In our line of work, there's a common scenario that comes up all the time. A third party, not related to the real estate agent, wants to use photos you created for their own marketing. Some common examples of when this happens:
You have likely experienced some version of these scenarios as a real estate photographer, and my goal in this post is to lay down some definitions and best practices to help you confidently navigate these situations. Keep in mind, I'm in the United States so I'm writing from the standpoint of how things work here. Laws and common practices may be different in other countries.
It's a common misconception by both clients and photographers alike, that after a transaction occurs (photographer hired, photos created, photos delivered, invoice paid), the paying client owns the photos. That could not be further from the truth.
In fact, here in the United States, the photos are the intellectual property of the photographer. The only way that is not the case is if: A) the photographer grants ownership, copyright, or "full rights" in any capacity in writing, or B) if the photographer is an employee creating a "work made for hire". In both cases, you'll have a contract that clearly states who owns the photos once they are created.
Assuming you own the copyright to the photos, that puts you in a position to license the photos for each specific use. You get to decide who can use the photos, where the photos can be used, for how long the photos can be used, and how many times the photos can be used. You can also decide if anyone else can use the photos at all. It's all up to you. You then issue the license with as many or few limitations as you see fit to each party who wants to use the photos.
When a real estate agent hires you to photograph a property, there are in fact two things they are paying for: 1. Your time, labor, and skill, and 2. A usage license for the photos you deliver. Now, you probably don't invoice with those broken out into separate line items, and you probably shouldn't (it's confusing to the client). But it's important to understand this concept, and you should have a contract that clearly defines the licensing terms (more on that below).
Very often I hear photographers talking about the value of their photography as though it's strictly labor and nothing more when that couldn't be further from the truth! The value of the images is much higher than the value of the work involved in creating them. The fact that you have experienced other parties licensing/using/stealing your photos proves this point. The more an image is used, the more it is worth. That is the value of photography.
That's not to minimize your value proposition to your clients. YOU are a major part of why your clients hire you, as Tony Colangelo has written and spoken about so many times right here on PFRE. But do understand that after the job is done, the more a photo is used, the more it is worth.
In your contract with your real estate agent client, the common best practice is to issue a license that allows the agent to use the photos in any and all marketing related to the listing and sale of the specific property that was photographed. The common duration for the license is typically until the property is sold, and after the property is sold (after the closing), the license expires and no further usage is permitted. You can handle this however you choose, though. What matters most is that you have these license terms clearly defined in your contract so that you and your client know exactly what is allowed and what is not. For instance, I allow my agents to use any photo I make for them on their website in perpetuity. That's in my contract. I also make it very clear that my client is the only entity allowed to use the photos, both in the contract and again verbally as a reminder. Don't expect your clients to remember this rule all the time. Innocent mistakes happen all the time, so it's important to talk about it.
With the basics out of the way, let's get back to the scenarios outlined in the introduction. You made the photos, delivered them, got paid, and now someone else wants to use the photos. First, hopefully you were asked for permission (If you were not asked, then you have an infringement on your hands. That's a topic for another article, but in the meantime, read all of the recent articles by Mike Boatman here on PFRE.). When asked for permission, as I see it, you have three options for how to respond:
By the way, in option 2, even if you are not going to charge a licensing fee, you should still issue a formal license that stipulates all the same parameters of the usage. Ignoring the value of the photo itself, I think if nothing else, the time it takes to create a formal license agreement is worth something. If you ignore this step, you are opening the door to un-approved usage.
It's up to you, and the only "correct" answer as far as I'm concerned is, you should charge something. Before you give a quote, gather all the pertinent information as I listed above. To know what a license should be worth, you first need to know how and were it will be used.
Bonus: This is a an opportunity! You might be talking to a future client here, so put on your smile and get to know them a little. In 2019, I re-licensed photos made for a real estate agent to the company that did the renovation on that home. They became my biggest client of 2019, and so far, they are my biggest client of 2020.
A real estate photo I re-licensed to who quickly became my biggest client to date.
Then they don't get to use the photos. It's that simple. Don't be afraid to say, "No".
The line moves depending on the person and depending on the situation and again, it's all up to you. If it's a slow season for you, or you really need the money for one reason or another, by all means, make a deal. But if you have a healthy business, and don't need the money right now, consider standing firm on licensing rates that are fair and justified. You can set a precedent for yourself that can pay handsomely over the years to come. Experiment with it, and be willing to lose a sale. You won't always close the deal, but when you do, you'll be smiling ear to ear.