Previous Listing Agent Wants to Control How Photos of Their Staging are Used

August 3rd, 2016

StagingLisa in Texas asked the following:

An interesting dilemma came across by desk today and I thought perhaps you might have some advice. I work for a real estate team who recently got a new sale listing. The home owners ended their listing agreement with their previous agent prior to hiring us. The previous agent had paid to have the home staged. We were hired, sent our photographer out to take photos a couple of days later, and they’ve been on the MLS for over 30 days. Now the previous listing agent says that we cannot keep the photographs on the MLS because the staging was done by her. The stager did not remove the furniture in the home until a week after we received the signed listing agreement.

Are we liable to pay for the staging? To reshoot new photos at the house? She’s asking us to remove the photos ASAP and to pay her $150 to use the photographs we paid to have taken because of the furnishing in the home. I’m at a loss of what to do here.

If I took the pictures down, then I would have to pay my photographer another $150 to take new photos. Should this be between the previous agent and our mutual client? Please help.

 

Interesting question!

First of all, this is not legal advice. It’s my opinion and the opinion of my wife who is a long time listing agent.

My first impression is that this is not an issue between the old listing agent and the new listing agent. It’s an issue between the old listing agent and the homeowner. The homeowner should have gotten the stager’s furniture out before they signed a new listing agreement.

I consulted my wife who is a 30-year listing agent to get her opinion and she agrees. It is standard practice once you sign a listing agreement to immediately have the property photographed and put it on the MLS. If there is some circumstance, like some previous staging, it’s up to the homeowner to let the new listing agent know that photographing and listing on the MLS should be delayed. How is the new listing agent to know staging from any other furniture?

I think you should tell the previous listing agent to go work it out with the homeowner and if the homeowner wants the home rephotographed they should pay for it. The fact that the previous listing agent’s staging was still in place when you had the property photographed is not your problem. There’s no reason to take your listing photos off the MLS. You photographed the property with the permission of the owners.

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9 Responses to “Previous Listing Agent Wants to Control How Photos of Their Staging are Used”

  • Neither the stager, nor the previous listing agent, has a legal leg to stand on. Nor an ethical one, frankly.

    First of all, property does not have privacy rights. So the photographer, and the photographer’s client have every right to photograph the house with the staged furniture in place, so long as they weren’t trespassing when they did it (which they obviously were not). So that part is settled. Further, they can use those photos in any way they like, regardless of who owns the furniture that’s in the house. For that matter, it doesn’t even matter who owns the house.

    The stager got paid to stage a house….period. That was the extent of their deal, so far as we know. They placed the furniture, cashed their check, The End. If the contract with the homeowner, or previous agent had expired, then it was the stager’s responsibility to remove the furniture. If it hadn’t expired, then the homeowner (or their agent) has every right to show the house, look at the house, and yes, photograph the house, including the contents.

    I swear I will never understand why some agents have this “scorched earth” attitude when they lose a listing. For gosh sakes, it happens…get over it. It’s not like they never benefited themselves from someone else’s prep work on a house.

  • Scott beat me to a reply. There is no Copyright on the stager’s work and the previous listing agent wouldn’t usually be a party to it anyway. It’s too bad about the original agent. They must have done something to cause the seller to lose faith in them. If the agent had professional photos made of the home along with the staging, they were definitely doing more than average to sell the home.

    Lisa, the previous agent lost the listing and needs to move on. The demand to pay for the staging or remove your photos is all bluff and, in all likelihood, will never see the inside of a courtroom so don’t worry about it and do your best for your customer.

  • If you want to play hardball with the previous agent, you could counter with “Damages” from them because they did not remove the staging items once they lost the contract and as time is of the essence in sells, they obstructed the marketing with the new agent.

    Bottom line, the previous agent is blowing smoke out of their *** (behind) and the counter argument is just as silly.

  • Amen to what Scott Hargis said. Ken and Jerry are equally on the money.

    The whole premise is so ridiculous. The complaint has no basis in either law or commonsense. I would have been a bit strong in my response to the Previous Listing Agent but then that’s just me.

    The best advice I could give is completely ignore the complaint as if it never existed. As soon as the previous agent would step up to take action she would learn she had no basis to do anything.

  • Yet one more reason for a property release from the owner. And this time around adding. “And contents personal or otherwise owned”.
    But I agree on something although I am not a lawyer – if a real estate agent invites you to shoot a listing with the owners permission the photographer would not be responsible for this. However if a reshoot is required and the agent is a good client then perhaps if it is a one time occurance you give a price break on the two or three images that have to be reshot.

  • Suzanne,
    Actually, a property release is less necessary here than in most other situations. The homeowner would have to prove that you had trespassed in order to make the photos before they could dispute anything. That’s going to be a pretty difficult case to make, particularly when they, or their agent, has written a check to that photographer for those same photos.

    You’re probably thinking that a property release would somehow protect someone (who?) from the ire of the stager, or the previous agent…but in fact it wouldn’t. Certainly the previous agent has no ownership or “stake” in the staging furniture, and I find it HIGHLY unlikely that the stager stipulated in their contract that only one photographer could make photographs of the staging — indeed I don’t think such a condition would be enforceable anyway.

    The only time that a property release is even theoretically useful is in a “secondary” licensing situation, when the photographer wants to license the photos to a party other than the one who originally commissioned the work. But it’s important to remember that although it’s been attempted many times, THERE HAS NEVER BEEN A CASE WHERE A PROPERTY OWNER SUCCESSFULLY PREVENTED A PHOTOGRAPHER FROM LICENSING PHOTOS OF PROPERTY. Property does not have privacy rights the way people do.
    In my opinion, a property release is a useless document that serves only to freak out homeowners who don’t know any better.

  • Just to make the conversation even more interesting, below are a couple of paragraphs from the listing agreement most California agents use. Apparently, the owner assigns all rights to the broker. (Yes, I know they don’t have any rights… that’s why I am posting it.) haha

    PHOTOGRAPHS AND INTERNET ADVERTISING:

    A.

    In order to effectively market the Property for sale it is often necessary to provide photographs, virtual tours and other media to buyers. Seller agrees (or checked, does not agree) that Broker may photograph or otherwise electronically capture images of the exterior and interior of the Property (“Images”) for static and/or virtual tours of the Property by buyers and others for use on Broker’s website, the MLS, and other marketing materials and sites. Seller acknowledges that once Images are placed on the Internet neither Broker nor Seller has control over who can view such Images and what use viewers may make of the Images, or how long such Images may remain available on the Internet. Seller further assigns any rights in all Images to the Broker and agrees that such Images are the property of Broker and that Broker may use such Images for advertising, including post sale and for Broker’s business in the future.

    B.

    Seller acknowledges that prospective buyers and/or other persons coming onto the property may take photographs, videos or other images of the property. Seller understands that Broker does not have the ability to control or block the taking and use of Images by any such persons. (If checked ) Seller instructs Broker to publish in the MLS that taking of Images is limited to those persons preparing Appraisal or Inspection reports. Seller acknowledges that unauthorized persons may take images who do not have access to or have not read any limiting instruction in the MLS or who take images regardless of any limiting instruction in the MLS. Once Images are taken and/or put into electronic display on the Internet or otherwise, neither Broker nor Seller has control over who views such Images nor what use viewers may make of the Images.

  • To me, it depends on whether the staging is done with items the homeowner owns with the intention of permanent placement, of if the stager owns them (temporary design), and who paid for the initial staging (realtor or homeowner). It could be argued that some staging might be a form of intellectual property similar to performance art, so while they may not care about viewers taking snapshots of their work, it may be another thing entirely when their design is tied to commerce.

    What differentiates the design within the MGM Grand from a stager in someone’s home, especially if the stager has accreditation? No one would bat an eye at a DCMA notice from the MGM property. Is all design protected, or only when we deem it of sufficient importance, or does the creator of the design hold that right? <(rhetorical) I've heard that there are some furniture makers that reserve the right to serve DCMA notices if they so choose, especially in cases where a virtually staged property might include something iconic like a Le Corbusier, or even when their furniture is used as a prop in fashion photos.

    Giving respect to another professional is as important as anything else we do. Stagers make our lives easier. I think we should afford the same considerations to other design professionals that we claim for ourselves, should it arise.

  • Just keep in mind both agents are clients of the photographer. Sometimes listings don’t sell at no fault of the agent. I agree the staging should have been removed when the listing changed hands. As business owners its important to keep both people happy with a compromise? Giving up a few hundred dollars short term could reap thousands down the road!

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