infringing on your own images if you used them in your portfolio without a license from your customer.

    It’s only $55 per registration in the US. A registration can be for thousands of images although there are limitations for published images initially. You have 90days to register published images making it even cheaper per image. Without registration you still have a Copyright, but there isn’t much you can do about infringements unless you pay your own attorney’s fees. Copyright falls under Federal law and case must be brought in Federal court. Copyright cases are not heard in Small Claims court.

  • @ Dave,
    “…Childhood photos with a glimpse of a home’s interior 60 years ago? …Really?”

    Yep. That’s my point – if you took the picture, you own it. That’s true whether it was 60 years ago, or yesterday. It’s true whether it’s a picture of your little brother with a glimpse of the living room behind him, or a picture of the living room with a glimpse of his elbow…or a photo of the living room with no people at all. And isn’t that a good thing, because under the notion that you’re espousing, the current owners of those houses you used to live in would have power over your photos. Now THAT’S absurd.

    “..it doesn’t take much imagination to see there’s some privacy issues bubbling to the surface. Wait for it.”

    There’s no reason to wait — privacy issues have bubbled up about a gazillion times over the years, and been resolved. There’s a large, deep body of legal precedent stretching back over decades covering issues like whether property has privacy rights (it doesn’t) and dealing with cases where the photographer was doing truly egregious stuff — like the guy who was using a telephoto lens to photograph people sleeping in their own homes, or the guy who trespassed to take a photo of a building (in both cases, the photographers’ subsequent use of the photos was deemed OK, although Benjamin Ham did get busted for the trespassing charge).

    Remember, just because you’re new to the conversation, doesn’t mean the conversation hasn’t been going on for a long, long time.

  • @Scott Hargis
    “I’ve hired many talented photographers over the years, including guys whose day rate ranges upwards of $3K plus expenses. Not doubting that they’re out there, but I’ve yet to meet one that won’t sign a work for hire agreement.”

    Your quote from my comment is above, and mine from yours is below:

    “You can get away with saying stuff like that to a group of laypeople, because they don’t know any better. But when you walk into a room full of professional photographers (like this one) it INSTANTLY strips away any credibility you might have had. ”

    Commenters here have validated my credibility by saying they will sign a work for hire agreement if the price is right. That’s all I meant to suggest.

    Are you saying you never have and never will “work for hire” or assign your copyright to an agent, regardless of the price?

    As to the copyright law, work for hire is, in your words, also an “extremely well-established and thoroughly tested and vetted” concept. You can get away with implying that it’s not to a group of laypeople, but walk into a room full of lawyers …

  • @ Joe…Wow, Deer in the headlights Part II

    Scott was right, you lost all credibility with your (non-provable) assertion when you presented it to this audience.

    And what type of convoluted logic has you gaining credibility as you put words in the other poster’s mouths? I didn’t see any saying they would sign a WFH if the price was right. Rather once Realtors were educated on the value aspect that is conveniently left out of the WFH guidance given by lawyers and had to face true market value, Realtors would back down or go running, but WFH would no longer be on the table. It takes a broad stroke of logic to conclude that “they will sign a work for hire agreement if the price is right.” It just isn’t going to happen. Being a Realtor and a photographer, I can tell you that when the price is right, the Realtor won’t like it.

  • “…they will sign a work for hire agreement if the price is right.”

    I don’t think there is necessarily anything wrong with doing work made for hire if the price is right. The problem is that, in my experience, real estate agents (and most other clients, for that matter) do not have anywhere near the budget to pay an appropriate fee to acquire ownership of the photos, at least photos of any respectable quality that might also be of value to others. In any case, as mentioned above, real estate agents do not need to own the copyright to the photos in order to obtain all the usage rights they need for a reasonable cost.

    I would suggest that, if you are going to sell the copyright, there might be a practical difference whether you do that via a work-made-for-hire agreement or as a transfer of copyright after you have created the photos, and that has to do with ensuring that you get paid in a timely manner. If you do a work-made-for-hire agreement, I would suggest that you obtain full payment before commencing the work, because it might be harder to enforce payment later on. If you retain copyright up front and then transfer it later, you can specify that the transfer will not be in effect until the client has paid in full.

    In any case, I believe that transfer of copyright should only occur when the fee involved is very large or that you are absolutely sure that the photos will never have any value beyond their current use (probably meaning they are of very low quality), and I completely disagree with the reasons Joe Zekas gives to justify work made for hire above.

    By the way, this is a forum for the benefit of commercial real estate photographers. Upon doing a bit of research, it appears to me that Joe is not a real estate photographer, or any kind of commercial photographer. His current business appears to be providing various marketing services to real estate agents and writing about the local real estate market. As such, he has no stake in the best interests of real estate photographers and is effectively on the other side of the negotiating table, where his objective is to obtain the best deal for himself or his clients, not for real estate photographers.

  • @Larry Gray. I stated that I would sign a WFH agreement or transfer my copyright. I would also charge more money than an agent would be willing to pay and also more money than regular RE usage is worth. There are certain instances where either situation is a good deal for a photographer. If I were offered a job as an assistant for a photographer I would like to learn from, I’d be happy to execute a WFH agreement for the time I would be working for them as an independent contractor. As an employee, it would be automatic unless we had an agreement otherwise. If a company approached me with a job to photograph XYZ for $NNN,NNN with a contract requiring the assignment of the copyrights, I would consider it. Photos of trademarked trade goods might not do me any good as I wouldn’t have much of a market for secondary licensing.

    I don’t photograph weddings, but I did use George Clooney’s marriage as a mental exercise regarding assignment of Copyright and releases. As one might suspect, the Clooney’s would want very tight control of the images and it would be worth it to them to pay for that. The unpublished photos would represent a tidy sum of money to the photographer, but if they licensed them to a third party they might never work at that level again so selling all rights might be the best move. Of course, it would also be wise to have a portfolio license of select photos.

    I’ve found that the easiest way to go is to use a standard licensing agreement that includes all the uses an agent will have in marketing a home and themselves for a period after a sale. There isn’t enough money in most RE work to negotiate a license for each job or even each agent/office. Presented properly, there shouldn’t be an issue with an agent choosing a different photographer over a Copyright assignment. I’ve only had a problem once and the ownership over the images was a side issue as she hadn’t paid me for the work when it was brought up.

  • If you actually ask a home owner that is listing their home for sale; “Is it OK with you if the interior photos of your home are published all over the internet after the home is taken off the market?” “Those photos show the furnishings, kids’ rooms, art, floor plan, even easily accessed windows and doors. It is known that burglars use listing web sites to case targeted homes.” “Is that OK with you?”
    They will say “NO!”
    They typically have no idea that will, or could happen.
    The only reason homeowners agree to listing photography is that it helps sell their home. There is no secondary reason or secondary market for them. And, they are not informed that the photographer may re-sell or re-license these photos to others later.
    I had an owner who had a job change affect their listing decision. They had a pricey, very nice home and they wanted to take it off the market. They asked me to make sure all the photos were taken down where ever they had been published. Looking in to it, it became apparent that that could not be done. My MLS claimed the rights and then through listing feed agreements, Zillow and many others got rights to them via a syndication feed that granted them the rights. The rights are “fed” all over the internet. As a Realtor who takes seriously the responsibility to promote the best interests of their clients… that is a problem.

  • @David Sinclair – All the points you site are illustrations that others have made above that Realtors don’t understand copyright laws. It is the Realtor’s job to educate the home seller about all aspects of the marketing of their home.

    “There is no secondary reason or secondary market for them” – Yes, there is. As others above have cited, stagers, interior designers, builders, architects that were involved with this property and even other listing agents when the home is relisted.

    Yes, the MLS rules and syndication process is a mess. As you know there is litigation in progress to fix part of it but it may not be fixed in our lifetime! So you have to advise your homeowner clients how to live with it.

  • David, as you already pointed out, it’s the real estate-related uses of photos that can potentially put a homeowner’s possessions out in the public sphere. And I’ve heard of several cases where phobic sellers refused photography and even refused to allow open houses due to an over-the-top fear of ________ (I’ve never understood that level of paranoia, so not sure how to characterize it).

    Other uses of the photos such as by builders, architects, designers, manufacturers, etc. would NEVER publish an address or a name associated with the photos – that would be both inconsiderate and counter-productive for them. At that point, it’s just a picture of a living room with some nice stuff in it.

    So yes, there are paranoid people out there. But I don’t think that an entire industry should be shaping it’s policies and customs around the needs of the lunatic fringe.

  • @David Sinclair – Sorry David, you walked into a conversation on theory, circa 1989. Silly details like right to privacy, competition dictates, antiquated government control and the folly of handwritten contracts (many attorney written too) have no place here. It’s a conversation, near as I can figure, about art. Among artists. Welcoming the new world 🙂

  • @ Dave Spencer,

    I don’t think I’m alone in saying that I don’t understand a word of your last comment. How is this a conversation about theory?? I guess Joe Zekas is getting pretty theoretical and abstract in pointing out that people will sign a WFH contract so long as it’s for more money than they could have every hoped to make otherwise (heck, Joe – as far as that goes, I reckon that roomful of real estate agents would happily list my properties for a flat fee so long as that fee was MORE than I would have paid in % commissions. But I’m not sure in what universe that sort of thing happens).

    1989? You lost me there.

    As for Right to Privacy, actually, I discussed that. So did you.
    tI have absolutely no idea what you’re trying to say regarding “competition dictates” (what does that mean?) or “antiquated government control” (what does THAT mean?!)
    Regarding the “folly of handwritten contracts” — well, again, I was discussing just that. I found that mine worked well, for me, especially when I combined it with a good old-fashioned face to face talk. But it wasn’t perfect. Still, given the low dollar amounts involved in most PFRE transactions, I think there’s more value to a plain statement of terms (and a handshake) than in a bunch of legalese and notarized signatures. Few PFRE photographers are going to “lawyer up” over a $500 infringement. The goal, it seems to me, is to AVOID the situation from the get-go (which brings me back to the clearly stated, transparent, up-front Terms of Service and EULA).
    Nearly every post in this thread references contracts and terms, as well. I’m pretty sure we’re discussing contracts, here.

    “It’s a conversation, as near as I can figure, about art. Among artists…”
    Huh? This one is really hard to fathom. Which post seemed to be about art, to you? I just re-read the entire thing, including Larry’s original post and I have to say I think this is 100% about business. You could argue (correctly, I’d say) that all photographers are artists — in this case, COMMERCIAL artists. But seriously?? You don’t think that this thread is dominated by the business aspects of commercial art/photography? If you take another read through the comments I’m sure you’ll agree with me on this!

  • @ Scott Hargis I think your paradigm is from different planet than at least 90% of the readers including myself. And, I don’t think I’d be alone in saying I wish I worked on that planet.

    But I don’t.

    I’m from Planet $200 Down & Dirt & Next. Where my photos go after the first stop is of no concern to me. My brokers have a long list of decent $200 photographers they can call. Ones that won’t give them a licensing agreement or a toe-to-toe diatribe. That’s the ‘business aspect’ I (and that 90% here, with all due respect to them) live in.

    1989? A bad year for some artists that realized that if they held out on terms the world was happy to pass them by (from a business aspect). How close to you want me to connect the dots? Apparently you -currently- have the luxury of business on your terms. And the world is round. And the sky is blue.

    Gotta go now, one of those last minute $200 shoots is calling! Happy New Year our wonderful world, Planet PFRE!!

  • Maybe it is just me, but it is hard to fathom how some of the comments are coming from actual RE photographers that are running a successful business.

    “Artists”? What kind of dig is that against those in this group? Do we take our work to the level of art? Sure, sometimes, but for myself, it’s all about business and improving.

  • @Jerry – Nothing is a dig, sorry if it came across that way. Life is good and we’re all lucky to be doing what we love! Do you have a website?

  • @Scott Hargis

    I guess I must live in a world that’s “theoretical and abstract,” but all those photographers I hired over the years sure seemed real to me. In most cases I paid far less – repeat far less – than their customary rates because they were happy to have the work and the credits in a platform that brought them to the attention of prospective customers.

    @ David Eichler
    Photography and video are integral parts of the services I provide, and I shoot a lot of photos and video.

    Does that not make me a commercial real estate photographer, even though I’d never call myself one?

    There are more, and sometimes more lucrative business models than the standard one adopted by most of the participants here.

  • I always — with every job including with repeat clients — send my client/agent a written agreement with specific shoot details including address, number of images, and price. The email (Subject: Agreement – [address]) attaches the agreement and says:

    “Dear [name] —

    I look forward to photographing this home for you and your clients. To confirm: I will meet you at [address] on [day], [date] at [time].

    Attached is our agreement. You can give me the signed copy before we start. Highlights of the agreement: the cost is $ ### for the [name] Package; you are licensed to use these images to market the home while it is listed with you; I own the images. You also may use these images into the future to promote your services as a real estate professional.

    Based on the size of this home, I expect to need about [# to #.5] hours for this shoot, and I will begin with the exterior. Please advise your clients of this time frame. Also, I will need all cars removed from the driveway. Please let me know if you or your clients have any special image requests which will help with marketing the home or planning the shoot.

    You will receive your images via the password protected area of my Web site within 24 hours of completion of the shoot.

    Thanks for your business. If you have any questions, please let me know.”

    To date, I never have had a problem with an agent agreeing to the terms of the agreement or signing it. When I make presentations to groups or to individual agents, I explain the copyright and ownership in a matter of fact way, and it hasn’t been an issue. As others have said, there’s little reason for an agent to want or pay for additional rights.

  • “@ Scott Hargis I think your paradigm is from different planet than at least 90% of the readers including myself. And, I don’t think I’d be alone in saying I wish I worked on that planet.”

    Yes, I’ve heard this before. Apparently, I work in some sort of magical place that allows me to succeed, but others can’t possibly do that because their market is so profoundly different. If it means anything to you, I started out shooting real estate for $125/shoot. Then after a year or so I raised my rates, with great trepidation, to (gasp!) $140. Eventually I settled in at $225, which is where I spent the majority of my PFRE career. Around 2010, I began edging my rates up and when I more or less left PFRE, my basic “real estate” fee was $650 (more if I didn’t like you, had never heard of you, or didn’t really want the gig). But I “made my bones” shooting 15 images for $225, up to four shoots/day. And while I was doing that, I was holding my clients accountable for the TOS language I posted above. It wasn’t hard to do. When a new agent called me about doing a shoot, I said, “You bet. Lemme email you a contract. How’s next Wednesday, 2:00pm for your shoot?”

    “…I wish I worked on that planet….But I don’t….
    I’m from Planet $200 Down & Dirt & Next. Where my photos go after the first stop is of no concern to me…”

    Well, if I could offer some un-solicited advice: there’s your problem, right there. Start caring, and you’ll find that people respect your work more. Generally, people will treat you the way you expect to be treated. There are lots of clients out there who don’t want to work with a photographer who’s functionally interchangeable with any other photographer…they want to work with someone who is different, better, more expensive (often regardless of ‘how good’) or who just carries himself above the crowd. Of course there are jerks and neer-do-wells and outright crooks out there — but every real estate agent you work with is expected to adhere to a long, long list of regulations and ethical guidelines and legalities — they are used to standards. And the vast, vast majority of them are perfectly nice, honest people who want to do the right thing. They get along just fine with the NAR, and the State Board, and the MLS, etc. Your standards needn’t be a barrier, either. There’s a way off that planet you work on, but you’re going to have to do something to get somewhere better.

    “…My brokers have a long list of decent $200 photographers they can call. Ones that won’t give them a licensing agreement or a toe-to-toe diatribe…”
    Diatribes won’t work. Just as you wouldn’t expect a diatribe to alter the behavior of a kid, it won’t work on adults, either. Better to have a CONVERSATION with them. This is the relationship part of doing business, and I think it’s absolutely crucial to success. If you can’t build good relationships with your clients, ones that include talking about terms and conditions, and money, and all the other stuff we lump into “negotiations” then yeah — you’re going to be stuck in the rat race, competing against other photographers who also can’t build good relationships.
    So don’t deliver diatribes. Instead, TALK to your clients, like adults. Respect them, they’ll respect you back. Respect yourself, and they’ll REALLY respect you back. Just think about your own dealings with the professionals in your life — which ones do you like, which ones do you really respect, which ones do you feel resentful about? Which ones would you cheat, if you could? Which ones would you give more money to, if they asked? It’s a good exercise.

    Last point — if you’re referring to the copyright act overhaul of 1989 — that was a huge, giant GIFT to artists (and other producers of copyright-able material). The “Fair Use” doctrine was narrowed drastically, and even defined to some extent, and it was no longer necessary to slap a © symbol on a photo to retain your rights. After 1989, the copyright is PRESUMED, which puts the burden on the user (infringer). That means people can’t ASSUME that it’s OK (“gee, I found it on the internet…”), but instead have to find out whether it’s OK to use a photo, BEFORE they use it. If they don’t, they can’t just say “gosh, I didn’t know that photo was protected!” That’s what the 1989 reforms did for us. I’m simplifying, but if you look into it, you’ll see that copyright, and particularly the 1989 reforms, are a very, very good thing for anyone who produces new work and wants to get paid for it.

  • @Dave Spencer, make sure you sign that work for hire agreement for your $200 so that the Realtor can sell THEIR pictures (that you took) to the next agent.

  • Sad to hear that your customers in the states are the same as they are here in germany and europe. Often times, even if you make all license facts clear in the bill, as Eric suggests, they still give the pictures as a present where ever they want.

  • I’m trying to get my mind around the value of the secondary market for real estate photography. What percentage of photos taken of real estate are ever repurchased on the secondary market? Of those sold on the secondary market, what are they worth and to whom? What percentage of a real estate photographer’s income comes from the photography session paid by a realtor and what comes from sales in the secondary market. Just wonderin’.

  • @David Sinclair – With upper-end home sales there are frequently stagers, interior designers, builders, Architects or remodelers involved. Also, frequently the listing agent that initially licensed the photos loses the listing at some point and the property is relisted by a different listing agent. All of these players in the process are possible clients for relicensing the photos.

    My guess, based on what photographers have discussed here on the blog over the years is that for photographers that actively shoot upper-end property and relicense photos the relicensing income can easily be 2% to 3% of their yearly income.

    Not all real estate photographers relicense photos. Obviously, relicensing rarely occurs with low-end properties. My guess is that only the top 10% to 20% of real estate photographers relicense regularly.

  • So, speaking for myself, after looking at the books for 2015, I have earned close to 6% with the after market use of the photos I have produced over the year. This includes Designers, staggers, contractors, landscapers and architects. That is several thousand that would have been pissed away by some of the deer here. Not me, I am in it for the money, and the fact that I love what I do….is secondary to that, I have to many people depending on me.

    Something that has not been said, but some should think about is that by holding control over your images, like I have, has not only produce a source of income, but also lead to the source of new clients. This year alone, I have 3 new contractors that do flips and renovations that now regularly use my services, all of who found me through the re-licensing strategy.

  • @Jerry Miller – Deer pissing it away? That’s seems sorta harsh and, playing with your math, I’m wondering if you’d want to quantify ‘several’. For example $50,000 X .059 (almost “6”)= $2950 (“several”). Surely your doing waaaay better than that; to suggest someone else’s business plan is so poor that they are pissing away their money? What’s with all the Big Egos on this thread?!?

  • @Dave Spencer….Just an expression Dave, chill. While you may not like the math, it is correct, yes, I do over 6 figures…

    I am not trying to boost the “Big Ego” thing, I have spent a lot of years getting here and if you want to hear what I am putting out there or not, makes no difference to me. My only regret, is that it took so long. I am trying to show/prove to those that are getting into this line of work that with the right business practices and marketing, they too can excel.

    This group is about helping….

  • @Jerry Miller “…with the right business practices and marketing …”

    There’s room for a photographer who pleases his customers by transferring all photo rights (except for the right to display in one’s portfolio) to his customers. Charge a “close to 6%” or greater premium for that practice.

    Strikes me as a winning marketing tactic, as well as a way to increase one’s income without additional work in licensing to third parties.

  • @Joe….you just don’t get it. What I charge those secondary clients for use is a hell of a lot more than I charge the initial client that uses the product for a limited time. I might charge the original client $250 for the shoot, while the designer $500 to use the same photos…. WAKE UP

    Let us be honest Joe, your tenure is with re agents, not photographers and as such lean heavily toward arguing for their/your benefit. Nothing wrong with that, but I want the newbees to know that there are other strategies that will produce a very successful career.

  • “I find the typical photographer’s approach to copyright licensing maddeningly out of touch with the realities of the real estate business and the nature of the typical real estate photography assignment.

    Real estate agents badly need to be educated about copyright, but there are only three words they need to learn: “work for hire.” The agent has provided the photographer access to the locale of the photographs, paid for the service, and should own the resulting product.”

    @Joe – I’ve never operated under a work for hire agreement, and like others on here I have sold image use from real estate photography to third parties, normally for around 3 times the original amount. Please can you clarify what the benefits are to both me and my clients for me to hand over all rights other than portfolio use?

  • Joe, okay, so you do, or have done, some real estate photography. Nevertheless, the way it looks to me online and the way you are describing yourself above, you are normally the one commissioning the photographers and using real estate photos, or working on behalf of those who do.

    “There’s room for a photographer who pleases his customers by transferring all photo rights (except for the right to display in one’s portfolio) to his customers. Charge a ‘close to 6%’ or greater premium for that practice.” There is room to do all sorts of things to try to attract business, but that does not mean these things are in the best interests of your business. I have the strong impression that many real estate photographers do not have strong negotiating skills and rely on heavy price concessions to attract business, rather than selling clients on their value. Giving away usage rights for little or no money is one such concession. There is simply no reason to do work for hire or transfer copyright without appropriate compensation in order to build and establish a good business, and a 6% premium or anything like it is far too small for transfer of copyright.

    Yes, I am the sort of photographer that Larry describes above, one of those in an expensive market where most properties are very well presented, and I am often working in some of the most desirable submarkets, shooting multimillion dollar homes (bearing in mind that, in some neighborhoods, a small condo or cottage could be a million dollars or more). But there is plenty of competition here too, and plenty of photographers with lower rates, and I still retain my copyright and license my photos to my clients according to their actual marketing needs.

    Even if one is not normally shooting homes for which an architect, builder or interior designer might want to use the photos, there is still relicensing potential to a subsequent listing agent if one’s initial client does not sell the property, as well as to the buyer’s agent, to use the photos for their own self promotion. Furthermore, while one might be shooting very ordinary properties right now, what happens when a client happens to get a nicer listing or one starts attracting other clients with such listings?

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