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Summary of Photo Copyright Considerations for Real Estate Photographers

November 12th, 2017

Pat in Ohio asks:

I have been a real estate photographer for a year now. Just want to confirm who owns the rights of the photographs taken? The real estate company or the Realtor or the photographer? I have been using the photographs for my business card, brochures, website, FaceBook, and Instagram. Just want to make sure that I’m doing business correctly.

Yes, you are correct. The photographer owns the rights to photos they take for real estate agents. There are a number of related considerations:

  1. Many real estate photographers have a license agreement that defines the terms that the real estate agents they shoot for can use the photos.
  2. Many real estate photographers don’t pay any attention to photo licensing. That is, they let real estate agents do anything they want with the photos. This widespread behavior has led to many real estate agents thinking that they can do anything they want with photos.
  3. Some real estate photographers transfer ownership to the real estate agent by signing a rights transfer agreement. This is considered a competitive advantage by some agents and is promoted by some MLSs.
  4. Some MLSs claim that they own the copyright for listing photos uploaded to the MLS. This is generally not true. Joel Rothman, an IP attorney has a three-part summary of this issue (Part1, Part2, Part3).
  5. Joel Rothman suggests that if you are going to re-license photos, you should register those photos with the copyright office and have the parties you license photos to sign a license agreement.
  6. Beware when you upload photos to social media sites, you typically grant them a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to those photos. Read and understand the terms of service before you upload photos.

So there’s no one correct way to run a real estate photography business. People do it in a variety of ways. They all work.

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2 Responses to “Summary of Photo Copyright Considerations for Real Estate Photographers”

  • Keep in mind that if you assign your Copyright to your customer or work under a “Work Made for Hire” contract, you cannot use the images you have made without permission from the assignee. It also means that you cannot sell additional licenses to landscapers, cabinet makers, builders, etc and those licenses are worth more money since there is greater value.

    It’s always the best thing to establish your policy and communicate it to your customers up front so there are no misunderstandings later. You are much better off by retaining your Copyright and being generous with your licensing instead of assigning your Copyright to the customer and then deciding down the road that you want to reverse your policy. Most RE images aren’t going to be relicensed to anybody, but it’s those fews jobs where it can bring in a nice additional chunk of money that make it worth it.

    Definitely register your images with the Copyright office (in the US). It’s $55 for each registration which can be lots of images. You need to do this every 88 days (90 days is the cutoff for published images). Infringement cases rarely go to court and if your lawyer sends a letter to somebody with your Registration Number for those images, their attorney is likely to tell them to cut the best deal they can. If your images aren’t registered, you can’t take an infringer to court (in the US) so the best you might be able to do is send DMCA letters to any web site hosting the images to have them removed. That doesn’t help much if you find that your images are being used on something printed such as a calendar or packaging. Chances are that if you can’t show a registration, those infringers will just ignore any letters you send them since there isn’t much you can do about it.

    BH Photo has a video on YouTube by Ed Greenberg and Jack Reznicki on Copyright for photographers. Jack and Ed also have a training video on KelbyOne that is pretty similar. It’s a good place to start learning about Copyright. Your photos constitute your company’s long term assets. There is no telling which ones could be worth big bucks sometime down the road, so it’s a good idea to make sure you aren’t just giving them away.

  • Great topic and advice for the day! Thank you guys!

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