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What Can a Real Estate Photographer Do if the Client Doesn’t Pay?

November 1st, 2017

Bruce in CT says:

This past spring we shot a home for an agent who was referred to us by one of our clients. When it was time to deliver the images, we requested a payment and since the agent was not on the shoot, we sent her an electronic invoice asking her to pay it online and the images would then be released.

She wrote me back and said she didn’t own a credit card but she was going to put a check in the mail that morning. Since she was referred to us by a large client of ours, we released the images. Needless to say, the check never arrived despite several attempts to collect it. In June I contacted her broker with no response.

I then contacted our MLS and asked for the images to taken down and was told that they could not do that and that and I needed to once again reach out to the broker. I informed the person that I am the copyright holder and since I had not been paid for the images that I am formally requesting that the images be removed. Nothing happened.

This is not super common but it seems to happen once or twice to too many real estate photographers. Here is a previous post where we talked about not getting paid. The comments have many others experiences of not getting paid.

Here are the key things to do:

  1. You have the most leverage on the agent through their broker (the manager of their office). Contact the managing broker in their office. They want to keep a good reputation and will usually take immediate action to get you paid. Don’t do this via email; either call or go in person.
  2. Typically, the  MLS won’t anything about these situations – it’s not their problem.
  3. If the managing broker of the office doesn’t respond you can take this situation to your local small claims court.
  4. This issue is why many photographers insist on payment upfront before images are delivered.

Does anyone have suggestions for Bruce?

 

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16 Responses to “What Can a Real Estate Photographer Do if the Client Doesn’t Pay?”

  • Find the host of the MLS website – start with a Whois search. Look for the Nameserver and do another whois on the nameserver. This should give you an abuse email and phone number that you can contact with a DMCA takedown notice.

    The DMCA takedown is a powerful tool, but it takes some work on your part to find the right person to communicate with. Once a DMCA takedown is issued, the host, by law, must remove the images in question and the hosts’ client has to prove their ownership of the images to get them back online.

  • Once the home is sold or the listing is removed, you lose all of your leverage.

    With the MLS, you have to send a properly formatted DMCA takedown notice and send it to their designated officer that is registered to receive those notices. If they don’t have a registered agent, they won’t be covered under the DMCA Safe Harbor provisions and may become liable for an infringement. Their attorney, if they are any good, will have given them advice on this. Just calling or writing a letter isn’t considered a legal notice so be sure to find out how to format and submit a takedown notice properly.

    Always spend a little time with new clients going over your Terms and Conditions and licensing. Follow that up each time by affixing your licensing agreement to each invoice and make sure it specifically states that no license is granted until payment is made in full. The boilerplate MLS rules and regs I have seen, and they have all been nearly the same, promise warnings and/or fines for agents that submit media in violation of Copyright.

    Small claims court is an option, but you have to take the day off to appear in court and that may lose you more money than you can recover. A letter from your attorney to the broker might get more attention than a letter from you and should cost less than the day in small claims court. Beyond that, it’s hard to force a payment that’s worth the effort. Getting paid in advance of delivery is the easiest way to handle new customers, at least initially. If the real estate office is not too far away, you can pick up a check/cash on the way to or from the job. Paypal, Square, etc. An agent that doesn’t have at least a debit card these days should raise some flags. Anyone that you are going to put on terms should have filled out and signed a credit application that includes a promise to pay statement.

  • Over the years, we have had our clients refer us to new agents for work. All of our agents know that payment is due at the end of shoot and either put a cc on file with us to charge when we do billing or have a check ready to go.

    New agents/clients that do not bother to show up for their first shoot with us (where we go over the terms and conditions we have and what they would like us to accomplish) are required to pay with a cc or have a check left at the property. If that doesn’t happen for whatever reason, we call the client to let them know that the photos are ready to deliver and we just need their credit card info to proceed. If they come up with “I prefer to pay with a check” then we just say, no problem once we receive your check and it clears are bank, we will send the photos…….. that gets their attention and they somehow find a cc to deliver.

    Note that when we get phone calls/text for work, we always insist that they follow up with an email request with full property address, timing, etc. This does a couple of things. One, it keeps us organized with multiple request coming in every day and two it provides proof of order if it should ever become necessary to show a court that service was requested. This came about where the new agent/schmuck ordered a shoot and when we went to deliver, the AH said that “Wow, I already got an offer so I won’t need the photos….so sorry” Lucky for us that we do a lot of business with that office and the manager had a little ethics talk with them.

  • RE: “What Can a Real Estate Photographer Do if the Client Doesn’t Pay?”

    It’s simple. If the client doesn’t pay you don’t do the shoot. Our policy is payment post-shoot. In other words, we get paid by personal check by the listing agent after the shoot is completed. If the agent does not plan to be there arrangements are made in advance for them leave the check at the residence. This is our standard procedure and it works very well. After I edit the photos I email them to the agent along with a receipt of payment. We provide same day delivery so agents get their photos the same day they were shot.

  • Wow! Since I wrote you about it, there has been a few additions to this story. Our MLS is going through a lot of changes with a recent merger but a few of the directors are clients and I reached out to them and explained the situation. For me it’s not about the money anymore, it’s more about the fact that my work is being hosted without my permission or a valid license to be displayed. Unfortunately, our MLS in Connecticut takes a position that this is an issue between a vendor and a Realtor® which in theory would be true had the images NOT been posted on the MLS system but since they were, I believe that argument is no longer valid and they are going to be bringing this up at the next board meeting.

    Other MLS organizations are little more ahead when it comes to this. Massachusetts, for example, is another market I work in and they have a policy that addresses this very issue. You can read it here: http://www.mlspin.com/copyright_policy.aspx. It actually has some teeth to it.

    At first, I was reluctant to rock the boat with the board, but after thinking about it and the fact that this has been a pattern with this particular real estate professional with other photographers in the area, I changed my position.

    I’ll keep you posted when / if things change – but the take away I would share with people is to make sure you have a licensing policy and make your clients aware of it. Work with your local MLS to figure out what their policies are and if you think something needs to be addressed, reach out to a board member and be a team player. So far I believe they are interested in working through this with me, especially since other boards have already addressed it.

  • Oh and one other thing I would add after reading the comments, we do usually get paid after the shoot and before delivery. We use Square so it’s a pretty simple process. Whether at the location or through a Square Invoice. This was just a fluke, but we thought since she was good “friends” and co-worker with a great client of ours, that we shouldn’t have an issue. So this would be another takeaway – don’t deviate from your own policies. 🙁

  • If the client is using your images anywhere on the Internet in violation of your usage terms for the photos, you can unilaterally have them taken down by sending a DMCA takedown notice to the Internet service provider or hosting company for the web pages on which your photos appear.

    https://www.photoattorney.com/an-easy-way-to-find-the-isp-for-dmca-takedown-notices/

    http://rising.blackstar.com/how-to-send-a-dmca-takedown-notice.html

  • Getting paid at shoots has become essential for me. Let’s just take getting stiffed out of it for a second… when you collect onsite, there’s like an entire half day I have open now because I don’t have to sit there and invoice, and then follow up on the invoices, and then follow up some more. It’s not even a question as far as I’m concerned; collect at shoot.

  • This won’t help now, but collect up front. Always.

    As for now, take her to small claims court. But here’s the kicker, with small claims, you can’t get compensated for your time on the case. You can only get compensated for the money you lost (including court filing fees and such). I’d suggest that you get to her on the phone or in person and explain that you need to get paid. If she refuses, say, you’ll hire a lawyer and take her to small claim court. Once the lawyer is involved, she’ll be forced to pay the lawyer fees if you win the case. In the claim, make sure to include lawyer fees. Have your lawyer send a letter demanding payment (she won’t pay, especially now that you’re going to try to make her pay lawyer fees).

    If you have a contract or any emails or text messages that can support your claim (agreeing to pay for services, request for services, delivery of images, etc.), get those in order. The more evidence that you have that you entered a contract and that you delivered on your end of the contract, the better position you’ll be in to win.

    I took a guy to court last year for $850. He ended up paying something like $1300 and had to drive an hour each way to the court in my county. He was a dirt bag who tried to get out of paying me. Now I ALWAYS collect up front (unless its a trusted client).

  • I had a similar situation and I wrote the broker and informed him that according to Florida real estate law all the actions of an agent (all agents are sub agents of the broker) were his responsibility and that since they saw fit to use the photos and profit from my work they must have no complaints with the work and that I would be going to small claims that day unless payment was rendered and that I would be naming the broker on the case. I had a check from the agent a half hour later. To comment on another comment, I have sent my board a copy of the “take down” law along with my request and the photos came down within an hour or so. I only do that when someone steals a photo from another shoot that I’ve done.

  • For existing clients with a track record, invoice billing. New clients either cash or check up front, or if not available, discuss hidden alternative – payment before released. I don’t publicize that so it looks like I am working with them. Also with new clients there there is additional ‘normal’ communication as I need their head and shoulder shot to set up the branded tour, so reminders that payment not received. PayPal is an instant option so it doesn’t delay delivery. While technically, there is a service charge for PayPal on business purchases, if they make it person to person it is free. Also, I build up useage of the branded tour with sharing that one with the homeowner, posting on Facebook – and encourage the homeowner to do the same, as it is like handing out business cards to the homeowner’s friends with all the Realtor’s contact information.

  • I only extend credit to repeat clients who have a proven track record of paying. For new clients I always ensure I am paid before I take my camera out of the bag. I use PayPal. I use their invoice generation and send the invoice the day before the shoot. Once I have a track record with a new client, then I am more likely to extend credit. Burned once but not again.

  • Best thing I started doing was telling clients that our system automatically sends out the download link for their deliverables after payment has been made though our accounting software. They now pay faster than ever. The only person I broke this rule with, hasn’t paid yet. Go figure, friends can be the worst too!

  • I have been there! After I finally got paid I promised that I would do EVERYTHING I could to ensure it would never happen again. I takes out the joy out of the photography to have to chase money for jobs that already been done. I am not a bank, I am a photographer! Anyhow….I had question here earlier in June about how to get around this issue. Several companies with pre pay option before delivery came up. The one that I finally settle for was Lance Selgo’s company Viewshoot (www.viewshoot.com). I have been with him since Mid June and I am SUPER happy.

    My business is solid and everything is better. Viewshoot helps you with automatic send out of email of appointments and updates to the clients, a delivery platform of your photos and virtual tours. Branded and non-branded deliver formats. Customer can pay at anytime he/she chooses but will NOT have the final product in hand until they have paid. They will get proofs when they are ready to be delivered, but the final products will only be deliver after they paid.

    Why is this important. I now have a life. My clients know when the shoot is and the cost. After I have delivered the proofs say it is a Friday (handled by viewshoot as well). Say that I am planning to go somewhere over the weekend. I can now deliver the proofs say at 4 pm and leave for the weekend and NOT worry about final delivery of the clients photo or getting paid. Viewshoot will deliver the final product set AFTER the payment has been made. So if this happens at 4:01 PM Friday or at 5 AM on Sunday morning, it does not matter since Viewshoot will deliver it for me. I no longer have to be there for the delivery or the collection of money. I can focus on being a photographer and being a Dad. Beautiful!!!

  • Not sure how the system of copyright works in the US in comparison to the UK, but if it allows for additional damages for “flagrancy” one thing that many people do over here is to mark on the bottom of the invoice “all licenses granted by this invoice are contingent on payment of the fee in full” or words to those effect. The effect is that if they do not pay, you can claim for breach of copyright and therefore an arguable case for additional damages under s, 97(2) of the CDPA 1988, rather than having to go to the small claims court and being limited to claiming the value of the invoice. As I said though, not sure if that is the same in the US as here.

  • @Peter Drought, In the US, one needs a registration to take somebody to court for a Copyright infringement and those can only be filed in Federal Court. Small claims court can be used to recover the amount of the invoice and it doesn’t require an attorney. It’s a good idea to register all images and have a relationship with an attorney and just let them send a boilerplate letter where they can also ask for an additional payment to cover what the attorney charges. A good attorney loves this sort of thing since they can have a staff person populate the letter template for them to sign and then send it off at a 90% profit margin since most people threatened with having to defend themselves in court are highly motivated to pay up quick.

    @Trevor Ward, In California, you have to represent yourself if Small Claims Court. You can’t have an attorney represent you unless they are a formal partner in your business which makes them a party to the suit. Filing against an attorney in Small Claims Court is not a good move. I believe that each state formulates their own guidelines so it’s good to check into it before threatening a suit.

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