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Beware Of The Licensing Agreements Provided To Realtors By NAR

Published: 07/01/2016
By: larry

copyrightDerek in NYC pointed out the following:

I recently watched a video on about "Listing Photo Copyright Issues"

In it, they present 3 types of agreements for realtors to use as templates when hiring photographers (all available for download)

The first is a "Work for Hire" which I know few RE Photographers would agree to as it transfers ownership AND all rights to the realtor.

The second is an "Assignment Agreement", again - transferring title and ALL rights to the realtor

The third, however - while a more ideal agreement type "Exclusive License Agreement", but the reason for my email is they have included the below language:
"Photographer hereby grants to Brokerage an exclusive worldwide royalty-free license in perpetuity to reproduce, distribute, display, prepare derivate works of, and publicly perform the Images in connection with the real estate industry, including without limitation such uses of the Images in connection with advertising real property and to authorize and sublicense such rights to third parties at Brokerage’s discretion."

While this does allow the photographer to retain ownership of the images, if I were to agree to this language - the realtor would be able to authorize and sublicense MY images to 3rd parties - (I.E. other agents after the initial listing ends, architects, designers, stagers, etc).

I'm pointing this out here as these are the agreement suggestions from the NAR, and I would guess that many realtors will prefer to use them as opposed to generate one on their own. I want to make sure we photographers understand exactly what we are being asked to agree to.

Excellent point! Thanks for pointing this language out. I'd seen the video but I didn't download them and look at the text carefully. Obviously, this was written by the NAR legal counsel who probably has never discussed this subject with a photographer. So it's slanted toward making things convenient for the Brokerage... totally up to their discretion!

The point is because the NAR has created these licenses agreements photographers are likely going to encounter them. You may even get push-back from Realtors who would rather use the NAR agreement than yours but as Derek points out the NAR Exclusive License Agreement allows the Broker to "sublicense such rights to third parties at Brokerage’s discretion."

As an alternative, in my Business of Real Estate Photography e-book I have a license agreement written by Joel Rothman, an IP attorney who has represented PFRE readers in successful litigations. Joel's license agreement is written to with photographers rights in mind.

13 comments on “Beware Of The Licensing Agreements Provided To Realtors By NAR”

  1. I'm guessing that the NAR's lawyers are well versed in real estate law....but maybe not so much in intellectual property law.
    Just as a real estate photographer is not necessarily the best choice to shoot a wedding, a real estate lawyer probably shouldn't be writing IP agreements.

  2. Personally, I would carefully explain to any realtor who wanted me to sign such an agreement that those are not my terms of business and why. If they insist, then I and anyone else has the freedom to turn down the assignment. We are not obligated to sell our souls. Its quite a different matter if you are employed as a full time photographer and are on a payroll, then your employer owns all rights and copyrights, as I understand it. And there are many RE photographers who are employees rather than free lancers or independent business owners.

  3. So far, I have only had one yahoo ask me to agree to their/this kind of contract and terms. He claimed that he had this agreement with all of his former photographers and I should not have a problem with it. After all, if it were not for him, I would not have a property to shoot... I pointed out to him that he sought me ought because he...No, his clients, were so unhappy with the photos that he supplied, that they, were ready to cancel their agreement with him for lack of performance. When he tried to persuade me with the propaganda that the female above in the video is spouting and his tone, I just stopped him cold and said that I appreciated his interests in my services, but that I do not think that we would be a good fit. That I have many long term relationships with realtors and one thing that I have come to know is that our (the realtor and I) success is that we respect each other and our respective endeavors in business. I invited him to talk with the other agents in his office that work with me and if he should have a change of heart, give me a call.

    Bottom line, I usually don't say no, but just how much.... In this type of situation, with his tone and all, I just did not need to deal with it.

  4. My understanding is that the reason re images are so cheap, in essence the cheapest photos you can think of, is because of the short lived nature of most licenses and the narrow scope the images can be used. I don't know myself I just find this language so out if touch with reality, it's as if they do not know the difference between buying a dvd of Star Wars and purchasing the entire rights to the movie. I mean those are just such vastly different things and they seem to have a total lack of understanding of what's going on and how much a single photograph would cost to transfer the rights over.

  5. This is a topic that comes up not only on this blog, but in all group discussions related to real estate photography on linked in and facebook. In addition, it comes up in any photographic discusssion group. Right now, the US congress has a task force committee that is working with the major professional associations on creating a better method of copyrighting and enforcement for photographers including the option of a federal small claims copyright court. It has always been my opinion that the reason that real estate photography has had so many problems with copyright and licensing is that the majority of photographers in our industry came into it through means other than formal photography backgrounds. (Although many of this group have switched from commercial, wedding or portrait and therefore are more experienced with copyright and licensing). It is this lack of knowledge or through knowledge obtained through internet searches that real estate photographers and agents have gotten lazy about enforcement or even creating an agreement. I highly suggest that anyone interested in what is going on in the world of copyright join a professional association like PPA or ASMP and follow their guidance on copyright and licensing. Both of these organizations offer free tutorials in the subject.
    My personal opinion is that architectural photography of significant buildings or possible stock usage should be copyrighted and licensed in the traditional manner. I believe that real estate photography needs to be copyrighted, but not necessasrily licensed. Real estate has a lifespan and at the national average of $150 per home for 30 images = $5 per photo - it may not be worth it to go through the formal government copyright process of $35 per upload. My personal goal as a real estate photographer is to make it as easy and seemless for the agent so that the agent wants to continue to use my services over and over again without a fight everytime he/she wants me to photograph. As to the MLS - sometimes we have to do things or sign things we don't like. Like Jerry Miller stated - it is the respect I am looking for as a business person and real estate photography is just that - a business - albeit sometimes a lot of fun and sometimes very creative. In our classes and in my coaching I teach methods of getting around the MLS license and of dealing with these issues. Most of my students end up satisfied with the solutions we present.

  6. Are there any RE photographers in Canada that use a standard license agreement? Just getting my business up and running and wanted to use the License Agreement provided by Larry in the Business of Real Estate Photography e-book but assume there would be some differences.

  7. I would suggest having all of the NAR licensing agreements available for your clients in advance but also offer one of your own that protects you the best. Let them choose. Charge a very large amount to do a shoot using one of the NAR agreements, and your normal rate for your own agreement. Realtors are very conscious of how much they are paying. I think most realtors will decide to go with the less expensive agreement. If they take one of the NAR agreements, then they should be paying premium for the additional rights to the images.

  8. @ Suzanne,

    " I believe that real estate photography needs to be copyrighted, but not necessarily licensed."

    What would be the purpose of copyrighting a photo if you're not going to license it?

    At any rate, copyright is not a decision the photographer makes (setting aside Work Made For Hire agreements which are very rare and very explicit). Copyright is formed instantaneously upon creation of the photo (when the zeroes and ones are written to the card in the camera), and resides with the human who actuated the camera. REGISTERING the copyright is an additional step that can be taken, but it's not required to form, hold, and defend one's rights.

    " the national average of $150 per home for 30 images = $5 per photo – it may not be worth it to go through the formal government copyright process of $35 per upload."

    The data from Larry's 2008 poll indicates that the average is closer to $240 (which also correlates with my own estimate based on talking with lots of real estate photographers around the country).
    But more importantly, it's $55 per upload to register copyrights, not $35.

    It is very, very, VERY worth it to register your photos with the US Copyright office. The cost is negligible, the process (once you've figured out the archaic website) is quite quick. And the potential benefits are enormous. It would be a rare photographer indeed who didn't have an infringement to deal with at some point, and resolving these things is much easier when you've got a copyright certificate - regardless of whether you "lawyer up" or not. Some folks believe that real estate photos have little or no value....and I think that attitude does an enormous disservice to both the individual photographers who espouse that view, and to the industry overall.
    ASMP, PPA, and other trade groups representing other art forms worked very hard to get us to the point where we had the tools to generate revenue for our work commensurate with it's value - PLEASE don't undermine that by suggesting that photographers should simply waive their rights to their work for $5!

    "My personal goal as a real estate photographer is to make it as easy and seemless for the agent so that the agent wants to continue to use my services over and over again without a fight everytime he/she wants me to photograph."

    If you're having a fight with your clients every time, over whether or not they're going to "own" the photos (for $5!)....then you're not communicating very well with your clients. You can do it. It's not as if the real estate agents in Albuquerque are particularly dense...and there are hundreds? thousands? of RE photographers around the United States who are able to do this very thing (license their photos on a rights-managed basis, to real estate agents) every day...without a fight. It needn't be complicated, it needn't be fractious. Those same real estate agents abide by all the other licensing agreements they enter into -- software, Netflix, etc., and they understand the limitations of all the other agreements that come up in everyday life, especially the (very) dense language of their own contracts. They're very accustomed to these things. They can abide by your terms, too...IF you present yourself as their equal, and demand equal respect.

    I believe that getting respect as a business begins by respecting yourself. We all know that RE agents don't need to "own" their listing photos. Giving in to client demands that are based in ignorance is not a good starting place!

  9. Given the Berkshire v Neighborcity and VHT v Zillow suits I think the NAR is trying to prevent lawsuits over photos by offering these "sample" agreements. In the September 2015 article the NAR is alerting the membership that "... a misunderstanding of how you may use the photographs for property listings could make you vulnerable to a copyright lawsuit..." and to "...know what rights you own in photographs and how those rights permit you to use the photographs." They have decided to offer the samples "...which should be modified as necessary to fit your particular needs". They are not requiring agents to use the forms. Maybe this will get photographers that do not have signed agreements to get something in writing.

  10. Copyright registration of published images needs to be done within 90 days of first publication. This means that a photographer can register all of their images once every three months for $55. Given the remedies that registration allows, it's worth the money. If the infringer has a lawyer and they know that the images are registered, that lawyer's advice is most likely going to be to tell the infringer to settle up with the photographer quickly and politely.

    The NAR's sample aren't even useful as templates. In science, the term used is that "They're not even wrong", to describe something so far off the mark.

    I talk with my customers when I first start working with them and they have no problem understanding the licensing I offer. They also realize that all they are going to use the images for is to get the property sold as fast as possible for the most money while advertising that their marketing is superior to their competitors. They know that they will have little use for the images after the sale. They are licensed by me to make further use of my images that they license to advertise themselves if they like. If the agents/brokers can't understand the terms of my services, I don't want to do any work for them. It would only end in frustration and I don't want to get into a situation where I have to go after them for exceeding their license.

  11. After several years of shooting real estate photography, an agent emailed a licensing agreement to me after my first shoot for them. It was mostly standard, but I crossed out the lines regarding unlimited sub licensing of images. The agent and his lead broker said it was a standard MLS contract, but I still refused to allow the unlimited sub licensing. I wonder how many photographers they have who will sign a "blank check" agreement like that? I do register my images every 3 months like clockwork, so I'm fully protected, but I hope I never have to deal with a blatant infringement.

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