NAR Makes Changes to its MLS Policy that are Good for Real Estate Photographers

May 18th, 2016

copyrightYesterday Joel Rothman pointed out to me that the National Association of Realtors has recently made some important revisions to its Handbook on Multiple Listing Policy that is intended to clarify the NAR’s MLS policies to highlight the importance of licensing. Here is Joel’s full explanation.

This is a great follow-up subject to yesterday’s post about Randall being asked to by a client to transfer all rights for his shoot photos to the client. This heightened awareness of Realtors to photo licensing is probably going to create opportunities, like Randall’s, for you to explain photo licensing and specifically your licensing agreement to clients.

Some Realtors may think the best way to comply with the new NAR policies is to have the photographer transfer the photo rights to the Realtor. Of course, that’s not true. That is one way to handle it but having a licensing agreement with the photographer is another option and the best option for the photographer.

As Joel points out at the bottom of his post, if you don’t have a licensing agreement already, it’s a good time to put one together. Note that Joel’s post has a download link for his free real estate photography licensing agreement. This is the same agreement that I have in my Business of Real Estate e-book.

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24 Responses to “NAR Makes Changes to its MLS Policy that are Good for Real Estate Photographers”

  • Here’s my take, as I sit on the fence between RE photog and Realtor. I sell my images to fellow realtors at $200 a house 4-5 times a week …..big home, small home doesn’t matter, takes me almost the same amount of time to drive out to a 7000 sq ft colonial and shoot it as it does an 1100 sq ft cape. I know that they want to use these images for a) the MLS and b) possibly/probably other marketing too. (because I also sell 10M in RE a year) Here’s my point; Realtors don’t want to be restricted by how they may or may not use the images you have shot and provided them…they have too much else going on to worry about and just want photos they can USE, whether that be today on the CMLS or a postcard mailed to 1500 people or tomorrow in an ad in the local rag. Photogs who want to put “restrictions” on their work are limiting their business but more importantly, how important is that restriction? Its not like we are creating an image that might one day end up in the Met and selling millions of copies, in fact I look back at my real estate work from even 3 years ago and cringe…thats the way photo technology is, moving, fast. Intellectual property is a fine thing for many forms of photography but I don’t think mainstream RE photography is amongst that group. Im sure I’ll get chewed out by some on here that feel differently but thats what a forum like this is for right?

  • Does anyone make one “blanket agreement” and have an agent or broker sign it once… for all of the photoshoots they order now and in the future.

  • They can have them!

  • Here’s the rub; if you give away your photos you are working for less, sometimes much less.
    For example, once in awhile it happens that agent A loses the listing to agent B, and agent B wants the photos, or wants to hire me to shoot new photos. I re-license old photos to agent B at same cost as agent A. If I simply gave the photos to agent A, I have no say over what agent A does with those photos including selling them to agent B, to a home staging company or building contractor.
    I was surprised to see my photos on a highway billboard, and a movie theater add, and I am a small business in the world of photography! So this is not a “who cares it will never happen to me” situation!
    My simple real estate agreement allows me the right to re-license, and makes it clear the agent can not give or sell the photos to anyone else such as another agent, contractors, builder, home stager, etc. Also, My real estate photo license agreement is included with every invoice “by paying this invoice you agree to , , , , “; I use Quickbooks so it’s burned in the invoice memo.
    Many good references online that discuss many types of licenses including real estate and commercial where you might retain no rights to photos.

  • In response to Brad Barnson – yes, I have a blanket agreement that I have every agent sign upon or first meeting. They re-sign only if I make changes. Mine states at the top of the page: “Agreement for real estate photography sessions occurring from January 1, 2016 going forward. Agreement can be updated at any time which will require new signatures.”

    It includes services with pricing, policies, licensing and legal information.

    My licensing does not give it all away. I’ve made additional money from relicensing to builders, architects and other agents. Why would you give that away? My licensing does include use for the life of the listing plus any marketing the agent does for self promotion perpetually. It states that they may not give away or sell the images, etc. Easy enough!

    Having been an agent, I like to make it as easy as I can for them and at the same time, cover my bases as a professional photographer.

  • Alan and Tim, there is nothing wrong with choosing to “give it all away.” If that’s what you want to do, then that’s your choice. I agree that the majority of real estate shoots produce photos that have no ancillary use other than to sell the home shot for the listing it was shot for. So in the majority of situations, there probably would be no value in the future for any rights you retain.

    The flip side, as Carolyn and Steve correctly note, is that if you take the “give it all away” approach in each and every instance then you will be giving up your rights in a minority of situations where your rights are worth something. Despite what the late night TV psychics claim, no one can predict the future. Ask Josh Johnson. http://www.joshuajohnsonphotography.com/ When Josh took photos of a ski house in Telluride, Colorado in 2014, he had no idea that a year later the home would be bought by Oprah and that every gossip blog on the planet would infringe his photos. But that is what happened. And if Josh had assigned away all his rights then there would be nothing he could do about it.

    If you are coming here to read Larry’s great blog then the chances are that someday soon you will be asked to take pics of a home, a building, a development, or some other project where your photographs have the potential for reuse in the future. Copyright is designed to protect your rights to reuse so why not use a license that protects your rights to relicense your images in the future? If you never use it, no harm no foul. If someone calls one day and wants to license the photos you took last year there is nothing stopping you from saying “sure, go ahead, no charge.”

  • And do not neglect to get them registered at the copyright office as well…:)

  • It’s completely silly for us to worry about what Realtors want in regards to this… This is our business, and if you don’t have some form of control over it, it becomes a free-for-all and you will absolutely lose money at it.

    The business of Realty has rules, and the business of photography needs to have rules as well, but since we are unregulated, we have to self regulate. I tell my Realtors that they are leasing the pictures for the duration of their listing but that if they take it off the market and put it back on they may use of them again with no fee. But, they are not free to give them to anyone else or to sell them to anyone else, because, That is my job.

  • I’m no big city copyright attorney, but what’s wrong with just giving your client a license that covers all their needs (marketing the current listing, marketing their own business), and state that they are not allowed to license the images to a 3rd party without express written permission? Doesn’t that cover all bases without giving away ownership?

    Sure, one could argue that it’s a “hassle” for the realtor/builder/designer/architect/etc to have to ask for permission if they want to, for example, use one of the photos in a print ad for their company. But that’s the grown-up world, folks. Everyone has to legally license intellectual property from the owner or risk litigation. I don’t go stealing music from SoundCloud just because I don’t feel like licensing music beds for my virtual tours.

  • Alan Hamilton wrote: “…Realtors don’t want to be restricted by how they may or may not use the images you have shot and provided them…they have too much else going on to worry about….”

    Do you believe that this makes realtors unique in some way?
    Hell, I don’t want to be restricted when I spend my money, either….but doggone it, my landlord won’t let me use all the other apartments in my building, and the grocery store only lets me take the items I’ve actually paid for, and Netflix only lets me watch my rented movies for 24 hours, and Hertz expects me to bring their car back on time or they charge me more, and American Airlines charges me a fee when I want to change my ticket, and the City of San Francisco is HELLA punitive when I park too long in one space, and ….. you get the picture.

    So when a real estate agent whines about it being too hard and too complicated when I license them an image, it doesn’t really make me feel sympathetic. It makes me want to tell them to grow up.

    That said, in 10 years of shooting real estate, it’s almost never been a problem. Every real estate agent I worked with signed a contract that stated the terms of the deal, which included restrictions on image use. They were adults, they live in a world (real estate) that is utterly governed by written contracts…it was no big deal to them. They wanted to know if they’d be able to use the photos to sell the house…I said, “Yes”, and that was it.

    Joel Rothman nailed it in his response — you need to have your policies in place up front, because it’ll be too late when you discover that you need them.

  • The bottom line is any photographer can do as they please of course. If an agent wants to do anything he’d like with the photos he’s free to look for a photographer willing to provide copyright. Truth is though that the more willing a photographer is to do this, the worse the photographer will be in all probability.

    You don’t really get to reasonably ask things like that of photographers. It would be like telling the Beatles they needed to sell hard days night for peanuts just because that’s what the clients wanted. It just doesn’t work like that.

  • I think most of the replies so far are beside the point of the original messages. Yes, you should pay attention to your licensing rules with agents, but the problem is with the various MLS rules that state that the agent must OWN the copyrights in order to post photos, or that the MLS OWNS all rights to photos posted on their system, and has the right to syndicate them to other businesses.

    I’m hoping that the NAR new policy will clear this up and lead to more uniform and legal language in the MLS rules (that are currently messed up and different from one market to another).

  • I have to agree with Alan Hamilton. I’m also a photographer/realtor and my clients, in a lot of cases, are associates that I do business with. It’s important to maintain these relationships and other than a few instances when I have had my photos lifted from the NWMLS I really don’t care what they do with them. They do understand that they can’t sell them to other agents, alway ask my permission if the Sellers would like copies and realize that I own the images. As to shooting a 1100sf home taking the same amount of time as a 7000sf….hmmm, I’d love to know his secret on that one

  • @ Jay Robertson

    You’re repeating a bit of dogma that is very popular among some photographers, that somehow it’s a stark choice between licensing your work and losing your customer, or giving it all away and retaining the customer. That conveniently ignores the vast numbers of successful photographers who license their photos and yet maintain excellent relationships with their clients.

    That said, you wrote the following:
    “…They do understand that they can’t sell them to other agents, alway ask my permission if the Sellers would like copies and realize that I own the images….”

    What you just described is a licensing arrangement in which your customer has limited rights to use the photos in ways that they need to, but in which you retain ownership and the right to re-license those photos to other parties.

    Alan’s position seems a little different than yours: “…I sell my images…Photogs who want to put “restrictions” on their work are limiting their business…Its not like we are creating an image that might one day end up in the Met…”

  • @Scott Hargis I knew there’d be many on here that disagree with my point of view and I do understand where you’re coming from. You choose to put restrictions on your “work” and thats’ your prerogative. I know 5 or 6 “pro” photographers (not me, thats for sure) in my market area of Fairfield County, where homes range in value from 300K to 30M and not one of those “pros” asks any agent to sign something restricting the use of the images they sell to the “whiny” Realtors who buy them. (Wondering if the “whining Realtors” that put food on your table know what you think of them?) There are two sides to everything and I see both sides but I think agents may feel photographers “whining” about “no you cant use it here, you can only use it there” or “no you can’t transfer ownership to another agent” (which, by the way, NO self respecting agent would want to do anyway if they took a listing from another agent) just wouldn’t get their business. And what you used to compare licensing rights to real estate photography made no sense…to me anyway. The analogy of your landlord not allowing you to use the other apartments in your complex? A rental car? What about an artist that paints a picture and sells it in a gallery? Does he/she have the buyer sign a restrictive covenant forbidding him to hang said painting anywhere but in his dining room? Or forbidding him from hanging it in a restaurant where too many eyes might see it or if, god forbid, it appears in a photo someone snaps? Is that buyer then forbidden to sell the painting…at a profit? Of course not because these are apples and oranges. As much as many photographers may view their work as art (and some of it is) 99% of Realtors aren’t trying to screw anyone over…they just want to use your photographs to sell their listing and move on to the next. If its a great photo? Sure, they may wan to use it on some brochure or mailer touting the agents triumphs so that they and YOU get more business!

  • By the way @Scott Hargis….I check out your work and that IS art! Beautiful.

  • @ Alan,

    Well, certainly all analogies are flawed, and I’m sorry you weren’t able to understand the larger point I was making, which is that pretty much every transaction we (and our real estate agent clients) engage in comes with restrictions. I see no reason why I should offer terms that are substantively different in nature from every other business that provides services or intellectual property. To answer your question about artists who paint pictures, the answer is “Yes” — many times there are restrictions on how and where a piece of art is hung, and (more relevantly) whether or not it can be reproduced and distributed by the buyer. That’s been standard in the art world for many decades. Artists who aren’t very good, or who don’t value themselves very highly are obviously more likely to “give it away” than the more talented, and more business savvy artists, but in the United States we have good copyright laws that protect everyone who creates work, even if they themselves don’t seem to care. That’s because society in general recognizes that it’s in our collective interest to make sure that writers, musicians, painters, actors, and yes, even lowly photographers are able to protect their original works and derive an honest income from them. Without those protections, it would be financially impossible for many of the great works that enrich our lives to be created in the first place — everything from TV shows to novels to Broadway musicals. It’s hard for many new and emerging photographers to understand that they are part of that world, but they are, and even within the narrow confines of photography, it’s a startlingly large world. I find that real estate photographers in particular often have absolutely no connections with that larger world of professional photography, and so are often at a huge disadvantage when it comes to understanding “how things work” in the industry.

    In my 10-year career in real estate photography, in the San Francisco Bay Area, I encountered very, very few agents who weren’t completely OK with my terms. So I’ve had little or no experience with “whiny” RE agents, but when I encountered someone who insisted on ownership of the images, I politely suggested that they find a different photographer.
    Luckily, my clients, by and large, WANT to work with me, and since my terms aren’t egregious (no re-selling, no gifting, broad usage for the term of the listing agreement) they’re quite pleased. They don’t seem to be flummoxed by my contract, they don’t seem to be “too busy” to understand the in’s and out’s of working with me.

    It may be that you are working with a segment of the RE world that is operating at a different level than that of some others on this board. Ill-informed RE agents exist at every level of the market! So I don’t doubt that the experience you’re presenting is genuine…but I can tell you that even in Fairfield County, there are agents who can understand a simple licensing agreement and will be happy to work with you.

    If you tailor your business practices to accommodate people who don’t respect you or your work, then you’re going to find plenty of takers who will validate your opinion. But if you tailor your practices to appeal to clients who are used to dealing with professional photographers, and who respect you as a business person and an artist, then you’ll find that not only are there plenty of them out there, but that they’re willing to pay you much more for your work — provided your work is good enough to keep them interested.

  • @Scott I didn’t expect any less condescending a response from you (“I’m sorry you weren’t able to understand the larger point I was making”) and of course I know that major works of art carry copyrights, you obviously miss my point. You’re a good photographer, no doubt about it and I’m sure you have Realtors clamoring in droves, pleading for you to shoot their listings and willing to sign whatever you put in front of them but I know that’s not the case for many of the working photographers in this group because I continually read posts asking how they can increase their business. I have no idea how much time you put into “creating” your works of art and what your turnaround is….Me? I knock out 35-40 decent images for fellow agents to choose from and get them back same day. Are they framable? No, but they certainly beat the garbage they would come up with on an iPhone. So we’ll have to agree to disagree….you practice your art form and good for you, I have no need for nor do I want the rights to the images I provide and which will undoubtedly end up in my trash file within 12 months. Different strokes.

  • I can think of numerous benefits to not giving rights away, but I’m struggling to think of any benefit to the photographer when they give up all rights. Anyone? Alan?

  • Here’s an article that has some details on the new NAR policies:

    http://www.inman.com/2016/05/14/nar-mandates-brokers-obtain-transfer-licenses-mls-content/

  • If you read the comments below the article I posted above…. You’ll see examples of the confusion that reigns in the RE community.

  • @michaelallen – can’t read the article unless your subscribed to Inmann. Can you summarize?

  • @Carolyn
    I cannot post the entire article without violating THEIR copyright….

    Here is MLS Policy Statement 7.85 and how it has been changed:

    “The listing broker owns the listing agreement. Prior to submitting a listing to the MLS, the listing broker should own, or have the authority to cause license all listing content (e.g., photographs, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to listed property) to be published in the MLS compilation of listing information.

    “Use of listings and listing information by MLSs for purposes other than the defined purposes of MLS requires participants’ consent. Such consent cannot be required as a condition of obtaining or maintaining MLS participatory rights. MLSs may presume such consent provided that listing brokers are given adequate prior notice of any intended use unrelated to the defined purpose of MLS, and given the opportunity to affirmatively withhold consent for that use.

    “Participants cannot be required to transfer any ownership rights (including intellectual property rights) in their listings or listing content to MLS to obtain or maintain participatory rights except that MLSs may require participants to consent to grant the licenses necessary for storage, reproduction, compiling, and distribution of listings and listing information to the extent necessary to fulfill the defined purposes of MLS. MLSs may also require participants to warrant that they have the rights in submitted information necessary to grant these rights to MLS. (Adopted 5/05, Amended 5/06) “

  • Thank you @Michael Allen.

    That’s why I suggested a summary 😉

    New policy sounds reasonable to me. Curious what the confused agents are saying.

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