The Listing Photo Ownership Contradiction

May 25th, 2009

Here’s the basic contradiction:

  1. You are shooting photographs for a real estate agent to use to market a home on the Internet.
  2. To do a good job of marketing a home on the Internet the agent and their broker must syndicate the listing information and photos to real estate portal sites.
  3. Syndicating to real estate portal sites means the broker must sign an agreement to convey ownership of all the listing information and photos to the real estate portal.
  4. If the photographer insists on retaining copyright to the photos, then by signing such an agreement the agent is in jeopardy of being guilty of contravening an agreement that they or their broker has signed.
  5. More likely, the agent has no idea that her broker has signed an agreement to convey ownership of all listing information and photos to real estate portals.

What’s the solution to this contradiction? What you as a photographer want is to make sure you are paid again if someone other than the listing agent uses the photos again. I’m having trouble thinking of any solutions to this problem that would not require the agent and/or broker owning the photos. I suppose someone with deep pockets and time on their hands could try to change how real estate portals operate, but they operate this way to protect themselves legally.

This contradiction is probably what lead Open2view to their policy of conveying photo ownership to the agent. On my last post on this subject back in Nov 2008, Eric Chase, of Open2view summarizes the problem and their solution nicely:

The MLS rules and for that matter agreements with most real estate portal providers around the globe [that we or the agent or the real estate agents office uploads images to] have clauses in them that give the portal owner control and ownership of the images once uploaded.

So if a photographer wants to argue the toss on ownership they are effectively putting their client in jeopardy of being guilty of contravening an agreement that they or their broker has signed, [more than likely] without the agent being aware of the detail in the agreement!

It is not the policy of Open2view to put their clients in a position whereby they could be in breach of an agreement or contract signed by their broker which they as agents of the broker are contracted to abide by.

This is not a 100% satisfactory position to be in but it is a pragmatic one. The reality as pointed out in one of the responses above is that the images are in most cases compressed quite a bit to go on to these other portals that there is not much left to rip off anyways. There are two ways to look at this, as an infringement of our copyright or as a compliment to our excellence.

Branding each image is always a great way of promoting ourselves but then there are portals that insist on no branding on the images. I wonder why??? Because ab lot of them then them on sell their data and images, ours included!!! Great promotion if you can get it through, though! I have often seen our images on other portals with the Open2view Logo on them and personally think it’s all good for business!

I think this problem is pretty much been ignored (other than by Open2view) because photographers have not understood the agreements that brokers must sign to syndicate listings and agents typically don’t understand the licensing of photographs or the agreements their brokers sign. And this issue probably hasn’t been litigated yet.

It looks to me like Eric is right, the most pragmatic way to deal with this problem is raise your prices a bit to cover other possible uses of the photos and convey the ownership to the agent.

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26 Responses to “The Listing Photo Ownership Contradiction”

  • Larry, I don’t see how conveying ownership provides us with any benefit. There’s no way any of us will be able to raise our rates to cover this and still get work.

    The other side of the coin is this: how often, and for how much, is our work resold? Aside from control of our intellectual property, is there really that much else that we lose by conveying ownership?

    Here’s a little something to consider: if we go ahead and convey ownership, would we be violating copyright law by posting those images here?

    Something else: which of the portal sites demand ownership of images? If it’s more than one of the major ones, that legally precludes any more than one of them getting the images. It also means that if an agent puts “his/her” photos on a site that takes ownership, the agent has no right to post the photos anywhere else without the permission of that site.

    This situation is a huge mess, and one I’m sure will require litigation at some point. Wonderful.

  • John- “It also means that if an agent puts “his/her” photos on a site that takes ownership, the agent has no right to post the photos anywhere else without the permission of that site.”

    The agent doesn’t physically post images on these portal sites they are electronically distributed via agreements with MLSs, and broker sites and sometimes syndication agreements with the more tech savvy agents. Most agents don’t even understand that it’s happening or how it works.

  • …just as they don’t understand our ownership now.

  • I don’t think this is a big deal, and the subject has been done to death before, both here, and on the Flickr group.

    If people cannot accept the fact that this is what happens in the real world, then I’d kindly suggest they look for something else to do. The R/E portals have it all sewn up, in their favor.

    At the end of the day, we are only shooting property for sale, and the pictures have a finite life to begin with. Let’s not get too precious about what we do.
    You are not shooting for the cover of Time magazine.

    “What you as a photographer want is to make sure you are paid again if someone other than the listing agent uses the photos again.”

    If you are trying to get paid more than once for the same set of photos, then haven’t we learnt anything in the last 12 months???
    Greed, and mainly in the USA, is what lead the entire world into this economic disaster. I acknowledge that some Americans may have a hard time coming to terms with that fact, and I don’t wish to rub salt into the wound, but the rest of the world is not amused.

  • Harold, I’m sorry to say but I have to disagree with you. If a photographer takes beautiful images of a luxury home, worthy of editorial use, I’m sure there are plenty of publications out there that would take advantage, not to mention a host of other businesses in need of photographs for marketing purposes, like a real estate agent for instance…let’s not be foolish….I think you have it backwards…the greed that you should be referring to is the greed by the people trying to use your creation over and over and over again without compensation, not the photographer trying to earn a living and being justly paid for his or her work…usually a royalty is involved for a stock image….some sort of royalty should apply to this situation also….by the way I’ve never met a photographer pulling in 5 million per year doing real estate photography work like some CEO’s, let’s not get all anti-American about every business or line of work out there….free enterprise, that’s the beauty of America, the sky’s the limit….and I’m as liberal as it gets…but I like making money…

    PS-I’m not an American as of yet, but I am thankful everyday of my life I’m here…..ESPECIALLY on Memorial Day! God Bless the men, women and families of the United States Armed Forces! Thank you for your tremendous sacrifice!

  • I know my MLS does not take ownership of the photos. The agent or photographer does, but you do have to grant them the right to syndicate the photos through IDX and such. In my MLS, ownership is not conveyed. Just some rights to distribute the photos are given.

    Agents are not allowed to take another agents images. So if a listing expires, the new agent can’t use the other agents photos.

  • I have no problem with MLS using the photos for the current listing agent for further publication as the front image only is used and not the interior shots. In the new year the local MLS initiated a policy that the front image would stay on file but the interior images could only be reused by the original listing agent. This is much like Melina’s comments previously. The MLS process here also resharpens, resaves and reuses the front in a subsequent listing giving a pixilated effect. The seller does not like this reused image and has the agent arrange for a new photo shoot. In the end I am getting more business as I have shot many a home two or more times over the years.

  • Like Larry’s article says, this is a knotty subject. I think the best compromise is to educate our clients about ownership. If they have to release ownership to the MLS then we must accomodate them, otherwise the photos are of little use to the agent.
    But other agents usintg the images to sell the same house, to decorate their website, or to give away to the home owner is usage we should be compensated for.

  • If the problem has been ignored it isn’t a problem because nobody really cares. The photographer gets paid for the photos and grants rights to use those photos for marketing of that property until it is sold. He does not care where the photos go. Unless they are used for something else but selling this property. Don’t create a problem where there is none .. at least not in the real world.

  • I tend to agree with “Reader”.

    Whether or not an agent might or might experience complication with a syndicate or MLS because of their ignorance of existing agreements is a non issue unless and until those agreementes are enforced.

    The fact is that those syndicates probably include an “ownership grab” to cover their tails in the event a copyright holder (us) asserts an infringement of copyright claim against them. With the ownership transfer language in place, they can simply point to the agent’s (/broker’s) statement that they had ownership to transfer in the first place to themselves off the hook, and put the agent/broker on it.

    Since we hold the copyright, the decision of whether to pursue the matter against our client would be up to us.

    In the unlikely event this does become a problem, we might simply transfer ownership, and retain (via language in our contract) transferable, unlimited license to use the photos we created.

  • Photographers own the copyright of their images upon creation. Agents/brokers cannot give those rights away to any third party. I think it’s weird that these real estate portals would enter into an ownership agreement with people who don’t generally own the images.

  • The idea that the photos we make are commodities that should be “sold” once and forgotten by the photographer is at best ignorant, and at worst, foolish.
    Ignorant, in that photography has never operated that way. I have licensed the same set of photos multiple times in many instances. Users include the RE agent (that’s a fee), the Interior Designer (that’s another fee), the Builder (another fee)….you get the idea. That doesn’t include the possibility of licensing to another RE agent later on when the listing has changed hands. That last possibility is pretty rare, since besides the fact that the place will likely be re-staged and re-landscaped, there are loyalty issues with my original client. But still, it happens, and I’m not willing to give up the potential for that revenue.

    Harold may not be shooting for Time Magazine, but there are plenty of RE shooters who do shoot for magazines all the time. My RE shots have been re-published in newspapers, magazines, and even in TV spots – and I’m simply not willing to let everyone else ride the bus for free.
    There is no genre of photography that I’m aware of that doesn’t depend on the photographer’s ownership and control of his/her own work.

    The various RE portals don’t need ownership of copyright to protect themselves. We as photographers could easily add language to our EULA’s to include unrestricted usage on those sites, and I’d be willing to do so, as long as the copyright remains with me, and the licenses were non-transferrable.

  • Great discussion and good ideas! Perhaps a good solution would be to as Scott says, to retain copyright and grant the agent “unrestricted WEB usage related to the CURRENT sale of the property”.

    Here is a great example of something you’d want to protect against:

    And here is another:

  • I see no problem here, if MLS needs to have control of the images, just give them a license to cover their needs. That way you still own the image.

    If they demand to have all ownership of the image then charge them the big bucks for the images, they may Chang their mind and say a license will be sufficient.

    You can call me crazy, I never sell my photos out right, never!

  • I see no problem here, if MLS needs to have control of the images, just give them a license to cover their needs. That way you still own the image.

    If they demand to have all ownership of the image then charge them the big bucks for the images, they may change their mind and say a license will be sufficient.

    You can call me crazy, I never sell my photos out right, never! Wel maybe if the price is high enough, into the multi thousands (:>)

  • I regularly shoot images for two clients at the same shoot and the images are licensed accordingly. Real Estate shoots I am conscious of the fact that they will turn up on Trulia and other portals and there is little to be done. It falls under the umbrella of marketing the property and is to be expected. I doubt that trulia or the MLS is going to give away useful images to interior decorators, builders or any other person for that matter. I typically get a call from the agent or the designer inquiring about copies of the images for which they realize there is an additional fee. One sticky area is editorial in RE magazines … where in many instances the agent pays for the article or cover and then supplies the images to the magazine. Ys it would be nice to get paid for the use of those from the magazine but then if they had to pay then they would simply solicit another agent. What irritates me is that in most instances there is not even a credit – more often it sais images supplied by whoever brokerage. I have to look at this as marketing for myself though. If the magazine can routinely go those agents knowing they have some great images then it keeps the agent coming back to me. If the article is more general then I look at from the stand point that it is helping to market my town and hopefully that means more business for Real Estate overall and I will then have to market myself to get more of that business.

    M. James

  • […] and Read More: photographyforrealestate.netSHARETHIS.addEntry({ title: “The Listing Photo Ownership Contradiction – Larry Lohrman”, url: […]

  • It seems to me that this hasn’t been a real point of contention yet because none of the parties want it to be.

    1) Agree that most agents probably don’t know about this conflict. Even if they did, their only solution is to outright purchase the copyright, which is always more expensive than licensing.
    2) It seems to me that most MLS rules are in place to protect agents, and this may not be an exception. The MLS doesn’t care about revenue from the pictures, they only want to make sure that Agent A isn’t using Agent B’s pictures. If Agent A does steal pictures, the MLS has many ways to punish him/her without going to court. Acquiring the copyright is probably a legal CYA measure, but they generally don’t really need it.
    3) As a photographer, my main concern is that I retain the opportunity for future revenue based on the photos. As long as the MLS is not attempting to sell them (and doesn’t come after me if I do) then I’m happy with the status quo.

    If any of those positions change, then there could be trouble. And unfortunately the MLS probably has far more power than the other parties.

  • As things are now, we license our photos to the agent (whether they’re explicitly aware of this arrangement or not) and he/she uses them to market the property in question. It’s never a problem for the agent to post the images at the portal sites. If there were an easy way to track the use of our photos online, it would be a trivial matter of contacting the portal sites with cease and desist messages. In reality, this is nearly impossible.

    I think Jake presents the status quo most realistically, and this will rarely be an issue. For now.

  • I have run into this many times. I see my photos and tours on many agents websites and I understand the reciprocal issue. I don’t have a problem with that if, when the listing sells or expires, they remove them and trash them. But, that doesn’t always happen since most agents don’t understand copyright law.

    A few times, I have actually had agents pick up a listing after it expires and post my pics and tour link on their new listing!! I contact them and inform them they don’t have the right, etc. I’ve never had anyone not remove them.

    However, the biggest problem I have is seeing community pictures, such as signs, clubhouses, golf courses, etc., being reused by other agents. I see them in ads, flyers, in addition to MLS and their websites.

    I contact them and tell them they don’t have the right, but the image has already been used. Whether they actually heed the copyright talk and don’t use them again, I don’t know and unless I happen to see an ad or a flyer, I won’t know.

    I do see the potential for litigation for this issue. I don’t see how MLS can claim to own the intellectual property in their database, when the agent who posts the images on the MLS site doesn’t own the images to begin with and therefore can’t transfer ownership to them or anyone else.

    I am going to start using a copyright symbol for MLS images from here on. I just wonder if the local MLS will contact me to tell me I can’t do it.

  • Does anybody use Digimarc watermark filter in Photoshop? I’ve used it in the past, and they have a system that crawls the web looking for images using this digital watermark. If you pay the subscription, you can use this service to search the internet for your images. Using the watermark for free though, you will at least have proof of ownership if you happen to come across your image. The watermark survives editing and printing.

  • re Digimarc, I tried it ages ago and you tend to get a lot of noise and such-makes the photo look ugly.
    re copyright, I have to say when you get photographers that don’t see the value of their own work, why are we surprised when agents don’t either.
    It’s not greed Harold-it’s what value the photo has. If you want to give your shots away, that’s fine. But don’t call people greedy when they try to get money that is owed to them.
    I’m in another country, where a number of us are getting a legal action together as we speak. This company is not like Mls but more like Zillow. They see the value in our pics, because they are using them and charging people for the privilege.
    I totally agree with Scott. These portals don’t need copyright sighned over to them, they are using this backdoor way of getting something for nothing and then reselling it.

  • The only way to sort this is litigation/and or agents put pressure on these sites to change the wording.
    Or (wouldn’t it be nice) get a site setup and owned by photographers where the agents put the properties up.

  • I’ll give you the Realtor’s perspective here. I hate the fact that the MLS claims to take ownership, and I really wish that one of you here would sue an MLS and take them to the mat for it. I have had several instances where I pay a professional to take pictures for my listings, and then they expire and another agent gets the “relist” and uses my photographer’s photos for their benefit.
    I can’t do anything about it, because I don’t own the art. As far as I’m concerned, neither should my MLS. If someone wants to take on my MLS, I’m happy to be a part. The fact that they (MLS) will not take action puts me in a position where I do not want to put my money out there for my clients because I do not want others to benefit from my assets. C’mon guys, the MLS is NOT an almighty being. Please stand up to your copyright.

  • Keith, Scott Hargis always has a lot to say;

    “…and I’m not willing to give up the potential for that revenue.”

    “…and I’m simply not willing to let everyone else ride the bus for free.”

    I’d say he’s the man for the job.
    How about it Scott?

  • Very interesting topic, and greats comments and insight.

    I have to agree with John Becker, if an agents posts the photos anywhere other than their MLS, technically they would be in violation. Except for the fact that they can’t sign away what they don’t own. I know what Larry meant when he said the photos are ‘electronically distributed’. But that’s only the case if another site has an IDX feed from that particular MLS.

    But this also supports the logic behind agents using virtual tours, slideshows, etc. on their MLS. They’re only posting a link to it, and that way their MLS doesn’t own anything.

    We have agents using our tours that will only upload the minimum required photos to their MLS, or, or wherever, and put everything else in their tour. I thought they did it because they could have much higher quality images than what’s allowed in their MLS. But it would also get around any issue of conveying ownership to the photos.

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