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When And How To Talk About Photo Licensing With Clients

May 24th, 2016

ProtfolioBrady says:

I haven’t come upon this pricing dilemma before, but I’m sure its not uncommon.  An agent I work with will be the listing agent for nine (9) townhouses and has asked me to come out and shoot one of two completed units.  She intends to use the images for both listings and possibly the other 7 (as the finishes and configurations are similar) …

I’m sensing she thinks she’ll pay for the photos once and just keep reusing them.  I think there should be a per use fee associated with each additional listing, but I’m not sure how to broach the subject or what that fee should look like.  Any suggestions?

Your question implies that you’ve never explained to this client what the money she paid you is and how she is allowed to use the photos you delivered to her. Don’t feel bad, this is an extremely common problem with real estate photographers.

The photo licensing discussion:
If you never say anything to a client about photo licensing they are likely to assume that they OWN the photos you shoot for them and they can do anything they please with them. However, the normal convention for real estate photography is that the money the client pays the photographer is for a use license to use the photos for a single listing and everything they need to do as a listing agent to market that listing and that their usage rights terminate when the listing sells or is terminated.

When to talk about photo licensing:
If there never is a licensing discussion and a situation like you describe arises then it is much more awkward to talk about licensing to the client than if the discussion occurs up front at the beginning of the client relationship. But from the situation, you describe it’s better to have the discussion now than later.

How to talk about photo licensing:
As you’ll see if you read previous photo licensing discussions here on PFRE, even though licensing is basically very simple. There can be a number of different issues and situations that can arise out of photo licensing so it’s best to have a written photo licensing agreement that you can give them and have them sign during the discussion. Joel Rothman has a sample downloadable photo licensing agreement in his recent post. I also have Joel’s sample agreement in my Business of Real Estate Photography e-book. Joel, I’m sure would recommend that clients sign an agreement for each and every shoot.

My recommendation on how to handle your current situation:

  1. Download a copy of Joel’s photo licensing agreement and make any refinements you think you need for your business.
  2. Call your client and apologize for not explaining your licensing policy up front and ask her to sign you new license agreement. And take the time to explain photo licensing to her.
  3. Explain that if she wishes to use the photos for other similar townhouses that the photos must be licensed for each additional unit listing she uses them for. You many wish to give her a discount if she relicenses the photos for 9 addition units.

It is much better to discuss and clarify photo licensing with her before she decides to reuse the photos rather than after she starts doing it.

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8 Responses to “When And How To Talk About Photo Licensing With Clients”

  • We offer a 25% discount for “re-licensing” listing photos and we also place this disclaimer on our website/email/invoice:

    FASTPIX LLC owns the copyright to all images (US Copyright Act, Title 17, US Code)
    The customer/agent/agency is purchasing rights to use images in marketing one property.
    Images may not be used to market another, similar property, nor may they be provided
    to any third party including, but not limited to, stagers, homeowners, builders, other
    agents, or any print or Internet publication without the consent of the photographer.
    Photos used as cover shots for magazines and/or marketing publications must also include a credit to the photographer.

  • Most RE photography is to aid in the sale of one home and that’s what most RE photographers use as a basis for their licensing terms. When you get into jobs for developers, vacation rentals and apartments, the usage changes and the value of the photography to the client goes up. The pricing should go up as well. A developer may commission photos of 3 different model home floor plans with the intention of building and selling 20 of each model. While it could be very hard to get 20x your normal fee for one home, there should be higher licensing fee for the increased value the images bring to the client.

    For the situation outlined, I would quote the job for the two townhouses and an additional fee due for use in advertising the remaining units for a period of time starting when they are offered for sale.

    I’ll strongly agree with Larry that the licensing/usage should be discussed before doing any work for the client. Once they have the pictures in hand, they may double dare you to sue them for usages beyond what you gave them. If you aren’t already registering your work with the Copyright office, this would be a job you would definitely want to register so you have a legal leg to stand on. Without registration, you can’t sue for infringement.

  • Ken Brown is 100%. Give them pricing for both situations and copyright those images.

  • Appreciate the advice from all! Question is, can I have an ongoing contract which spans multiple shoots? I don’t always see the realtor at the shoot — sometimes other arrangements are made and I meet with the builder or homeowner, so signing a contract for each shoot isn’t practical, especially given the pace of our market. I could add usage language to the invoice, but I don’t know that that has much contractual/usage rights enforcement power.

  • I agree that housing developments and other scenarios which involve reuse of images should involve a specific contract and spell out the usage rights, but typical residential listings … one house / one listing … is it practical to being chasing an agent down for a contract on each one?

  • Brady, you don’t need signed contracts for each job, you need a licensing statement for each job that goes on the quote/invoice.

    I have a standard license that I provide for regular RE work that I do for agents. I also have several other license terms boilerplate that cover about 90% of the other work I do. If the client needs more/different usages than I have a form already created for, I craft a custom set of terms for them. I don’t require them to sign and return a copy as it is not a contract, it’s a statement of what I am selling them that I provide on my quotes and invoices.

    I can only spend so much for (blood sucking) attorneys and the one I consulted wasn’t concerned about having a signed contract for most of my photography work. Where they are important is for much more complicated jobs with exacting requirements, timelines and significant expenses. Those contracts are a statement of the work to be done and when payment(s) are due that I have gone over with the client so there isn’t a he-said, she-said argument over what I deliver.

  • I use an agreement/contract based on Joel’s. I understand that to enforce copyright infringement you need to register the images. However, what about suing based on the content of the agreement/contract? For example, for non-payment or unauthorized use? (I know that actual enforcement may be problemmatic.)

  • Dave Murray, that would be breach of contract, a matter for small claims court.

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