Do Real Estate Photographers Need to Ask For Permission to Use Listing Photo For Their Own Marketing?

October 17th, 2016

discussSummer in California asks:

Do I need to ask permission from the realtor, or homeowner to use the photos I take of their listing for my own marketing (website, social media, mailers, etc.)?

There are two parts to the answer to your question:

Photos taken from a public place (like a street) do not require a property release from the owner see: the PhotoAttorney.com site.

For interior photos the ASMP recommends the following: Look at the photograph and ask these questions:

  1. Could the owner of the property in the photograph be identified by anyone just by looking at the photography of the property?
  2. Is the photography to be used for an advertisement? (in law, “advertisement” is very broadly defined.)
  3. Is the photograph going to be used for commercial purposes, like a brochure, calendar, poster, website or other use that is intended to enhance business interest?

If the answers to #1, #2 and #3 are no then you do not need a release. However, according to Photoattorney.com case law relating to property releases indicates there has never been a case that has shown the requirement for a property release. For this reason, many real estate photographers don’t bother with property releases.

However, I think there is a good argument for using a property release just for the purpose of being courteous to the homeowners. Many people get very sensitive about their personal space.

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7 Responses to “Do Real Estate Photographers Need to Ask For Permission to Use Listing Photo For Their Own Marketing?”

  • Summer, You own the Copyright to your photos the instant you push the shutter button unless you have executed a Work Made For Hire contract (not recommended) or are an employee where making photos is part of your job. I’m going to assume that you are working for yourself. You are licensing your customer to use the images you provide them for a specific purpose, in a specific place(s) and for a specified period of time. You may use your images in any way that you see fit without having to consult your customer. There will be specific instances where you may want to wait before using some images or not use some images out of respect for your customer’s customer’s privacy. Legally, they are your images to do with as you please. I have images from my journalism work that I will likely never release.

    My advice is to keep control of your images so you have the option of reselling them to third parties. If you are lucky, you may get jobs where the listing agent, the contractor and the stager all want photos. The agent might be getting a set of 20 photos to sell the home for $200 and the contractor and stager are paying $100/photo for their licenses. Since the contractor and stager are going to get more “value” from the images, they should be expected to pay more for them. This means that you can make $1,000 or more on one job if enough people are interested in photos. If you assign your Copyright to the agent as a matter of course, they get the money. More likely, they won’t be sub-licensing the images at all. As a photographer, you are in a better position to resell images.

  • Two ways to sell images – Work for Hire (you don’t own the rights to the images unless you write it into your contract that you can use the pictures for your own marketing) and Licensing the image to your client for marketing one property one time (or however you write up the license). No matter what you do – it should be very clear up front in an agreement or a contract who owns what rights/licenses and who can do what with the images. If you don’t carefully state this – even if you think you own the copyright – misunderstanding can happen and you could lose not only one agent – but a whole office of agents.
    My suggestion is never, ever take an image for money without clearly stating ownership, rights, licenses and what can be done with the images.

  • Suzanne has it partly right, but partly wrong. First, there’s only one way to sell an image, and that’s to….well….SELL it. That could happen under a work-made-for-hire contract, or it could be a Transfer of Copyright agreement.

    Licensing is completely different from selling.

    Transferring the copyright is not so simple as the photographer just “deciding” to do it. It requires a formal agreement signed by both parties, containing specific language that conveys the copyright from the author to the new party. From a practical standpoint, it would be nearly impossible to accidentally, or casually, transfer your copyright. If you are an employee and photography is part of your job description, then your photos might fall under “work-made-for-hire” but even then there are large exceptions.

    What Suzanne got very, very right is that you have to put your terms in writing, every time. Never, ever work without a contract, and make it clear who owns what, who’s getting what rights, how much it costs, and what it is that’s being conveyed.

    As for the OP’s question — property does not have privacy rights. While it’s true that the ASMP is extremely risk-averse (some say “paranoid”) and recommends a property release, there are no known instances where a release was ever needed, and there’s plenty of legal precedent protecting photograhers who licensed and used their photographs (of private property) in ways that many of us would consider egregious. In the case of real estate, it’s good to remember that the people who own the property at the time that we photograph it are almost certainly NOT the owners of the property at the time we license it out to third parties (because they sold the house, duh). They no longer own the property, and thus would have a hard time establishing “standing” in the event of a complaint. Ditto for the new owners — can you imagine trying to exert control over photographs of your house that were taking BEFORE you bought the house?

    So use your photos. Put them in your portfolio. License them to the stager. Post them on Facebook. It’s OK.

  • Work made for hire does not involve the photographer selling an image, because the photographer never owns the image under work made for hire. Of course the photographer needs to negotiate a fee in order to agree to doing work made for hire, and this might seem to be a distinction without a difference. However, there are significant differences between agreeing to do work made for hire and a photographer selling the copyright, even if the end result in both cases is the client ending up owning the copyright. I think that one major difference is that it is easier to ensure getting paid in a timely manner if you sell the copyright (versus agreeing to work made for hire) and specify that the transfer will not occur until the invoice has been paid in full.

    Scott Hargis, have you obtained a legal opinion about how a transfer of copyright needs to occur? My understanding was that the transfer only requires a written document from the copyright holder.

  • Does one need legal jargon in a contract for it to be binding? Or can one write-up/define the conditions under which the exchange of services for pay take place? What I’m asking is, must I hire a lawyer to produce contracts for me? If so, are there any recommendations on lawyers which specialize in this genre of photography?

  • @Mike – My business book (http://photographyforrealestate.net/business/) has a licensing agreement written by Joel Rothman (http://www.sriplaw.com/). It is a good example of the kind of things you need to include. Also, Joel does a lot of work in this, he has represented many PFRE readers.

  • Thank you Larry! I picked up the book. I’ve been photographing real estate for the past six years. A handful of instances where the client expectations differed from what I delivered. This led to costly re-shoots and delays in payment (with an unenforceable late fee). I hope these topics are addressed.

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