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Can Previous Listing Agents or Homeowners Control the Use of Your Real Estate Photos?

January 16th, 2017

Jim in New Mexico asks the following question:

I recently shot a home for a new broker who just got the listing. Since I photographed the same home 1 year ago for another broker and the previous seller, I felt compelled to use some of the previous summer season shots of the yards. All interior shots were new. I received an email from the old broker telling me the old seller is demanding I immediately take down the photos because 1. they are hers; 2. the pics contain their outdoor furniture and art; 3. it is false advertising.
I am really concerned about number 2: the fact that the photos contain the old sellers property (nothing valuable) and using them for the new MLS listing. Am I in the right to use them for the new agent with the old sellers stuff?

First, this situation suggests that you need to be explaining photo licensing better to your clients. That is, your clients need to understand that photos are not theirs. You own the rights to the photos and you simply license them to use the photos for marketing for the duration of their listing.

I’m not an attorney and I don’t give legal advice but you are probably completely legal reusing the summer photos as you’ve done. The previous listing agreement and your agreement with the previous listing agent gave you permission to shoot their lawn furniture and you own the copyright. But it’s not worth the time, energy, or money to legally prove you are RIGHT. Better to retain good relations with clients.

I would take down the photos so the previous seller is not upset and move on. But I would explain your photo licensing agreement to the previous client. You do have a photo licensing agreement, don’t you?

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14 Responses to “Can Previous Listing Agents or Homeowners Control the Use of Your Real Estate Photos?”

  • After viewing Scott Hargis’ video series on Lynda.com, I do now! And he provides a sample agreement in the course to which you can model in makinv your own

  • I think if you politely explain to people that you actually make a living off your images and pay for your kids’ education by way of avenues like relicensing your images that most clients would understand. Explain that if you were on a company’s payroll and getting a monthly salary it would be different, but as a freelance photographer you’re compelled to use the images you make to market and provide income for yourself.

  • Congratulations guys, quality information you have given!!!..Its really useful blog. Thanks for sharing this useful information.

  • #1 and #3 are easy, and actually support the resolution of #2. #1 is the rude awakening that her premise is false – she doesn’t own the photos PERIOD, and depending on licensing agreement may not even have a right to possess them. #3, in realtor speak, lawn furniture and artwork typically are not attached to the home and do not convey. Essentially, it is not false advertising when the articles are not expected to remain with the house and buyers could care less who the actual owners are while having the expectation that the owners will take them with them. #2 is simply a lightning rod for a power play, but since it is not attached to the house to convey with the house, you are free to remove them with 5 minutes in Photoshop and the whole argument collapses. If it won’t cleanly clone out, their brown outdoor furniture is suddenly olive green or white and the artwork is replaced with a garden gnome stock photo or some other artwork of nominal value. Likewise, wouldn’t put high end artwork, such as Chihuly glass, in the garden even if it was a high end home as that would create other issues as potential buyers demand that it stays.

  • I’ve always said for the few times someone steals my photos, I’d would ignore it and keep looking forward. All that said, I think maybe it’s time to post a licensing agreement on my website. If anyone has a sample it would be much appreciated.

  • Sounds to me that the old seller is asking to upgrade to an exclusive license. Do like Larry said, but charge them for it.

  • Hey guys, I explain usage and licensing in each and every download. I believe after 25 years in the business most of my clients understand. I also say in my delivery of the photos that when they download the photos they agree to all terms and conditions. I resale my photos often am make a decent amount added to my bottom line. Make sure all of your clients are aware of the “limited” usage of the photos for real estate and also that you own the photos at all times.

  • Larry, thanks for posting this question. I respect this group and have learned alot over the years! Good point, about “You do have a photo licensing agreement, don’t you?” Yep, in 3 places: 1. website; 2. delivered with every email containing the links; 3. on my store when they pay they must check a box saying they have read and understand the terms. Is that enough??? Apparently – not even close! Taking the high road by photoshopping pots and furniture out and even removing the images from the MLS is not enough to keep some sellers from dragging your agent client through the mud… with emails threatening followup actions like going to the real estate commission, their QB, the current home owners… etc. etc.. Of course I have rights, but what agent is going to say amongst all the other 50 pages of listing legal ease – btw the photographer may someday relicense your photos, are you OK with that? I read a great PFRE post the other night at: http://photographyforrealestate.net/2015/12/29/explanation-of-real-estate-photo-licensing-for-agents/ where Scott Hargis gave an excellent explanation of how to verbally and contractually prepare brokers for the shoot. So in order to ramp up training for agents I am going to include the name of the client and clients firm in each order copyright I deliver, and something interesting my college student son brought up about breaking out the license from the shoot as a separate product (but covered in the same fee). So I might book a “Proshoot + Single Use License” instead of a “Proshoot.” Actually offered to sell the home owner the copyrights (which I do not normally do) but the old broker said if this did not go away she might need to buy the copyrights. Bottom line. you have to say it ALL – everytime, to all parties because NOONE seems to understand how copyright and licensing works.

  • Here is link to the Art Law Journal download page:
    http://artlawjournal.com/download-artists-licensing-agreement-free/
    It’s got free downloadable agreements as well as the legal information to give to clients in case of a conflict

  • Legally I don’t think there is anything either the seller or the broker can do to prevent you from using the photos. There are your photos and were taken with their permission. That said, there is more to this than the legalities of using the photos. There is a potential downside to placing your client in the middle of the dispute. I would do you best to assure that does not happen. In the end, is using the photos worth the trouble?

  • The money light bulb just went on. I am going to re-tittle my order form to be “licensing agreement” and as one of the options they can select to purchase full ownership of the photos.

    steven

  • Jim, You own the photos and your original customer was the previous agent. The previous owner has absolutely no claim what-so-ever to those photos. Even if the artwork in the images was their original work, it’s incidental to the entire composition and not covered under Copyright restrictions.

    You need to talk with each of your clients about Copyright and licensing up front so they know how it works and can talk intelligently to their customers when this type of issue comes up. I try to limit “sharing” by telling agents that I charge more for uses other than for listings and pay a commission for referrals. My reasoning is that they will be motivated to send new customers to me instead of giving my work away if there is money in it for them. I also emphasize that I may resell images to third parties. I don’t reveal the address of the property or the owners (new or old) to any licensee. So far I have not had any issues at all.

  • If you are contemplating offering a buy out option, it should be for a large sum of money. Chances are not high that you will license images from any one property, but if you give away your rights to your images the chances are near zero that you will be able to make any extra money.

  • Ken, that’s a positive approach to teaching realtors and making extra cash, I like it! I have definitely been leaving $$$ on the table by not finding cross-licensing platforms for my images. The overriding message here is protecting my rights and my client while finding a balance where a past owner who really has no interest in caring about copyrights is not infuriated. Educating the broker community verbally “with a firm handshake” is at least as important to having it in writing. Rebecca, thanks for the link! Definitely some items in there that I have not thought about!

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