What Should You Do If a Client Is Not Following Your Photo License Agreement?

October 3rd, 2016

discussJennifer in Indiana has a problem with one of her clients:

I have a longtime client that I’ve worked with over the last 6 years. (She only uses me on certain projects. I’ve shot about 30 properties for her.) Although I have several package options, she always chooses the full tour/floorplan package.

Somebody brought to my attention that she has been using my photos and uploading them into another company’s tour platform, which subsequently removes any reference to me or my company. I did not give her license or permission to do this, and it clearly violates my Terms of Use and Conditions as set forth on my website and order page. I do have a fee outlined for this as an order option and on my Terms page. But, I have since found and documented at least 10 instances. I really would like to charge her. Should I sue, charge her card on file, invoice her, or let it go. (I don’t particularly need her as a client) Also had thought about reaching out to Joel Rothman, but have little experience with attorneys, fees, etc. Do other readers have similar issues? Any help/advice would be much appreciated.

 

I think your first step is to find out if she understands your photo licensing terms. Just because you have your licensing terms on your website and your order page doesn’t mean she has carefully read them and understands them. I suggest the following steps:

  1. Talk to her about the fact she is violating your photo license agreement.
  2. If she doesn’t understand, and you want to keep her as a client spend the time to explain your licensing terms face to face and explain why they are the way they are.
  3. If after talking to her you believe she understands your licensing and is violating them anyway decide if trying to charge her for her violations is worth the time.
  4. Probably the most you can do is take her to small claims court. And it is likely that winning a small claims action against her the judge would likely insist on a signed license agreement that shows she agreed to your terms (I think this is what Joel Rothman would tell you).

What do others think?

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29 Responses to “What Should You Do If a Client Is Not Following Your Photo License Agreement?”

  • I agree the first step should always be to talk. You also didn’t mention, what type of information is being removed. Is the other company removing watermarks or EXIF info? If it’s the digital information, it’s very possible she just don’t know. Most agents don’t know that information is even there, let alone how to remove it.

    So talk first, try to work out a solution, then go from there.

  • Agents talk and your name may come up in a very negative way. What are your out of pocket losses by the agents actions. Nothing right! I think you are being very petty. Lose a client over this is very bad business. Agents buy the images and think they can do as they please with them. Putting restrictions on them may turn them off enough not to use you again. Big deal they put your images on another virtual tour. Get over it. Find out why they did this and if it saves them money match the deal. At least you are being paid for the images.

  • “Big deal they put your images on another virtual tour. Get over it”

    So what you are saying, is..the agent(s) should be able to violate a license agreement with impunity.?

    “Agents buy the images and think they can do as they please with them”

    No, agents buy a LICENSE to use the images…..way big difference…

    ” At least you are being paid for the images”

    so it’s all about the money..heck with ethics..as long as you are getting paid $$ then you should simply turn your head and close your eyes etc…and let them do what ever they want with the images…right..?

  • 1st: Send a friendly email repeating your terms and pointing out where they are located on documentation that she has been provided. Let her know that you are aware of her additional unlicensed use of your images, give her a price for their use and ask where she would like the invoice sent.

    If no response, a firmer demand letter (sample below):

    ***letter removed by moderator – see http://www.photoattorney.com/ for more details***

  • I agree that the best first approach is to simply talk to your client in a friendly way understanding that very few people understand the difference between leasing photos and outright buying them. Graphic Designers generally do and certainly all people buying media in advertising do, but most people do not. And they seldom understand use restrictions. So educating our clients with follow up reminders is just part of our burden. Often they will not remember these fine distinctions.

    Frankly I charge enough that I am not really worried where or how my clients use the photos as long as they don’t pass them along to the owner or another agent. But even then then, if it is within the same agency and the other agent/realtor is also a client of mine, I don’t sweat it.

    There is a value to “good will” in business. It is hard to develop and easy to loose. And since word of mouth is our best advertising, whatever financial loss of misuse of licensed photos can be more than offset by any negative word of mouth. Which is not to say that you should not bring the infringement to the attention of the client immediately but in a nice way making it sound that you are giving them a gift in allowing the use rather than a smack for doing so. That way you can possibly head off future infractions and keep the client.

    In saying this I realize I am just repeating what others above have already said, still it suggests that such an approach may be in the majority.

  • I would call and ask if she was aware that this violates your terms and ask if she wants to deal with getting your images taken down from the site/s of would she prefer that you bill her for the additional use.

    I usually overlook ignorant comments on here but I’m going to say that the post by Dave Clark reveals 1 of 2 things. He doesn’t value his work very much or he’s very ignorant, Im not sure which!

  • Definitely talk to get first, and NOT through email. This warrants a phone call or even better a face to face. Be nice and explain what you have found and how it violates the TOS. Odds are she doesn’t even realize it. This first contact needs to be more about education than punishment. If that fails, you can always decide to take a harder stance later on, but it you go hard to start, you can’t undo that if it is taken badly (which it surely will).

  • You are a photographer, regardless of whether it is for Real Estate or anything else. Photography has standards & ethics like an other industry. I think it it be wise to abide by them. Can you imagine if Real Estate agents didn’t have practices & principles they had to follow? HA!
    I usually state my position in these matters, & either they can love me or leave me or visa versa. They will eventually fall into a rabbit hole & come back to you for some kind of assistance. Believe me.

  • I’d leave alone. If she’s a good steady client, ordering full-tilt packages, and a good payer, you have nothing to gain by insisting on complete control. Why crap where you eat?

  • The OP should pick up the phone and call her client, even before she starts asking questions on a public forum. The entire matter can be resolved in the course of a 5-minute friendly conversation.

    The notion that “it’s no big deal” is patently absurd. Being too scared of retribution if you insist that your clients pay you for your services is so weird that I don’t really know where to start refuting it.

    @ Susan Carnes —

    Your text is a near-verbatim copy of the letter available (for a fee) from Carolyn Wright (www.photoattorney.com) and is likely plagiarized from that site. I don’t know where you got it but using it (and posting it on a public forum) is probably itself a copyright infringement. You can buy the genuine letter, which doesn’t omit the important stuff, from Carolyn’s site.

  • @ Scott Hargis ~

    Thank you for the nudge about posting my letter on a public forum. I did purchase this from Carolyn Wright and I included my edits in my post above. However, I failed to point out that it is not to be copied and used without license… an embarrassing error! Thank you for making this clear!

  • This is one of the reasons I add a watermark to the images I deliver.
    Yes, it can be removed. But it’s pretty clear to anyone doing it that your violating someone’s copyright.

  • It’s not about fear or of retribution. Have you ever seen Steven Meisell’s name on a Calvin Klein ad? no, you haven’t. The reason why, is it the images have been taken to further the brand of Calvin Klein, not of Stephen Miesell, though Stephen Meisel reserves the right to show the same images on his own site to promote himself, but generally after the ads have come out, not before.

    When is the last time we saw a commercial aired that shows the photographer’s name? Never.

    Real estate work is commercial marketing the same as what I talked about above, it’s no different. The goal for our clients is to sell the house, not to show who their photographer is.

    I don’t believe photographer’s should coattail market like this. And before anybody suggests that I don’t value my work, it’s far from that. I am so busy I can’t do everything I’m asked to do, and there is no objection to price, but my terms are easy… The only thing I ask is that my clients do not see re-sell what I produce. But I encourage them to post the work everywhere that will sell that house, because THAT is the goal. 🙂

  • It must be nice to be wealthy enough and have such a huge client base you can through them under the bus based on principals and ethics. Neither of those puts food on the table or pays your bills. The more people who see my images the better it is for me because agents ask other agents who took your pictures. The only stipulation I have is another agent cannot use the same images if they get the listing or like the view images I took for another home near by. I have over 900 throw away stock images accumulated over 17 years of the area we live in that I give them away for free. Now that should make your heads spin and continue calling me names. I have managed to stay in business for 17 years and it is a good will gesture to continue working. You must have no competition that the agents are able to go to if you force them to sign something they may not agree to or even understand. I can not afford tell a client to go away if you do not agree with my principals and ethics.

  • The issue isn’t a photo credit. Whether or not the images are watermarked is irrelevant.

    The issue is this: A photographer who charges a specific fee for a specific usage, put it in writing, and had a client who failed to pay the license. Charging a fee for service is hardly a new concept, and not one that requires an apology or an “Aw shucks what’s the harm” attitude on the photographer’s part. I wonder how many of the photographers here who are espousing the “just let it go” approach would order a meal at their favorite restaurant, then order dessert, and try to get the dessert for free? “Gee, I’m a good customer, you should just waive the dessert on my bill, because I might talk to my friends about how you want total control over the food in here.”

  • What a timely question. This just happened to me yesterday. One of my local competitors is using my images in a TourBuzz tour that is of course “branded” with his companies name. And he has been doing so for some time (I just happened to be checking some listings on my MLS and noticed that one of my clients had tours attached to the listings that I had photographed for him, but had never produced a tour for him). In this case my competitor is trying to lure my clients away, he should know what he is doing is wrong. But, of course, he’s cheap. And unethical.

    I just sent my agent an email offering to produce the tours for him and explaining that using my images in this manner without my permission is not really permissible under our agreement. Awaiting a response.

  • @Dave Clark

    It’s interesting to see comments from photographers that actually are AGAINST ethics & principals, and AGAINST copyright and intellectual property protection. And all in the name of money. It’s the old “penny wise, pound foolish” irony. You greedily clutch onto clients and kowtow to them in order to get that next quick buck. But you don’t realize just how much long term income you’re losing by letting them walk all over you.

    @Kelvin Hammond

    The topic of this conversation is that the client violated the terms of the photography agreement, not about the photo credit itself.

  • Ha, just looked at Dave’s website and found an interesting blurb:

    “Only clients of ours have access to over 1000 images of the Monterey Peninsula. You can use them for a flier, ad, on the MLS or Realtor.com for your real estate listings. NEVER USE THEM ON A VIRTUAL TOUR BY ANOTHER COMPANY. Do not resale these images. If you do your are in violation of the Copyright Infringement Law. Legal action will be taken.”

    That directly opposes the position you’ve taken here. Care to explain why you are advising against protecting one’s interests here, yet you vehemently protect your interests on your own website?

  • I have never had one person sign a contract / photography agreement in 17 years and never will. A copyright can be explained to the general public without them signing anything. Telling them on my web site is not the same as forcing a signature on an agreement “Or I will not work for you” is just wrong to me. The public has a general idea what a copyright is but it does need to be re-affirmed. This explanation on my website is for the Stock Images and has nothing to do with the images I take at the listings. The agent can use my listing images on any virtual tour they want to use it on. I got paid for the images they will continue using my services it is a win win for both of us. I do not have to worry and search for my images anywhere. Why make life so stressful. Have fun take images and move along.

  • @Dave Clark, obviously this is a heated topic for many creatives [myself included], but I think a principal theme that seems to drive your perspective on this is that you do not consider your own work to have value. You let people use, for free, 900+ “throwaway” images per your own words, which, if decent at all (which they must be if anyone actually wants to use them), required equipment, education, skill, timing, and an opportunity cost to produce. On one hand, you admonish people like @Scott Hargis, who recognize the durable value of copyrighted images, as having some sort of lofty expectation of value that somehow doesn’t/can’t apply to the rest of the industry, yet you treat yourself as a day laborer in the eyes of your clients: “I got paid for the images they will continue using my services…,” and wonder why they view your work as a commodity or skilled labor that inevitably results in a race to the bottom on price or the alleged inconvenience of requiring a signed agreement. I get that real estate images often have less expectation of re-licensing than others, but even national budget-level photography operations require agreement to certain terms and conditions, if nothing else for liability and dispute resolution purposes.

    It’s your decision if you don’t want to require a contract or define licensing terms, but not outlining exactly what the client is paying for only serves to perpetuate the rampant expectation among real estate agents that they in fact “own” the rights to copyrighted images, or that the images are in the public domain.

  • Any educated realtor knows about copyright infringement. If they don’t, then they need more education. Also, if they are working with a broker, I assure you THEY know. Additionally, the MLS rules CLEARLY acknowledge copyright infringement awareness AND penalties.

    When I have contacted violators, I receive compansation about 50% of the time AND a new client! The other half just “removes” the images that some have even said ended up there “by accident”. I have never had anyone “bad mouth” me for it… LOL… how could they? “Yeah this jerk photographer wants me to pay for the images I stole”

    And, yes, they are stolen. Copyright infringement is a crime.

    Try walking into a jewelry store and taking something and explaining… “oh ~ I didn’t know”… Education would come swiftly.

  • @ Dave Clark,

    Telling somebody who is asking for advise after a client has broken their TOS, that she is “being very petty” and to “just get over it” has to be one of the stupidest pieces of advise I’ve ever heard from a professional photographer, who supposedly has been in business for 17 years. Then you advise, that if the reason was, that somebody else was cheaper, match them! Really Dave?

    Then you go on “it must be nice to be wealthy enough and have such a huge client base you can through them under the bus based on principals and ethics”. Who advocated throwing clients under the bus? Ethics and principals are a bad thing? Wow.

    As far as wealth, or client base – that is something you earn! It certainly doesn’t come from being a low price leader, who rolls over and plays dead anytime a “client” wants to take advantage of you, and that is what happened here.

    After over 17 years in Monterrey, you ought to be the biggest earner in that market, and not need to give every conceivable “extra” away for free (just looking at your website!)

    @ Jennifer

    Like most have stated here already, step number one, is to have a talk with your client. Seems like a good client as far as volume, so no need to loose her over what may simply be a misunderstanding. If the client want’s to continue using the other tour, but use you for photography, perhaps you need to revisit your pricing to make sure that you are earning what you feel is appropriate with this particular client. Charging the card on file? NO!. Lawsuits are a last resort and even then, it needs to be worth it.

    The only sensible thing Dave said here, was that Realtors do talk. You want to avoid getting a reputation for being hard-nosed and uncompromising. Having said that, you sure as heck don’t want to give everything away for free either.

  • My opinion on this subject is different then most and I do not care what you say against me. Do it the way you want. Why attack someone for not following what your saying? The way I conduct business is none of your business. I have not attacked others for their opinions or told them they are wrong. Less stress helps make life and business much easier.

  • @ Dave,

    Of course you should run your business anyway you want Dave. We all do. But, I think you are missing the point here. The push back is because your own comments. You were indeed attacking Jennifer, and telling the rest of us how wrong we are. If you re-read your 3 initial posts, perhaps you’ll see how it can be seen that way, and maybe that’s why people reacted.

    I’m with you, less stress is good!

  • I agree with Scott Hargis’s and George’s recommendations and strongly suggest avoiding Dave Clark’s advice. Aside from whether Dave is “attacking” Jennifer, I believe his advice is bad as general advice for a photography business because it is not the way most successful commercial photographers seem to operate. If that is what works for Dave, fine; however, I think he has no basis for recommending that approach as standard practice, which is what he seems to be doing.

    Note Dave’s first set of comments above. These are not merely a description of the way he does things. He actually chastises Jennifer and exhorts her to do things the way he does. As such, I do not think it is inappropriate to criticize his opinions on this matter in very strong terms.

    As for terms of use and service, I think you have to be willing to enforce them when necessary or they lose their meaning. That doesn’t necessarily mean that you enforce them every time, but I think you have to do it often enough that clients get the message that you are serious about them. If you think any of your terms or conditions are not practical to enforce, then I think you should not include them.

  • Bottom line, this situation Jennifer has found herself in requires action on her part if she wants to grow and establish a respectable business that others will respect, she needs to stand up and be counted. If she treats it like “Big deal they put your images on another virtual tour. Get over it.” she or anyone else will lose any respect and earn future transgressions from those bottom feeders that smell the blood in the water.

    One thing that I learned a very long time ago, was an Honor Code that said that if I witnessed an honor violation by one of my peers and did not report it, I was as guilty as they were (in fact it was consider a bigger transaction because I not only knew….but did not tell for the good of the Corps). Standing up and holding your ground my cost you a client, cost you some food on the table, all the crap some will say…..but in the end, you can stand tall and know, from a very long line of ethical noble men and women that you’ve done the right thing.

    So….pick up the phone, have a nice but firm conversation and get across that you are someone who stands up…

  • I think if you spend 17 years in business ensuring clients stick to your terms and conditions then you probably won’t be worried about losing the odd client for fear of not being able to put food on the table. Lots of good advice for Jennifer already, plus some pretty poor advice.

  • I would let it go — we work in Real Estate! Every agent has their own platform to market their own listings… I would let her know that this violates your Terms so from that point forward any photo shoots shes books will be at a higher rate to cover your costs. OR you could just ask her to upload a watermarked version of your photos that way you get branded as well. If she’s your longstanding client, she should understand.

  • I am dumbfounded that any photographer would “waive” their copyright… I have nothing more to say.

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