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Are Real Estate Photographers Open To Risk Of Liability From Privacy or Security Issues?

Published: 09/09/2016
By: larry

badthingsJonathan asked the following question:

I just got off the phone with a potential client whom after nit-picking my service agreement brought up a point that made me wonder if I'm missing an important indemnification point in my contract:

She told me that her new listing agreements state that there may be "residual exposure" After the property is sold. This brings up privacy and security issues for the buyers of the property or if for any other reason the property goes off the market and media is still floating around online.

She mentioned buglers using Matterport floor plans to plan out robberies....

As I continue to use photos for my self promotion, I assume this can expose me to litigation for using images and full house scans of someone else's property.

Have you or any of your readers encountered such an issue or is there something I'm missing?

First of all, I suggest that you use Joel Rothman's license agreement (it's included in my book The Business of Real Estate). The following is an excerpt from that license agreement that I believe covers the issue you are concerned about:

You authorize us to come onto the Property and take photographs. You have the authority to allow us entry and permit us to take photographs. You promise to indemnify us, defend us, and pay the expenses of our defense, if a claim is made against us arising out of the services we perform for you.

If you and the client both sign this agreement before you shoot, I think it covers you. But just to be sure I asked Joel what he thought about your question. Here is his analysis:

It seems pretty far fetched to me. I am a former prosecutor. I never saw this scenario in real life. Movies, yes. Real life? No. If there was a burglar who wanted to burgle a home and it was worth the effort to hunt down the floor plans online then that home is going to be a BIG home with all kinds of security and the burglar is going after a big score and it would therefore be worth the effort to go to the department of buildings and get the plans there which will be way more accurate than online plans.

And besides, how are you going to pin this on the real estate agent or the photographer? The realtor is the agent of the seller. The photographer is hired by the agent. They are just doing what the seller wants them to do. And what the buyer wanted too because the buyer bought the home after seeing the photos and the plans.

And how would you ever find out (short of a full confession by the burglar) that the plans or photos aided in the burglary, and even if that did happen, how can that ripen into liability for the agent and the photographer since it’s not the plans that harmed the buyer, it’s the burglar stealing the buyer (now homeoner’s) stuff.

And yes, if the agent did something that resulted in liability for the photographer the contract requires the agent to indemnify the photographer. But in reality does it ever get that far? Not under this highly unlikely scenario.

Are there any likely scenarios where the agent would be required to indemnify a photographer? The one that the agreement contemplates is where the agent mistakenly tells the photographer to go to the wrong address and he is subsequently sued for trespass or invasion of privacy because he walks into an unlocked home and starts to take photos and something bad happens (e.g. the photographer breaks an expensive vase, catches someone in the act of doing something distasteful and the photos get into the wrong hands, etc.).


7 comments on “Are Real Estate Photographers Open To Risk Of Liability From Privacy or Security Issues?”

  1. I have heard of a couple of cases where burglars used RE listings to scope out homes, but I have never heard of a photographer being made part of a case. I don't worry about it as I am not the one publishing the images. If an agent or owner feels that there will be security issues with posting photos a a home for sale, they can always require that prospective buyers ask for a gallery of images.

    I often ask sellers to remove any items of exceptional value or let me know of something that I need to shoot around or a picture I need to replace in Photoshop and I have done that on several occasions. My policy is to not photograph security panels, sensors, cameras, displays or safes. If there isn't a good way to shoot around them, I clone them out in LR or PS with a spot healing brush. Safes take a little more work, but I've been pretty good at pasting in a piece of furniture where a safe is. It's not always perfect, but on a small listing photo, it's hard to see the edit very well. I also remove outdoor signs from the alarm company. Some companies use the same systems, installed the same way over an entire area so I don't like to advertise what alarm is installed. Besides, the signs are tacky.

    This might be interesting to post on the Flickr group. Some of the volume shooters that are doing around 1,000 home/year would be the most likely to run into needing the license agreement above more often. If they are running without one and haven't had any issues, that could mean that it's not an issue that deserves too much worry. I'm more concerned that I back into and knock over an expensive piece of art than I am worried about being dragged into court over something rather tangential. And, I'm a huge Devil's Advocate from years as an aerospace safety officer.

    I find it funny that there are some RE photographers that have stated they photographed the wrong home. A couple of those stories involved homes with the same number but it was "N. Main St" and not "S. Main St." I was told an address by an agent that was Elm Dr and when I got there, it was a swath of undeveloped land. Turns out that is was Elm Ct. I think to stay out of trouble, never let yourself in to a home if it's unlocked or get in some other way. I'm alway meeting the homeowner or the agent at the property unless I've been given a lock box code for a vacant property. I also have customers send me the details via email so I have document that shows them scheduling a job and it gives me the address that I can right click and open in Google Maps. Hopefully, that would be sufficient in court to keep me out of the Tanty.

  2. Joel, I read about a burglary team that was breaking into homes for sale and when they executed a search warrant on their home, they found print outs from the MLS or one of the consumer listing sites. I does make sense if they are going after high end entertainment equipment, appliances or just using the images to roughly gauge what the wealth of the owners is. I faintly recall a staged model home being emptied of its furniture.

    I cringe when I see a music room with a bunch of guitars set out or keyboards or DJ equipment. It's a pretty photo, but all of the gear is so easy to resell for good money.

    Another thought: Most homes are not all that big and most burglars aren't going to put much effort into planning. Having a floor plan of a 2,000-5,000 sqft home isn't going to be that big of an aid. They could just make a dash through the home and find the main stuff they are after in 30 seconds.

  3. Vaguely related, as far as the 'battle of the contracts' goes:

    I have a clause in my terms indemnifying me against third party claims regarding Intellectual Property.
    However, increasingly, after doing a job for a large corporation, incl a recent example (not for property/architecture related, different genre), I get sent THEIR terms & conditions attached to the purchase order, that I 'must sign and return in order for payment to be processed'.

    Often this includes passing all IP/copyright over to them, but even more worryingly, a clause leaving me liable for any 3rd party IP disputes.
    In this case I was handing over IP anyway (appropriately compensated). They were responsible for getting model releases.
    So I was worried about the vague possibility of, eg the venue deciding later they disagreed with usage (I hope a property releases was also obtained).
    AND these terms stated they would cover any future jobs as well...

    Something to beware of.
    In this case the T&C's were given to the agency I dealt with, by their parent company, but the agents I dealt with allowed me to strike out that particular clause before signing.

  4. A little off topic about contracts but Security to me is important as a retired deputy. I have stock images of cabinets that I use to cover gun safes if I have to take the image with one in it. I ask if the homeowner would like to remove their children's pictures before I take the image. Many parents have their children's name in big letters on the wall. If they cannot remove it because it will damage the paint then I will Photoshop it off the wall. Over the years I have covered expensive art work with images taken of the homes garden or stock images of scenery. It is better to ask while you take the images rather then having the agent ask for changes because the homeowner is worried about security.

    If the agent or homeowner brings up that they have a "Safe Room" I discourage for them to take images of the location. I have taken the interior images but not where they are located. Maybe I have lost clients because I also tell the agent not to show it off to a buyer until it goes into escrow. Say there is one but not where.

    One owner had millions of dollars in art work that he was extremely worried about being seen and was so happy that I put stock images inside all those frames. Nope I do not charge for all these security changes. It gives me self satisfaction that I was protecting the owners.

  5. Ken, I would be interested in seeing the article about that burglary.

    Charlie, if you have a sample of the terms and conditions please send them to me. I would be interested in seeing what you are being required to accept in exchange for payment.

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