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Beware of the Licensing Agreements Provided to Realtors by NAR

July 18th, 2018

Teri in Denver recently said:

Many Denver area Realtors received an email today stating that they needed to have the copyright to their listing photos. This was sent by the National Association of Realtors and they were also sent a link to a form to send to their photographers so that they, the agents, would now own the copyright. The National Association of Realtors quoted the Zillow lawsuit as their reasoning. I wish I had access to the email and will try to get it from my realtors.

Yes, this type of thinking by NAR (National Association of Realtors) is not new. We’ve reported on it in this post back in January of 2016. The basic problem is that the NAR is an association focused on looking out for Realtors only. To solve this issue, there needs to be an association focused on looking out for Photographers that can work out a licensing agreement that works for Realtors, MLSs, and Photographers.

The process of forming an association of real estate photographers is actually underway. One of their first tasks is to create and negotiate a licensing agreement that works for all the parties involved in the real estate marketing process.

So hang in there and don’t give up your photo rights! A solution is on the way. We will report on results as soon as possible!

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28 Responses to “Beware of the Licensing Agreements Provided to Realtors by NAR”

  • If NAR is stating that the reason why RE Photographers should relinquish their copyrights, is Zillow…. perhaps NAR should stop selling access to our property to Zillow, et al? I suspect that NAR/MLS are being paid for transferring that data.? If so, they are selling things that don’t belong to them, and that would explain their eagerness to manhandle us photographers into relinquishing what is legally our. Clearly there is something not so kosher going on here.

    Am I the only one that wonders why NAR and the various MLS systems allows, companies like Zillow, Trulia, Redfin, who are in direct competition to with their own site, Realtor.com, to utilize their data, and our images? As a content creator, how can you not care? Seriously?

    Because it is on Zillow, it metastasizes all over the web as there are hundreds of outfits that subscribe and pay for access to that content. Zillow makes billions. Us? Not so much.

    Now, before somebody from the “Zillow Certified” contingency starts the whole “Zillow is good for realtors” chant, let’s be clear on a couple of things;
    1. Zillow is good for the realtor that PAYS for leads, and to be on there.
    2. Zillow (and companies alike) are based on a business model that deliberately uses our creations to make money, but without compensating any of us, the actual creators. In other words without our images, Zillow would not exist, period!

    So, do you really want a company like Zillow (who pays you nothing!) dictate how you should run your business, or whether you should get paid at all?

  • Here is a little more background on NAR/Zillows past history for those that are interested.

    https://magazine.realtor/daily-news/2016/06/07/move-zillow-reach-settlement-eve-trial

  • @George, it’s even more complicated as Realtor.com is owned by Newscorp (Rupert Murdoch) and not entirely controlled by the National Association of Realtors.

    Trulia, Zillow and Realtor.com do benefit from the photos we make for our customers, but just for the listings (setting aside things like Zillow Digs), it’s something of a necessary evil. In the music business, radio stations have to pay a licensing fee to play music over the air to ASCAP who then proceeds to unfairly distribute that money, after keeping most of it themselves, to only the most prominent musicians. Musicians and bands in limited markets or genres don’t see a dime. Musicians benefit a little bit by getting their music heard by a wider audience which may then go to see a live show or purchase and album/song. RE photographers benefit by there being a reason for agents to hire us in the first place. If images were only on the non-public MLS, quality wouldn’t be an issue and agents would just snap 2-3 shots with their cell phone and that would be the end of that. An RE photographer would just be somebody that worked in a RE office that ran around and made a couple of pictures while placing the sign in the yard.

    I’m really tempted to put pricing on my web site for packages with a Copyright buyout license so agents would think about it when they see a circular from the NAR or other source that tells them to demand a Copyright assignment. The price list could also help open a discussion about licensing with clients wondering why it’s so much more for them to wind up with the Copyright on the images they commission. It’s not a concept that many agents are familiar with and many struggle with. After Napster, most people get that buying a CD, ripping it and posting it online for others to download is not legal, but they don’t extend that principle to other creative works. Maybe movies, but naught else.

  • I agree that photographers should not give up their photo rights. Personally, I take it upon myself to try and take care of this stuff the best I can. In other words, do not sign the damn thing. I do not wait for a night in shining armor to come save me one day. I do not think that is the way to operate your business.

    This is pretty easy. Don’t sign. Or better yet, quote about double to sign. Double to me would be a good figure because I would have doubled my hourly rate. That is pretty strong. Long term it would be tough because you could not use any of your real estate stuff, but I think doubling your hourly rate would be worth that myself.

  • I wanted to note the irony of a doubled or so rate for real estate photographers. I have said in the past if everyone doubled their rates right now I feel real estate photography pricing would be about where it should be.

  • Wah Wah Wah… sorry for not jumping on the band wagon of “Kill Zillow” and “My work is so valuable people are stealing it…”

    You will never win this. Any association that is formed to fight for our rights will take more money out of your pocket than they put in. It’s just life folks. Stop acting like victims and grow your business learning how to use the system and working within the system.

    I would venture to say that if you actually took the time to accurately document the money lost on average by the typical RE photographer through copyright violations it would be a decimal point with at least one zero after it.

    I’m not even calculating in the recent supreme court decisions impact on “fair use” of internet images.

  • @ Frank, the Certified Zillow Photographer.

    You’ve been run-and-gun real estate photographer, for what? 3-4 years now, Frank?

    “Wah Wah Wah”, really? It’s pretty obvious that you don’t care about the images you produce, but some of us do and no, that doesn’t mean that we are cry-babies, Frank. It means that we are professionals that want to protect what is ours, as best we can, despite some in the business that can’t even keep their verticals straight, even less understand what is at stake.

    Further, you have no idea what copyright infringement is costing any given photographer in lost revenue.

  • Frank – Photographs are only the tip of the iceberg. Sadly, Realtors do not realized that the narrative they write is covered as a creative work under the exact same copyright laws and they passively ‘give it away.’ Personally, I thing Zillow and others should pay a royalty to both photographers and Realtors for hits on properties that they created (and sold) a totally new commercial product selling zip codes, etc.

    It obviously has value as it is the combination the photos and the original content narrative that people take action on. Forget how much it ‘costs/denies’ photographers. While they micro focus on the “marketing the home through the avenues” they are clueless how much it is costing them as they subsidize their competitor. Any Realtor would love both the sell and buyers side…but they give the buyers away to competitors who have been know to trash talk the property and direct to one go their listings, doubling up. Without Zillow, the buyer would use either their own personal Realtor that they had a relationship, or the listing age…not someone paying to be in their face for more details on a house they know nothing about and start from square one on an inquiry. Also, doubling up with both sides doesn’t have to be that property and there is no incentive to force them into it – particularly when factoring in future referrals of the buyer’s friends. If the house is not appropriate for them and they don’t like it after seeing it…they still need a house in that same price range. Mathematically, 50% commission when the listed house eventually sells, and 50% on an equally priced house is the same as 100% on the listed house. Better yet, may be able to repeat with a 3rd referral before the listed house sells, or if the listed house doesn’t sell, they have recouped their marketing investment with the related sell. Realtors just don’t think that way…and NAR certainly doesn’t address it for obvious reasons. Realtors don’t know the value of their and the photographer’s work and just give it away to their competitor.

  • First of all I meant no disrespect. I asked for someone to show me specific document real losses that the normal RE photographer realizes by copyright theft.

    Then George… Why insult me, FYI I’m not a run and gun RE guy by any stretch. I bill six figures. I’ve been in business for over 10 years. I have photographed about a Billion dollars in property values. I dominate the area I work in. I turn away business. My work is excellent and I never lowball any pricing and never give away my product. Being and intelligent business person who understands every aspect of this business, I obsessively improve my business process and work flow along with the quality of my work. That enables me to produce a top product that remains in demand and produces margins of 80% or better.

    Good luck in any attempt you might want to make in fighting, NAR, MLS and Zillow etc. It will be useless. If you were a smart business person, and this is a business, you would put more effort into improving your product, you profit margins and you operational workflow. THAT would profit you more than any (and I’ll use your words not mine) cry baby effort to organize any elite group of “Professional” RE photographers.

    Larry Gray… True, Realtors do not understand a lot about their own business. I know it will undergo drastic changes in the next few years. I can’t educate them on those matters nor would that education directly profit me. I do educate them regarding the benefits of using Pro Photographers and how to prepare their properties and how to leverage my product into increased faster sales.

    Back to George… I understand these thigs precisely because I am a Professional and a good business person. Remain as you wish, just like the Buggy Whip manufactures, and form your Elite Exclusive RE Professional Photographers group and storm those windmills.

    I will remain as I am… a Professional and a brilliant business person that evolves with the times adapting to the market that is there today instead of targeting a market that I wish was there.

  • Unless there’s a revised version that’s just been made available, this is not new, though perhaps they’re being more aggressive in promoting it. I found three different agreements suggested for use by NAR, all back in 2014, which they created for varying scenarios (unlimited license with or without exclusivity, or copyright transfer/Work Made for Hire).

    I **highly** doubt that large companies like Obeo, ImageMaker360, CirclePix, VHT, etc., would ever agree to relinquish control over their images, especially after VHT v. Zillow. As “preferred vendors,” I am sure these companies make quite a few concessions in order to maintain their working relationship with the brokerages, but I don’t see this being one of those concessions. If they refuse, and we refuse, no one signs the unfair rights-grabby agreement and we can put the nonsense behind us as with the last version of these unfair, adhesive contracts.

    And I second what George said. Frank, you have no idea how much revenue I’ve lost this year alone from people either attempting to re-use my images to sell a listing, stagers, designers, and others who just hop online and right-click-and-save for their website, the list just goes on from there. The entire reason RE photography costs as little as it does is because of the limited usage needs of the commissioning party—once the house is sold, the images might stay on the agent’s website, but that’s the extent of their intended use. At typical RE prices, insistence on a copyright transfer/WMFH is just insulting on its face.

  • BTW George, I understand your concerns about misuse of RE images because you make a business of selling stock images. Few if any RE photographers do that. If you were making good money at that my hat is off to you. Few people do well at that.

    I suspect your stock image business is falling flat. Don’t feel bad or fight it. Just get out of it, because the stock image business has taken a nose dive and will continue to take a nose dive and Zillow has nothing to do with it.

    Buggy whips are free now with the recent Supreme court rulings.

    Work better faster and with less effort. It will profit you more that stock photos sales.

  • Brandon and George… I’m not arguing with you. I’m again asking specifics about your actual documented losses. I’m not hearing that. I’m hearing “you don’t know what your talking about…” Please share the quantifiable specifics with me.

    Brandon I have had only a couple of instances of illegal uses of my images. I went after them and easily collected fees from them. I currently have no quantifiable actual losses. Keep in mind “potential” revenues from business you don’t now have or would never have to begin with is not a quantifiable loss. It’s like saying “I’m losing money because I’m not in that xyz business.” Potential gains are not losses of revenue.

  • Everything about Frank’s business model and his website indicate a high-volume, lower-quality business model, which caters to the vast majority of real estate agents who would consider using professional photography. With that sort of model, it is understandable that the photographer would not care much about copyright. However, with a low-volume, high-quality model that caters mostly to agents who value a high-quality presentation, the potential value of the images for relicensing can be much greater. I routinely charge three figures for relicensing images from real estate shoots, which is as much as some real estate photographers charge for an entire shoot, and I have I have sold reuse licensing for four figures.

  • Just this morning I relicensed 7 photos from a real estate shoot back in 2010 for $1200, to a cannabis company that bought the ranch. Technically I could not have done that had I not retained copyright. Relicensing photos from high end real estate shoots is pretty common if the photos are decent enough; architects, builders, designers, landscapers, home system companies, VRBO, other realtors, etc., and yes even cannabis companies!

  • @ Frank,

    First, when you write “wah wah wah”, isn’t that supposed to indicate a crying baby? If anybody was insulting it was you.

    My original post was simply calling attention the fact that Zillow (the subject of the post) is using materials that is not theirs to use, provided to them by NAR (which should not) and, it’s at the expense of content creators. That is wrong, and that you can’t see that given that you are a”professional and a brilliant business person” surprises me.

    Having “photographed about a Billion dollars in property values” certainly qualifies you as an expert on photography and copyright, I can see that.

    Let me see if I can explain this a little better.

    I started my first studio in 1977, so I’ve been at this for a while. I’m an architectural and interiors photographer that includes photographing a fair amount of high-end residential real estate. As David Eichler explained, RE work is done at a discount compared to our typical commercial rates because of the limited scope of usage.

    It wasn’t that many years ago that I sold $20K/month of stock and licensed images. Yes, sure times have changed and stock is now pretty much dead. Nowadays, it’s a couple of grand a month at best. That doesn’t mean that my work is now available for anybody to steal, but they do.

    As far as “quantifiable specifics” when it comes to losses, let me put it this way, as we speak, there are over 1300 (1352 to exact) unlicensed uses of my images on the web alone. According to my attorneys, 788 of those are on revenue-generating sites. Do I care about every single one of those, no, but I’ll be darned if I’m going to have people make money from the use of them, without compensating me for it. You’d be shocked to know who some of the offenders are.

    So, while you think I’m still in the “buggy whip” era, I simply live by the fundamental basic principals of professional photography, and part if that is registering my copyright and enforcing it when appropriate.

    As far as that recent “fair use” ruling, it wasn’t a “Supreme Court”, it was a State Superior Court, and it will be overturned. It doesn’t matter. “Fair use” defense does not apply to commercial use (except for specific “news/journalism” use with attribution).

  • I need to correct myself, it was Brandon that explained the reduced pricing for our RE work.

  • I’m a bit on Frank’s side because I’m a bit of a run and gunner as well. BUT the important part to us isn’t really the handing over the ownership of the images, it’s everything else in the contract that will screw you over. You give them ownership but you are liable for anything that comes back to them. You carry additional insurance on them, you continue to insure them for a period of time following the shoot (years). You work for them exclusively (pages of fine print with hidden gems. The contracts are what will kill us. If you want documentation ask and I will send you one of the contracts.

    What I have done is taken a brokerage contract and assume they will not read it anymore than they expected me to and delete everything I don’t like and send it back to them signed. They just file it and don’t read that I agreed to nothing.

  • George, and please read this with all due respect. It is intended with respect.

    First, let’s agree that we are on the same side here. Glad to hear that.

    Second, let’s agree that your business model is not the normal business model and that your business is not the run of the mill RE business. You have built a great business based on Architectural, Interior, Design, commercial, Food and other photography. Your images are good and they could be matched by myself and many other top photographers that read and post here. Glad we could agree on that. You are a true professional in that area.

    Third, your business market base is not actually normal market RE photography which is the base focus of this forum. You are running a commercial studio. Glad we agree on that.

    Fourth, Wah Wah Wah, (my mistake maybe it should have been typed wha wha or maybe not, you tell me) if you add the long “a” sound in (which I intended) that is not a crying baby but more like the sound of the adults in Charlie Brown. It’s the sound that represents something that the persons (this forum) will most likely ignore because when it comes from an elite adult talking down to mere children that are not their equals it goes in one ear and out the other. It does that because your comments, while correct, are centric to your specific business model which does not represent the market 99% of the RE photographers address.

    Fifth, thanks for providing specifics about your business and agreeing that the “stock” market is dead or on its way to the grave for the normal RE photographer. You may be impacted by all of this but you are not actually an RE photographer. It’s a sideline of your successful business.

    Sixth, regarding Zillow comments etc. I am probably one of the few people here that have poured over actual Zillow agreements and MSL agreements Agency agreements and the business models of the entire Real Estate industry, and this is important …as it goes through a rapid disruption of the old chain of relationships of all involved in the industry.

    Seventh, and this is more to my Professional point here… when we, as Professional RE photographers, tend to look at our business as a “Photography” business, we fail to see the evolving role we play in the Real Estate industry as it goes through truly rapid and disruptive changes. I have professionally written about this (I got paid for that also) but it’s not in my RE business model. When we allow ourselves to get caught up in the weeds struggling with fighting massive cultural changes involving the use of RE images, which are our product, we expend energy that is best used to transform our business into producing products that seamlessly fit into and add market value to the supply chain side of this industry. That is where we fit in.

    Eight, building on my Seventh point, the industry is transforming with or without us and our copyrights and legal agreements. The business value of that content does remain as important as ever, however the market supplying that content has exploded at the same time as the potential quality of that content improves to unprecedented levels. That impacts supply and demand. It improves the quality and the amount of available product. Like it or not any attempt on a normal Professional RE photographer’s part that makes it more difficult for a normal agent to do business with, will not end well for that Professional RE Photographer. We have no control over the pricing the market is willing to pay. We don’t actually set pricing, the MARKET does. We do not actually determine “Fair use” in the market perceived or legal, or the legal chain of possession of images once released into the market. It does it’s own thing like it or not legal or illegal. We can expend a lot of energy fighting it though. We may even be right in the end. But in the end we will be very right and fail in the business because we did not figure a way to change with the times and produce product at the market price and deliver that product on time and within budget and with the least amount of resistance to the disruptive change the agents are going through. A brilliant business person, like myself, studies this chain and produces a product that does the job, at a price the market can accept, within a time frame the market dictates, that does not disrupt the workflow of the agent or agencies that hires us.

    Ninth, everyone here should continually focus on improving their delivered quality, expanding their product line, reducing time spent in their workflow, understanding their local markets and understanding the rules those markets expect us to play by (legal or not, like them or not) in the normal RE market, not the Commercial, Art, Architectural, Designer, Stock image, Food, Automotive, Wedding, Portrait or Pet photography business. Do that and you will succeed. Ignore that and you will fail. If you can’t sell your product regardless of the reason you can’t sell it, you will fail. It does not matter if “it’s fair” or not, you fail. Flailing around crying you are being victimized and crying fowl and complaining that it’s not fair will not actually help your case. No one here singularly or collectively has the time and financial assets to put at risk to impact the disruptive transformation of this whole industry. Just play the game. You are not the owner of the team. You are being paid to play the game not make the rules. That is out of your control.

    Again George, no disrespect to you or your successful Studio and multi-faceted business that you have built. It’s just not THE RE photography business. Please don’t put down the legitimate efforts of others by claiming they are not Professionals or that somehow their product does not meet your standards. Neither you nor I set those standards. We become Professionals in this business when we singularly build a successful business that produces content that people are willing to pay for and we not only can, but actually do make a living producing that content. Both of us have met that criteria.

  • I’m so sorry that this became a pissing match. I am also from the “buggy whip” era and work not only in real estate but commercial, hospitality and design. All are architectural photography and in my mind, all the same industry. I am the preferred photographer for Crowne Plaza hotels in North America.

    We must NEVER give up our rights to our photos, if we continue to “go with the flow” our businesses will be downgraded continually and we will be shooting for Obeo or others like them for $20 a shoot. The market here does not dictate my prices. I am one of the most expensive “real estate” photographers in town and I dictate the price and the turn-around time. My agents are some of the top agents in the Denver metro area and know a quality photographer when they see one. I always photograph as if I am getting paid for a design or commercial shoot in hopes that especially in new construction, the builder, architect, designer, stager or other sub-contractors will ask to purchase usage of my photos. I probably make close to $20,000 in “re-use fees” a year.

    This issue continues to come up and of course it is due to the internet and social media boom. I am onboard for any group that would like to come together and start working on getting the MLS, Zillow, Redfin back in our control where it should be.

  • Hey Frank,

    It just like to point out, I am NOT running a commercial studio business, as I actually have not owned an actual studio for 25 years. I shot on locations like everybody else here. Nor do I “put down the legitimate efforts of others”. I do object when somebody tells me “Stop acting like victims and grow your business learning how to use the system and working within the system” and “If you were a smart business person, and this is a business, you would put more effort into improving your product, you profit margins and you operational workflow. THAT would profit you more than any cry baby effort to organize any elite group of “Professional” RE photographers”.

    My original post was not directed at you, and simply pointed out what is obviously a problem not only to me but many other professional photographers

    So while we are on the “same side” per se, our view of the business is very different. Not better, or worse, simply different. I’m staying out of your points 2 though 6 as I’ve already pointed out what I actually do, and the rest are moot points.

    As to your points 7 through 9, let me just say, that I do indeed consider myself in the photography business, not the real estate business. The fact that some of my clients are realtors, does not change the fact that they are hiring me for the images that I create for them, not because I’m a real estate photographer, but a photographer.

    Like Teri, I too consider everything that I shoot part of architecture and interior design (short of an occasional food shoot). Like Teri, I do not change how I shoot a assignment regardless of whether for a Designer, Architect, Magazine, or Realtor, as it relates to quality, or effort invested. I shoot everything to be best of my ability, and always have. No, I’m not volume based, far from it, as my business model is not based on providing a commodity to as many clients as possible for them to do whatever they want with. Not saying that is wrong, it’s simply not what I do.

    I think it’s clear that there are two different types of business models here. One is strictly fast track RE shoots based on volume, and focused simply on what is the trend in the business today, and chasing the next big thing trying to capitalize on trends. These are operators that “skipped” the photo school and the underpinnings of the business of being a photographer. Then there are actual photographers that shoot for RE clients as part of their architectural and interior design photography specialty that operate based on a traditional photographic business model. Personally, I think those two business models are as different as anything, that on the surface may appear similar, can be.

    Then you say, “It does not matter if “it’s fair” or not, you fail. Flailing around crying you are being victimized and crying fowl and complaining that it’s not fair will not actually help your case. No one here singularly or collectively has the time and financial assets to put at risk to impact the disruptive transformation of this whole industry. Just play the game. You are not the owner of the team. You are being paid to play the game not make the rules. That is out of your control.” See that’s where we really disagree Frank. I’m not “crying about being victimized” , I’m taking action and I do have what it takes to do it.

    But as far as I’m concerned, a big part of the problem is the “inaction” by so many of the “new” real estate photographers that simply will not hold the line against abuses and infringements that has indeed contributed to the current climate of a free for all. Why? I’m not sure, but I think part of the problem is that they do not see any value in what they produce, and thus see no need to protect it. Okay say you, what’s wrong with that? They can do whatever hey want with their images, right? Sure, but it does affect the craft of photography Them not holding the line, destroys it for everybody and devalues the product, and will indeed change photography forever, and not for the better, for any of us.

    By choosing the path of least resistant, and not pushing back when somebody does you wrong, you (we) simply invite more wrong-doing because it had no consequence. So, stand up for what is yours and when somebody takes from you, what isn’t theirs – stop them or they’ll keep coming.

    I think everybody’s opinion has been heard, so I think we can be done with this. And Teri, no need to be sorry, I think it’s a wake-up call for many.

    Personally, I’m heading back to La Mancha for a little rest.

    Best to all…yes that includes you Frank.

  • I’m with you, George–I think inaction by newer photographers helps devalue our profession as a whole as it tells our clients that they can walk all over us and we will probably do nothing (making them surprised when the more seasoned of us actually do something). If I see another post on a FB group about “as far as I’m concerned I got paid and they can do with the photos what they will,” I’m going to scream. It helps set us back, and is a slap in the face, very damaging, to other photographers who are having their work infringed for the first time (no matter their experience level). In fact, I’m of the mind that the newer real estate photographers should not be giving advice outside certain circumstances like giving some opinion on the look of a photo; they have no business giving advice to people on how to deal with infringement, especially. It’s also something that can be applied to seasoned photographers who are just now coming into the business of real estate photography, because many of them seem to apply their previous business practices (which, by and large, mostly apply only to their type of photography business) to real estate photography and/or assume we are dealing with copyright and clients in the same manner as they dealt with brides and event planners.

    In that same token, I’m probably a broken record about this by now, here and on the FB groups, I really hate to see advice given to people that recommends they get lawsuit-happy at the drop of a hat when having one or two photos infringed. There is so much misinformation and ignorance often included in these little tidbits of advice that it makes my head spin. Property releases, model releases, take them to court immediately (without considering whether or not one has registered the images being infringed with USCO, or the value of the photos themselves, or what the ramifications could be for their business should they figuratively cut an agent’s head off for what was likely an ignorant mistake brought on in part by the photographer themselves [not educating properly])…you get the picture. Then, a person having their work infringed often doubles down on what they already wanted to do in the first place, by appearing to take the bad advice and getting EXTREMELY arrogant about the quality of their work and how much business they allegedly do, before using that as a justification for declaring that they don’t care what the client in question does or thinks about the photographer WAY overreacting to a simple problem that could have been solved by a simple phone call or email.

    It kills me sometimes. It makes me take a break from Facebook and other social media because it’s not always worth engaging with arrogant people, who, ironically, have almost no reason to be as arrogant about their work and their business as they are being.

    Sorry for all the run-ons!

  • Question: if you photograph a house that is staged and looks great inside and out, for the sole intention of real estate photography to assist the listing agent in marketing, and then a year later a publication of some sort wants to license some of the images, do you have to seek permission from the property owner to feature images that show the inside of their home? Do you have to seek permission to show the staging design work from the company that provided the staging. Do you have to seek permission from the listing agent that initially hired you? I mean technically could the Stager say that your images look good because of their design work, thus they should be receiving a part of the editorial re-licensing commission? I’m not looking for some sort of condescending “you need to know your rights and stick up for the rest of us photographers by not giving away your photos for free” kind of remark. I’m looking for honest answers here.

  • @ Darren,

    The simple answer is; no, as you are the copyright holder (unless you signed a “work for hire” agreement, or relinquished your copyright).

    Having said that, I would not do it without having a photographic property release. The staging company or realtor are really a non-issue as they typically want all the exposure they can get. But, I would never do it without having a photographic property release signed by the actual property owner. As always, make sure the images do not get used in a way that is detrimental, or reflect poorly on those involved in the project, and typically not in a way that provides any detail about location or ownership.

    Personally I look at each situation individually and typically confer with all parties involved prior to agreeing to any publishing.

  • Sorry, I must be a bit pedantic here, to expand a little on George’s comment. There is no specific law in the US that requires you obtain permission from a property owner to use photos of that property for which you own the copyright, and interior design is not subject to copyright. However, even if you do own the copyright, there are a couple of legal situations that could restrict your usage: if the photo includes a work subject to copyright and that work is clearly the primary subject of the photo, or if you have granted completely exclusive rights to the client to use the photos (meaning that only they may use the photos). There are actually a few cases where the exterior of a building could be subject to copyright, but that only applies to buildings that cannot be seen from a public space and were built after December 1, 1990. Note that copyright relating to photos of buildings can be very different in other countries, such as France and Italy.

    As far as George’s comments about a property release, personally, I don’t think this applies when the property does not include the owner’s personal possessions (i.e. if it has been professionally staged) and the photos will be displayed very broadly to the public in the media. Even with the homeowner’s own furnishings, it is my opinion that they have already given implicit consent by allowing the photos to appear all over the Internet and in various other kinds of highly public advertising. However, I do take seriously George’s points about not letting the photos be used in ways that would reflect poorly on those involved in the project. As far as providing details about location or ownership, the location has already been made public most of the time in the realtor’s marketing and the ownership is a matter of public record. In any case, I have no need to note the property location or ownership when I use the photos. If a property photos do include the owner’s possessions and the property will not be marketed publicly, that would be a different consideration for me.

    None of the above is legal advice, just my own opinion.

  • What about the person who now owns the property after the sale is complete? That’s why I noted a year later after the listing has been sold, sorry I should have made that more clear. To put it in context, let’s say you tried to license photos that you took of a home, but for privacy concerns the new/current property owner does not want those photos to be marketed on the internet. Are there legal grounds for the property owner to take action in that circumstance?

  • Darren, that it part of the reason why I think those who advocate obtaining property releases for the structure itself are misguided. In my (non-legal-expert) opinion, it is only in cases where the photos show the occupants possessions in a way that might show the way they live where one might want to consider getting the homeowner’s formal acquiescence to use of the images for other commercial purposes.

    It has occasionally happened to me that the buyer will want to suppress the photos after sale, but I will not do this unless they want to purchase exclusive rights to the photos, for which I would charge a substantial fee.

  • Darren, you own the copyright 100% the moment you press the shutter, unless or until you sign those rights away explicitly to another party. That is gospel. You NEED to ask no one or get anyone to sign anything in order to re-license photos to any party or use them however you want.

    Here’s the thing: Is it a good idea to consider your business and your clients before re-licensing, selling or otherwise using photos you’ve taken for clients in the past? Yes, absolutely. But in my long rant above, I mentioned property releases. In context, I was talking about “new” real estate photographers who give advice to others on property releases. It’s my belief that they are a myth, borne of those photographers who were model photographers, product photographers and wedding photographers before moving over to real estate. I’ve seen many of those who, whether or not they are competent real estate photographers, bring their old systems with them without regard to how real estate photography business works as it pertains to copyright, licensing and releases. Might you want to consider homeowners when relicensing or selling old photos of previously shot properties? Yes, you might want to. But you don’t HAVE to–if you want to sell a photo or re-license it, be bold and do so.

    When re-licensing, an old piece of advice I see a lot, and believe in myself, is to at least give the previous agent on that property a courtesy call and let them know what’s happening. Regardless of how well you’ve educated them, some will feel some kind of ownership of the photos if for no other reason than the fact that they put so much money into marketing a listing only to lose it when the house didn’t sell. To tie in with that, many will advise you to just offer a re-shoot of the home for the new listing agent should they contact you about the photos. The reason for this is, the previous agent got charged for a full shoot, including your travel, shooting, and editing time. When you re-license photos, in my opinion it’s unethical to charge that same price all over again when you don’t have to go back out to the property. BUT, if you don’t, word may get around to the previous agent (who in this scenario can be assumed to be a loyal, long-standing client) that the new listing agent got to use the same photos and got a good deal, paying less. The simple solution is to just offer a re-shoot at full price so you’re not alienating good clients by charging others less than they themselves were charged.

    For your business’s sake, always think about the ramifications involved in any situation where you are contacted by someone to obtain a license to use your photos. You can legally do what you want as long as you own the copyrights, but when running a business you have to keep clients happy–hard to do that when other clients are getting better deals. Real estate agents talk, some of your clients may work in the same office or even be friends. When you’re courteous and thoughtful of your clients, they remember that you cared enough about getting and keeping their business to be fair on your pricing.

  • Ryan, that’s some of the best advice I’ve seen on these forms in a long time. Great call about photographers from other genres coming over to real estate photography with a different business mindset. Thank you for the input

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