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Can Homeowners Claim Rights to Listing Photos after Their Property Is Sold?

October 2nd, 2017

Kelvin in Montana asks:

The owner of a listing I shot two years ago is claiming that because they remodeled a home, the property rights of the photos of the home when it was in that stage belonged to them… This guy was saying I couldn’t/shouldn’t be able to sell photos from 2 years ago because he owned the property rights at the time when the photos were taken, even though he doesn’t own the property now.

Thats the first time I’ve ever heard anyone assert property rights based on the time frame they owned it. Especially a single family non-celebrity regular type home. There isn’t anything about the home that bears a trademark signature look or style, and it was unfurnished as well.

I’m not an attorney so this is not legal advice:
It seems like an easy way around this disagreement would be to just shoot the property again for the current listing agent.

I have to agree with you that the argument that he has some rights to the photos seems crazy. My guess is that when he signed the listing agreement and his listing agent hired you to shoot the photos, you ended up with all the rights; particularly if you have a licensing agreement with the listing agent (you have a written licensing agreement, don’t you?).

However, since you don’t have a property release for the original shoot, if you are not going to reshoot the property I would get the advice of an IP attorney.

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17 Responses to “Can Homeowners Claim Rights to Listing Photos after Their Property Is Sold?”

  • I agree with Larry, just reshoot the property for the current listing agent. By the way, the photos are legally the property of the photographer, not the homeowner or the listing agent.

  • In general, property doesn’t have a right of privacy and absent a Work Made For Hire contract, the photographer working for an employer where part of the person’s duties is making photos or a contract conveying ownership of the photos, the photographer, as the creator of the work, holds the Copyright by default. I disagree that having a written licensing agreement is important, but I’m not an attorney. All of the attorneys that I have heard comment on ‘Property Releases’ have never encountered a case where it would have made an difference. It’s hard to get informal advice since attorneys have to be very careful about that or they might get sued. Rather perverse, IHO.

    It is a very strange demand from the former owner. Depending on how much hassle you want to take on, you could likely ignore their demand since once they tried to retain an attorney they might be told that any case they tried to bring would be tossed out. The attorney would probably want a nice BIG retainer up front if they know much about Copyright. Losing cases is not something that attorneys like to happen. Judges expect them to give their clients better advice and guidance and might therefore be happy to award the defendant and their counsel compensation for their time, expenses and hassle.

  • Whether he has a legal case or not, he could decide to pursue it in small claims court. In which case, if he felt he was right and felt that there are “damages” for which he can sue, he will force you to show up to court. If he files a suit against you, do you want to hassle with it?

    So the house has NO changes from 2 years ago? As a real estate agent, he/she needs to properly represent the property. If the landscaping is different (grown) or the paint is different or anything is different, then that’s certain cause to re-shoot.

    Do I think the previous owner has rights to the photos, no. Do I think you should charge the new agent money to re-shoot. Yes.

    PS. This is why legal documents are important. You can always waive that in his face and say, “I have a contract dude. I own the copyright.”

  • 1) How is this property owner even in contact with you?
    2) I’m assuming you’re reselling the images to another agent and that’s how this came up?

  • First, regarding the original premise of the discussion, my only comment is “HAHAHAHAHAHAHAHAHAHAHA”.

    @ Trevor Ward — a contract is totally, 100% irrelevant to copyright. Even if you trespassed and took pictures without the homeowner’s permission, you would still own the copyright and have the legal ability to enforce it.

  • @Dan I think the issue didn’t have anything to do with the property rights really, that was just a way to try assert some leverage… the former owner is a realtor and a client of mine, and there is some bad blood between him and the new realtor who is also a client of mine, so it was really just an attempt to prevent the new realtor from using the previous images, even though there was no substantial change to the property.

    The reason I sold the pics to the new realtor is because the pics were pretty recent, and nothing had changed. Geez I hate being caught in the middle of realtor feuds. Generally I prefer to reshoot, and I actually did reshoot most of it, there were just a couple of rooms where teenagers had moved in, and I thought the older pics where the rooms were empty were more suitable for listing the house.

    I brought it up with Larry as sort of an exercise for property rights for this forum. I had never heard of a former property owner asserting such rights, but it occurred to me that it could come up, not just for the property itself, but what if it was staged, or had a designer involved? Do stagers and designers have some sort of intellectual rights to what they add to it?

  • (Necessary disclaimer: I am not an attorney and this is not legal advice)

    To my understanding, case law is very clear on the topic of property rights, though this is an interesting spin on the concept. If the then-homeowner invited you onto the property to take photos, I believe that constitutes a waiver of whatever “property rights” might exist with respect to preventing photography while on the premises. They knew you were taking photos and that those photos would be published. In California, the Residential Listing Agreement specifically includes a release for that purpose. The homeowner also does not hold a copyright in the remodel of the property (unless it was significant enough that we’re getting into architectural plans). Case law has upheld that a designer’s arrangement of elements like flooring, furniture, etc., does not meet the standard of “fixed and tangible form” necessary for copyright protection (though a designer can generally claim a copyright in the design of a chair or other element itself to prevent others from copying that design and manufacturing it themselves).

    I see the term “property rights” thrown around a lot and it’s usually by homeowners who have no idea what they actually mean. If you took the photos while trespassing, that would be an entirely different issue. This guy permitted the photography two years ago. He has no copyright in the photos. I don’t see how his argument holds water or, for that matter, why he even cares at this point—it’s not his house anymore.

    Property release tend to be superfluous in their effect, not only because case law tends to favor the photographer in such disputes as long as we are permitted/invited to the property to photograph it; but also because the idea that we need a property release in order to make use of photos in which we own the copyright (when case law seems to demonstrate otherwise in most instances) sets the erroneous expectation that such permission/release should be necessary in the first place. However, as others have pointed out, that won’t necessarily stop this homeowner from spending the time and money on pursuing it, which will necessarily cost you time and money as well. If the new agent agrees to a re-shoot, I say go for that option as the best compromise for everyone. If not, decide how much risk you are wiling to assume.

    To clarify (and again, I am not an attorney and cannot give legal advice), I’m not sure a case of this nature would be able to be pursued in small claims court. Just as copyright cases are required by law to be pursued in federal district court, I believe if the owner is asserting any intellectual property rights his claim would similarly go through federal court (I doubt he has the time, money, or motivation to actually do this). Also, you own the copyright the instant you take the photos. That’s the law. While you should use a contract, you don’t need to in order to own the copyright and register the images accordingly. The only way you can transfer a copyright to someone else is in writing.

  • Well…..It would have been nice if we had known the Whole Story in the first place. I read it as a schmuck being a bully.

    Bottom line…. You have two clients that are fighting like kids….do you want to get into the middle of that? End up with one client at best, no clients at worst…

  • Kelvin, stagers and interior designers do not have any copyright interest in the physical designs. And property rights have no bearing upon copyright.

    An architect might have a copyright interest affecting the photos in very rare cases: buildings built after 1978 that cannot be viewed from a vantage point on public property. However, in my (non-expert) opinion, I don’t think that would apply to photos of the interior.

    Folks, reading the US copyright law should answer most or all of your questions. It is not that hard to understand, as laws go. Also, while there is not much case law yet relating to this, there is some that is relevant and seems to favor photographers in this matter, as far as I can tell.

  • @Jerry Miller I felt the reality of my situation was too superfluous to get into, but it got me thinking: really, a camera is a copy device, for the most part, we don’t create anything we are photographing, we are making a copy of what we see, and interpreting it. In that sense, one could argue that the mere presence of a camera assumes that copy’s of a property are being made, and it could be shown that the property owner is a complicit partner in that.

    But what about what’s in the property? LeCorbusier argued (and won) that his furniture was doing the heavy lifting in photos, and subsequently the Getty got rid of photos that contained images that included his furniture. In the houses we shoot, there is furniture, art, portraits, etc all of which we are unintentionally and unspecifically making copies of, sometimes unavoidably. Most of the talk I’ve read on this forum is in relation to TV screens, probably because Hollywood has made a point of posting copyright notices at the beginning of each movie.

    I have heard that with regard to “intent”, that an item within our photo’s must occupy roughly 70%+ of the entire photo to be considered a direct copy, and that less then that falls under fair use principles… although I don’t know to what % the LeCorbusier funiture was photographed, and as I understand it that was in a French court.

    But for the sake of discussion, and being prepared, it’s a great topic.

  • Kelvin,

    I think you might have misinterpreted the Corbusier furniture matter. First, I don’t think most furniture is considered in the same way as art, because of its functional nature (the same thing as the vast majority of architure. If some furniture can be treated as art, than it is my (again, non-expert) opinion that including it in a photo does not constitute a copyright infringement as long as it is not the subject of the photo. In the case of Getty, I suspect what the eliminated were photos in which such furniture was the subject of the photos, not a subsidiary element.

    I am only commenting with regard to US law. While many countries are signatories of the Berne Convention, they may nevertheless have copyright laws that can differ markedly from US law.

  • The problem with this particular case, which comes up a lot, is it’s so easy just to go reshoot the property. We’re talking about 200 bucks here, it’s hardly worth a think.

    What interests me, is I feel these photos had thousands of dollars of potential income tied to them. Then you really have a question on your hands. And, to be honest, the answer Is quite easy … you use the photos. Licensing images is how you make your living, you were given permission to shoot the property in question, you’ve got an invoice indicating the images were licensed in a “non exclusive” manner. We’re not sports illustrated photographers on salary, we need to make a living off our copyrighted images. That’s it, no need to think anymore.

  • Kelvin Hammond wrote: “…really, a camera is a copy device, for the most part, we don’t create anything we are photographing, we are making a copy of what we see, and interpreting it. In that sense, one could argue that the mere presence of a camera assumes that copy’s of a property are being made, and it could be shown that the property owner is a complicit partner in that….”

    What?

  • @ Scott H, Pretty sure you know what I mean. While we create photos, we don’t create what is before us (property, furnishings, nature, cars)… somebody else created every bit of what we point a camera at. We light it, we interpret it, we put our spin on it, but we don’t create the subject matter, we use our skills to define it. László Moholy-Nagy, maybe… but even he organized materials somebody else manufactured.

    In a way, we’re no different then Zagat. He get’s to go out to eat, but he doesn’t own the restaurant, and has nothing to do with how they prepare the food. He sells his creatively written opinion of the eatery in various forms, but he still owns his content (although I think Google bought Zagat). We don’t own the properties we shoot either, we make a visual commentary with our images, and we sell copies or exclusives, but rarely originals. Are our customers paying us for “the” content, or a copy of the content?

    The point being that photography is almost always a derivative art.

    It’s a philosophical thing. If you’ve ever read Ming Thein’s blog you’d have already been familiar with that idea. He’s a perfectionist, but realizes that a great effort has to be exerted to truly put a stamp, a singular signature to photographic works.

  • Kelvin, this was first brought up literally 115 years ago by Steiglitz.

  • @Trevor, Copyright cases are only heard in Federal court. Any story of one heard in small claims court is not accurate. But be careful, if you use a contract, you might back yourself into a contract violation if you try to be too clever with the wording. I’d still expect a small claims court judge (unless it’s a pro-tem that doesn’t know better) to not allow a Copyright or any type of “rights” argument by the plaintiff.

    @Kelvin, Fair Use is a very complex determination and a judge will look at thing like “copyrightable elements”, the “average man’s test” (would an average person find that one is a copy of the original), but there is no defined % test. What you can find are some very strange rulings that don’t seem to make much sense or create a definite precedence. Most Copyright infringements never get to court and are settled in the creators favor. They usually have a NDA with the settlement too so nobody wants to talk about any specifics. The French furniture case sounds very weird. I don’t see a photo of an item violating the Copyright or even that a functional item should be protected under Copyright. A patent would be the appropriate protection. Is is art or is it furniture? Images on a TV from programming or a movie can be a problem if a bot picks up the image and then sends out an automated DMCA notice. The DMCA is the perfect tool for “Hollywood” to have anything removed that they don’t like without having to prove anything and content hosters on the internet don’t want to spend the money to defend you, they just cave in and remove images so they don’t get dragged into anything. Movie studios are Copyrighting every frame so they can make a fuss if they want. I’d bet that a judge wouldn’t side with them, but I can only gamble a dollar right now going into the slow season and not the 100’s of thousands it might take to find out for sure. The movie houses, on the other hand, would love to have some precedence on photos showing a TV/home theatre screen with a recognizable image. Suing their customers makes them very happy.

    You are in a tight spot having two clients that have it in for each other or just the first one with some sort of vendetta against the second. I’m always looking for ways to sell secondary licenses on my photos. The hard work has been done and I have the chance of that (those) photo(s) compensating me more fully since RE work isn’t the best paying genre. You could reshoot the property or fire the first client or … you could get the first client to pay you an additional amount to not relicense the images to the agent of the second part. The one thing that you probably don’t have to worry about is having a Property Release or losing a Copyright case.

  • If you didn’t sign any contract with them saying you give them all the rights, then the rights are all yours.

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