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Making a Case for Image Copyright

Author: Mike Boatman

Good Day!

Since Brandon has been kind enough to allow me to address the PFRE community, please let me introduce myself:

My name is Mike Boatman. I have worked full-time as a commercial advertising photographer for over four decades. In the early days, the bulk of my work was product, food, and architectural photography. Later, a good portion of my business was in industrial locations for new facility construction and architecture. In the past 15 years, most of my assignments have been architectural photography.

One of my side ventures has been photographing for magazines and soliciting editorial space for my residential architectural clients. Over the past few years, my work has been represented in over 120 magazine cover articles.

I’ve enjoyed speaking and teaching engagements and seminars about photography and the business of photography. Venues include the Chicago chapter of APA, and various photography organizations and clubs. I’ve also been part of professional forums discussing photography as a business. Humorously, some of my exploits have been the subject matter of other professional presenters giving lectures at ASMP, APA, and other professional forums.

The reason I’m sharing here is to pass on the wisdom I’ve gained over four decades in hopes that you will take the time to read and reflect on it.

Disclaimers:

1. I’m a photographer. Although I do consult about photography as a secondary business and about setting up studios for corporations, my opinions are those of a photographer. Where photography business and legal matters intertwine, I am not offering legal advice. I do not claim the advice I give to be legal advice. Any and all legal comments by me are only and exclusively my opinion as a photographer.

2. I’m certain that there are a couple of corporations and attorneys that will be reviewing every word that I write here. Therefore, I will only be speaking in broad, general terms and concepts, not naming any specific corporation. Everything that I am speaking about is my personal opinion.

Given these disclaimers, I hope I’ve sparked your curiosity. Shall we begin?

It’s a business! If you’re being paid, photography is a business, and it should be treated as such. Having done my fair share of real estate photography, I understand that you’re in it for the money. I don’t know of any photographer, including myself, who would jump for joy when asked to photograph a vacant home in a run-down neighborhood that’s listed for less than $100K simply for the purposes of posting on an MLS.

It’s a business! Don’t get me wrong, I absolutely love photography. Even after four decades. I still go into a state of Zen happiness when I look through my camera. However, I don’t do assignments for the sheer love of the art. The one requirement for having a photography business is that you must make a profit. All of your living expenses are paid out of your profit. In the early days, I was notorious for using the eraser on invoices. I didn’t recognize the value of what I brought to the table or the value of assets. For me, the cure was putting a picture of my three daughters on my desk so that I could look at it when I was negotiating with clients.

In order to make a profit, you must be conscious of, and have in place two things:

1. Asset management
2. A business plan

Keep in mind; you’re running a business that happens to be photography. I'm really not sure which one to talk about first so I’ll start with asset management.

Assets

“In financial accounting, an asset is any resource owned by the business. Anything tangible or intangible that can be owned or controlled to produce value and that is held by a company to produce positive economic value is an asset. Simply stated, assets represent value of ownership that can be converted into cash.” (Wikipedia)

“A useful or valuable thing, person, or quality… property owned by a person or company, regarded as having value and available to meet debts, commitments, or legacies.” (Google)

“Anything that can be used to make money, value, or establish value. For example: Your camera, your computer, software; both imagery and business, marketing and advertising materials including website, blogs, and social media accounts; continuing education--and most importantly, your largest asset… your images.” (Mike Boatman)

Business Plan

There seems to be two leading contenders of established business plans in the real estate photography industry:

The first is day-rate based like that of an hourly employee where you consider the work that you create to be a work for hire. The common explanation is, “They bought the photo, they can do what they want with it.”

If you’re in the camp of “they own it so they can do what they want,” I hope you will read further. If you are adamant in this position you may not want to read any further because you definitely won’t like what I have to say. I’ll be pointing out how you’re losing money, not providing for your family, short-changing the value of yourself and your work. You are acting like an employee without having any of the benefits of actually being an employee. You have no employer paying into your Social Security, contributing to a 401(k) retirement plan, offering health insurance, and providing you with vacation/sick time, plus a living salary.

The second business plan is referred to as rights-managed. Rights-managed has been the established business model for photography dating back to early portraiture photography. Photographers would sell photographs but not the negative. The negative was a very valuable asset.

Whoever owned the negative could produce and sell hundreds or thousands of photographs from that one negative. The point I’m making here is rights-managed is not new. It’s the established bedrock of photography business plans and rights-managed is embedded in the Constitution of the United States since May, 1790. The first works were registered within two weeks.

An example of rights-managed as it applies in real estate photography:

The images may be used for the purposes of selling a particular property by an individual real estate agent for the duration of the listing contract. Usage expires when the listing contract ends. Usage rights may not be transferred, gifted, or sold to any third party for any reason without prior written consent of the photographer. All copyrights remain the sole and exclusive property of the photographer.

This example is general in nature and it employs the most dangerous word in copyright: use (also used, usage, and any other form of the word use). “Use” as a stand-alone word without defining how the images can be used relevant to copyrights means you can use them for anything and everything.

The word use should be defined as to what can be used as it applies to copyrights. In the example above, the only thing defined was the duration of time and who could use it. (In a future blog post I’ll elaborate on the word use.)

The four constitutional elements of US copyrights that give the creator absolute authority to control are:

  • Make copies
  • Distribute
  • Make derivative works
  • Display

As I have already stated, managing assets is critical to the success of your business. Photographers’ most valuable assets are the images they create. The images that we create have tremendous value, even when the property we are photographing does not. I was reminded of this when the image of a Plain Jane house I photographed was used without permission as a backdrop for a Rocket Mortgage ad.

Google is critically aware of the value that images bring to their online presence. In Europe, Google’s use of imagery to enhance their searches has been criticized and the governments in Europe have taken action to protect their photographers. I’m certain that photographers reading this blog in Europe can add even more content on this subject matter than I can.

What Google has done to exploit imagery for their own benefit, in my opinion, is being duplicated in the real estate photography marketplace by aggregators. Aggregator is a technical term used by the MLS to designate web portals that distribute images and allow people open access to search for both active and inactive listings.

In my opinion, the most abused and copyright infringed sector of photography is real estate photography. Regardless of the terms granted to an agent by the photographer, every single photograph is being re-displayed, even if the house sold and years later was put on the market and sold again. Both new and old listing images are re-displayed after six months of the property being off market. In fact, every photograph of that house in the aggregator’s database is being re-displayed once that house has been off the market for six months.

To see an example, try this: Do a Google search by address for a house that you photographed that has been sold, and has been off the market for six months. You will almost certainly see old listing photographs still displayed. I’m not saying the aggregator is the infringer. I am saying that in my opinion, there is an infringement. If a person grants usage rights and they do not have the legal authority to do so, then they’ve committed copyright infringement.

As it pertains to rights-managed images, the only person with authority to grant usage rights is usually the creator of the image. In my opinion, this ongoing usage is beyond the scope of what the original agent usually intended and constitutes a new usage that benefits only the aggregators.

To put it in a nutshell, real estate agents lease usage rights from the photographer to sell a house. Assuming those usage rights were limited in the original license, once the house sells, those usage rights should be terminated. But for some reason, once the house is off the market for six months, every image ever taken of that house reappears. This is beyond the scope of the intent of selling the house because the house is already sold. Again, it’s beyond the terms of usage if the photographer rights-manages. If the agent didn’t sell the house and the homeowner hired a different agent who did sell the house, the evidence is clearly displayed once the house is off the market for six months. I’m not sure if any agent wants their failures to be displayed.

As I said earlier, images are the largest and most valuable asset the photographer owns. Whether the photographer recognizes their value or not, corporations do; and some corporations may be using your images regardless of your rights.

The Truth about Copyrights

I have been protecting my copyrights since 1983.

The use of copyrights and how photographers protect themselves has changed a couple of times since 1983. From 1983 to 2008 I've had approximately five copyright cases. In 2010, I stopped counting at 52 incidents of copyright infringements involving multiple images per incident.

For more detailed information, I strongly suggest you go to my website and read my blog post on third-party infringements.

The nature of copyright infringement is changing. It’s not clients who are infringing on photographers anymore. It’s third parties totally unrelated to the client that are harvesting images and using them. This not only is stealing from the photographer but it’s also taking images that were leased by your client and using them as well. This brings up an interesting question: Does the photographer have a legal responsibility to safeguard and protect the integrity of their client’s lease? Can it be viewed as negligence on the part of the photographer not to do everything possible to safeguard the integrity of the leased usage rights for their client?

You will hear people say that their images are copyrighted the second they take the picture.

Yes, that is true… in name only! It’s a paper tiger! Copyright infringers know that there is no technical legal path for the owner of the copyright to collect monetary compensation for an infringement if the work is not copyright registered. Period!

In order to file a copyright litigation lawsuit, the images must be registered with the copyright office.

If you have an attorney send out a demand letter to an infringer and the images are not registered, the infringer will usually ignore the letter. The infringer knows that unless the work is registered with the copyright office prior to the infringement or within three months of date of first publication, you are not entitled to statutory damages and attorney fees.

Legally, as written in the copyright statutes, publication is defined as when you show the work to another individual with the intent of further distribution. Case law differs slightly. In case law, distribution has been defined as when you deliver the work to your client.

Personally, I err on the side of the way the statute is written. This way, no gifted attorney defending the infringer will be able to argue that I published the work when I showed it to my client on the back of the camera for approval, which constitutes intent of further distribution. Typically, because many of my images are reviewed at the time of creation, I use date of creation as my date of first publication in accordance with how the statute is written.

Let me summarize the truth about copyright.

  • Unless you register your images, the notion of copyright is a paper tiger.
  • Last year, the Supreme Court ruled that an actual registration certificate must have been issued by the Copyright Office in order to file a lawsuit. http://thecopyrightzone.com/?p=1954)
  • All copyright cases currently must be tried in federal court.
  • Infringers know that you cannot force them to pay a dime for the unauthorized use of your work unless the images are registered.
  • Infringers know that if the work is registered, their best alternative is to settle prior to the filing of litigation.
  • Infringers also know that they’ll have to put up a retainer for the defense of a copyright case which, in my understanding, typically starts at $40,000.
  • If the infringer is found guilty, they will not only have to pay their own attorney but most of the time they’ll have to pay the photographer’s attorney as well, plus fines and statutory damages.
  • It’s truly a lose-lose for a copyright infringer, but they are betting that the images are not registered, which currently is a safe bet unless they run into me or another like-minded photographer.
  • Tracking firms that search for infringements are currently reporting 85% of all images uploaded to the Internet will be used without authorization multiple times.

I’ve heard the argument from many photographers that it’s too time-consuming to copyright register their work. I spend less than six hours over two months to register all of my images. I typically register 2100 images every 60 days. Keep in mind that a copyright registration is limited to 750 images. I’m completing three registrations in less than six hours, spread over two months. I probably should also point out that the cost per registration is $55 this is 7.3 cents per image.

Let me leave you with this final thought about the argument that photographers are too busy to copyright register:

Really? Really? REALLY?

Personally, most of my settlements have confidentiality clauses, but I've recently settled an infringement where the attorney representing the infringer insisted on writing a settlement paper and left out the confidentiality clause. So, I’m legally able to speak about that settlement. It was one image. My total time was less than one hour to confirm that the image was mine from my archive system. I sent a written statement with the original image and a screenshot of the usage to my attorney. Approximately 60 days later a settlement of $10,000 was reached. This image was created in 2008 and was infringed sometime in 2018. The image was copyright registered in 2009 after a first infringement by a different party. Unfortunately, because the image wasn’t registered at the time of the first infringement, I was not able to recover damages for the wide usage that they took. The best I could do with that first infringement was a DMCA claim to stop them from continuing to use it. After the image was registered, the second infringer that used it paid me a fair market value amount for how they used it. Please allow me to emphasize I was paid fair market value for the usage; not a windfall. The company used it for advertising and made hundreds of thousands of dollars. The first infringer made millions.

Just for the record, my goal is to change the behavior of infringers by altering the risk reward ratio. This change will not occur so long as I’m in the gross minority of photographers that register their work and enforces their rights.

Really? You don’t have time to recover additional damages on images you have already created, while simultaneously changing the behavior of copyright infringers which will result in increasing the numbers of assignments and increasing the value/respect of professional photography for the entire industry? Really?

What’s coming up next:

In the next couple of articles, I’ll go into detail about copyright registration as a system that’s tied to your archive system because you’re preserving an evidence chain for federal cases.

I’ll also go over the “nuts and bolts” or the anatomy of what it is to be in a copyright litigation, and its costs – both financial and emotional.

Then I’ll talk about methods and techniques for finding infringements and when and how to utilize services to help you to identify where your images are infringed.

 

100 comments on “Making a Case for Image Copyright”

  1. I will follow this for sure! I have already had several copyright issues myself. I feel that some of the companies out there that is suppose to help to protect us does a pretty poor job at it. The ones caught was not the companies hired to scope out abuse of my photos but sheer and dumb luck that I found them. Compensated....not enough! So....thank you Mike Boatman for showing us the ropes!

  2. Not only do I completely agree with Mike about the importance of copyright registration, but he is also right about that very few RE photographers seem to understand the actual value of the images they produce. You lock your house to prevent anybody from just walking in there, and taking what they want, right? Yet, most of you leave your life's work unprotected from anybody to take and do whatever they want with it. Make no mistake about it, your images are being used by organizations/entities for profit, and, they are making a lot of money using them. It's estimated that less than 10% of photographers register their copyright. So the risks are small that these infringers are going to get caught, and forced to actually pay for misusing something that isn't theirs. Well, it doesn't have to be that way. Personally, I registered 30,000 or so images over the past 10 years. Was it hard? No, but it does take some time to learn how and set up a system that facilitates it. Is it worthwhile? Oh yes!

    Many of you will recall how I have talked in the past about the need to rein-in the out of control theft and misuse of what is actually our creative property. It had gotten so bad, that it was a major factor in me deciding to finally semi-retire from photography almost two years ago. I had finally had enough of my images being used by a variety of places that simply had just "stolen" them. I'm not talking about the use in some little blog entry etc. I'm talking about commercial use for profit, by people that do not have the right to do so. It was time for me to stop complaining, and actually do something about it. So I took action, and retained a copyright law firm (Higbee & Associates) that specializes in finding infringements, and collecting settlements. They promised me great results, and they certainly have delivered.

    Their typical clients are big news agencies, such as The Associated Press, but my results were so impressive that they reached out to me about creating a program to consult with other real estate photographers about the value of protecting their work from copyright infringement.

    So, I worked with them to create a free, no-risk program designed just for real estate photographers. The program is designed to significantly increase the photographers revenue and increase the long-term value of their work, by getting it registered with the US Copyright Office. Best of all, the program requires very little time for the photographer, and I would help you get it all set up. Here is what it will entail:

    I will work with you to get your images in their reverse image search system so we can start finding infringements. Once results are provided, which is usually in about a week (or two), I'll walk you through how to review them on the law firm’s online software which you will have full access to, and give you some insights on how to maximize the potential. Once you approve a claim, the law firm attempts to settle it out of court. If they are unsuccessful, you have the option of trying to resolve it in court. For reference, I have settled nearly 100 cases and only one went to court, and it settled almost immediately, and it was significant.

    Also, of critical importance, if you are not registering your images, I will work with you to create a routine to get your images, past and future, registered. There is no charge for this other than the fee paid to the US Copyright Office, which is $55 for 750 images. The law firm is so optimistic that they will get you great results, they will pay the registration fee for you, and just deduct it from what they earn for you. So, if you are not currently registering your images, you need to start now, and I'll help you. If you already are registering , I can get you uploaded onto the reverse image search system. That's what makes the difference in actually finding infringements. The law firm works on a contingency basis, so unless they collect from an infringer, it cost you zilch, zero, nothing! That is that is the same deal as I have with them.

    This fixes all the "I don't know how", or "I don't have time" concerns that so many photographers have expressed, when it comes to copyright registration.

    If you are interested in talking about this, call or email me. If not, please - just do it yourself, and continue to follow Mike's detailed insight on this subject. Your survival and retirement may hinge on it!

    Best,

    George

  3. Mike thanks for writing this piece.
    It's important for our industry and its future.
    Second, to those photographers that espouse the "day rate" approach.
    Not only are you forfeiting your future you are making it harder for others to protect their's.

    It's akin to those who leave their doors unlocked and the resulting increase in thefts in the neighborhood because the bad guys know it's so easy.

    I've done a fair amount of research into copyright in general and in the Real Estate industry in particular. In order for it to get better, we have to band together to make sure the chronic infringers see the light and pay for what they use.

    It's too bad that most of the suit include a confidentiality clause which gives the chronic infringer a screen to hide behind.

  4. From the title I was expecting to see much more of a financial or business case to be made for copywriting photos. I really did not see that. This really was more about not being able to collect damages if the work is not copyrighted.

    The financial analysis in determining if you should copyright your work consists of determining if recovering potential damages warrants acquiring actual expenses. In short, is the money and time spent on copywriting less than the amount of damages you could potentially collect. The cost and time are real. There are fees associated with copyrighting material and time to both submit the photo and monitor their usage. The potential for collecting damages depend on what you are shooting, your skill and many other factors. The likelihood ranges from 0 to 100%. But in general if there is a 1 in ten thousand chance of you getting a one million dollar damage claim, it is worth putting in $100 in time and money. ($1,000,000 x 0.0001 = $100). If there is a one in a hundred case for a one million dollar settlement, it is worth putting in about $10,000. ($1,000,000 x 0.01 = $10,000)

    Every one situation is different, so saying everyone should or shouldn't is poor advice. In my case, it would cost in excess of $4000 per year in fees plus much more in time for submitting and monitoring. The money could be decreased by submitting on select photos, but at the price of increasing the time costs significantly. There is just not enough of a payout potential for me to financially justify spending that amount of time and money.

    As I stated above, every situation is different. Your business has it's own level of cost and potential for collecting damages. Run the numbers and make a financial not an emotional decision.

  5. Mike, I appreciate the time you took helping us all out. Do you or anyone reading this post have any experience or recommendations when it comes to using a company that hunts down offenders on your behalf? Also, digital watermarks with companies like digimark?

  6. @Jacob: I looked into both. Photo search technology is progressing rapidly, so anything can change tomorrow. From what I saw, those searches tend to have both high false positive and negative results. In other words they find a bunch of photos that they shouldn't and don't find everything they should. But that can change.

    I looked into digimark. The technology was impressive. The amount of alteration you have to do to the image before the warkmark is no longer readable is significant. Basically the photo is destroyed. You can also add it to an action in Photoshop. however, the fees associated with using it can also be significant.

  7. @Mike Boatman, Nicely presented. I'm a little concerned about your quoted time for registering your work. Since the Copyright office started limiting registrations to only 750 images per registration, I've just been registering my finished work. Those are going to be the images with the most value and the most exposure. Exposures I didn't use to create those finished images and test shots made while finding the best settings I could just throw away but I hang on to them in case a client wants a re-edit and I need one. It's also a poor use of time to cull and delete all of those rejects given the inexpensive cost of storage. When I'm outputting images for a job, I have a Lightroom preset for Copyright submission. I keep folders in a Copyright directory that are dated for the time period they cover which also acts as a reminder of when I need to make the registration. It's very easy in either Mac or Windows to make a spreadsheet of names from the image titles in a folder. Perhaps I'm spending an hour total per registration but I'm doing the work as I go along a minute here and there. I find that much easier than dedicating a whole day to the task. It also means it gets done. I know I'll procrastinate if it's going to take hours.

    @Neal, The $4K you are bringing up is including "monitoring" which isn't mandatory and might be a useless expense. Step one is getting the images registered so If you find an infringement, you can do something about it and that's much less. Also, If you are spending thousands a year on registration and monitoring, that should indicate you are doing a lot of business and should be able to afford it. As Mike illustrates, a single image infringement could be worth $10k which is a net profit if that's all you prosecute in a year. There's no point in paying for monitoring if you don't intend to go after infringements.

    @George. Please post the client agreement for the law office that will pay your registration fees. I expect that there is a huge backend cost such as a very uneven split and the promise that the law firm is the only firm that is allowed to prosecute your cases. They need some way to get a return, but it precludes you from getting a second opinion on a possible case if the law firm decides against pursuing the infringement or you disagree with them about a settlement. Registering images is very simple and only takes minutes. I'd love to keep the $55 in my pocket, but I hate paying my liability insurance too and registration is image insurance.

  8. Neil it’s not a matter of if you’re going to be infringed. You are being infringed now!
    According to three separate companies that scan for copyright infringements, permissionmachine, imagedefenders and Pixy depending on which one you speak with 80% to 100% of all the images uploaded to the Internet will be infringed by multiple infringers.
    One of my real estate images has been harvested and is currently being used as a poison link directing anybody that clicks on the image to a hard-core porn site.
    You should read my blog post on my personal site titled, Is Your Photographer Registering here’s a link.
    https://www.mikeboatman.com/is-your-photographer-registering/
    Obviously I can’t talk about the money but I can say concerning the one that I did speak about because it’s not covered by a confidentiality clause, it is closer to the norm than the exception.
    And you should not look at it as a payday or windfall. It’s about damages for the use that was stolen from you. It’s collecting damages, you’re not getting paid for an image, you’re being compensated for wrongdoing and damages with a bit of deterrent to stop this behavior going forward.
    Enforcement of copyright changes behavior. You only have to look at the blog industry were images were routinely used without authorization. Now I have clients that are bloggers that hire me to photograph because a few photographers enforced their copyrights.
    Ken Brown the time was total I spread it out over two months and it was for 3 registrations. With the spreadsheet that I do at the time and the registration process it usually takes me 30 to 40 minutes to actually complete the application and upload. And although I really can't talk about the money I wish I could. I will say this another photographer female told me that collects additional damages equal to 10 times her annual shooting fees and this represents only 20% of her total work time.

  9. @Mike, I'm not saying the infringement doesn't occur or that it's not a problem. What I am saying is that you haven't made a financial case that proves your point. You haven't proven that the benefits outweigh the costs. Emotional arguments like "It’s about damages for the use that was stolen from you." and "You are being infringed now!" are not part of a business decision. The question that you have not answered is "At the end of the day will I have more or less money in my pocket."

    I'm going to use some real numbers.
    Based on counting jpg files, we provided agents with over 75,000 photos last year. (If you want to verify, go out to my site. There are currently 6000-7000 photos for listings that are active today. Over 99% of them were taken by us. Extrapolate that out for the year) Filing costs at $65 per 750 would be $6500. You mention 3 registrations took you 6 hours, or about 30 minutes per registration. So 100 registration would take about 50 hours. At $50 per hour, $2500. We are now at $9000 in fees and labor on the off chance I might collect more than that in damages.

    I'm also going to make you prove those percentages you posted with independent sources. I just don't believe the 80-100% number. It's not realistic. Give me some sources that are not from image protection services. Better yet, you have access to 6000-7000 of my images, find the 4800 to 5600+ infringements you claim are there. Show that the infringers are sources from which I can collect a settlement.

  10. @Mike Boatman, your website comes up as a blank page. I can look at page source and see the code, but it won't display (Mac OSX 10.11.6 with Safari). Firefox 68 works ok. I'm not updating Firefox as they are forcing me to store my bookmarks online rather than keeping them private on my own machine.

  11. I'm with Neal on my BS detector beeping from the percentage of infringements being touted by Pixsy and Image Rights. I know that it isn't the case for me. A lot of what I do are distressed homes being sold by HUD, Fannie Mae, etc. I'll toot my own horn to say that he images are technically very good, the homes are a dog's breakfast so I'm not worried about massive amounts of infringement on those. Sure, somebody might grab one of those images, but I'm expecting that it won't be many. If it's another agent, all I may want to do is file a DMCA notice with the MLS, Zillow, Trulia and Realtor to have the image(s) removed. If the agent has had takedown notices filed against them previously, the MLS may start fining them. It could also damage their accounts with the publicly facing real estate sites. Pursuing a full court press against them with my attorney might not be the best approach. I'm not worried about getting work from them in the future, but if I'm too much of a hard @55 about it, word could get around and it's unlikely that it will be truthful.

    I wouldn't be surprised if it were said that 85% of photographers will have their work infringed at some point in their career. I've had some of mine copied and have also settled few cases but haven't wound up in court (yet).

  12. @Mike Boatman and George Gutenberg Thank you for such timely information. As a relatively new real estate photographer, now is the time to meld this into my workflow; consider as just another activity that needs to be done to completion. From reading this great article and comments it’s evident that this infringement is a big deal. Perhaps if enough of us take action the tide will turn favorably in our direction.

    In all honesty, I’m surprised that no one has designed some software application that will automate the photograph registration process. HHCTB?

    I will be reaching out to get assistance with this registration process. Thank you again.

  13. Again, I have to agree with Mike Boatman, I think all of you underestimate how many of your images are being used on the web by sites that should not.

    @ Neal, "I’m also going to make you prove....." I don't quite understand why you think it's appropriate to demand that anybody proves anything. He is not selling you anything, he is simply trying to help people understand copyright, the reasons for registering, but also want the process is. Copyright infringements, is something that you obviously don't care about, so that's a business decision you made for your business, I get it. There just isn't a reason to go after others that think that it is. Personally, I have no problem paying the USCO $55 to protect up 750 of my images. I'm only going to say this, that all my expense for registering since day one, was recuperate in the very first settlement, and that was almost 100 settlements ago.

    @ Ken Brown, "I expect that there is a huge backend cost such as a very uneven split " Actually it's a very fair split, in general, it's 50/50. More importantly, I decide what to do with reach case. Needless to say, if my attorney is working the case, why would I want to take it elsewhere given that my guys have already proved to me that not only do they truly know what they are doing, their success has wildly exceeded my expectations.

    George

  14. I'm under no illusion that most of my photos are anything worth stealing. And yet, the money I've collected the last few years finding my images on Pixsy and emailing the culprit for a chance to "pay me or take them down" has been truly amazing. Huge money for effort trade-off compared to what I normally do every day. Less than a month into this year alone, I've collected $1800 for a group of photos a company was using to advertise vacation rentals - it involved 2 phone calls that lasted about a minute each. Mike and George are absolutely dead on the money.

  15. If you can’t afford to spend the 8¢/image that copyright registration costs, you’re not charging enough money.
    Reasonable people can disagree about how much to charge, but surely this is a pretty good marker for what constitutes “too little”.

  16. @George:I could have worded that better. However, claims were made that were extraordinary, asking for proof is reasonable. In fact, many claims were made that are questionable for the average RE photographer. When someone presents you have to do this or "you’re losing money, not providing for your family, short-changing the value of yourself and your work" I'm going to present a counter argument. That is part of the informational aspect of this site.

    Guys, I see your work. It's great, people are going to copy it. You need to protect yourselfs. But, have some respect for those of us that make our business providing to agent listing average homes. Many of us make some pretty good money doing that. Don't tell us that we aren't providing for our families because we question filing paperwork to chase dollars that might not be there or if you do, have something to back it up. Something that relates to us.

  17. Mike Boatman, great article! I agree with everything you stated. I hope that everyone realizes the importance of registering their images. Not only for the potential of financial gain but also for protecting the rights granted to their clients.

    David Ward, I don't understand why you state "Second, to those photographers that espouse the “day rate” approach. Not only are you forfeiting your future you are making it harder for others to protect their’s." Using a "day rate" or "creative fee" has been used for a long time. The agreements also include licensing terms. Just because one uses a "day rate" does not mean that they are entering into a work for hire agreement.

    Scott Hargis, as usual, you are absolutely correct! This should be part of everyone's CODB.

    Not only is registering your images important but before that occurs you have to enter into a rights managed license agreement with all of your clients. Without a license agreement, you are basically giving away the farm.

  18. @ Neal, I would never say that you (or anybody else) was "not providing for your families", of course not. Nor do I think I'm lacking in respect, for what other photographers do. I think we all do our very best, based on focus, experience, knowledge, and passion for the trade.

    While I appreciate the kind words, I assure you, I've photographed plenty of average homes, and I do register those as well. Are they copied as often? I've never actually "measured" that, but would agree that they probably are not. Having said that, to me it's not what's in the image, it's weather my work is being used to generate profit by somebody, who doesn't have my permission. After years of staring at my images being used by others, the number growing year after year, I finally had enough. That's all.

    I do see things a little differently, because I've been at this for close to 50 years, and frankly, I've seen a lot. What concerns me, is that much of what most of professional photographers used to do, is falling by the wayside, in today's fast-paced business. Some of that has been good, some of it has not. I just think that when people are constantly stealing from you, you have to figure out, how to not only counteract it, but also discourage future such acts.

    While I completely agree with Mike, and think everybody should register their copyright, and go after those who grossly infringes on it, I also understand, that it is a decision that each person has to make for themselves and their business. I simply see this as an attempt to explain what's at stake, what the remedies are, and what does it entail.

    I've complained about the tremendous growth of infringements in discussions on this site, for many years now, and I've been arguing for copyright registration as well. So I know that most of "us", is still not going to do it. The big difference is, that now that I've mostly retired from photography, I can actually take some time to help photographers that are interested, only because it is still a really important subject to me that I feel passionately about.

    Mike is right about that settlements include non-disclosure agreements, so it is indeed not possible to get into actual dollar amounts recovered in any given case. But I can say, that in my case, it's been substantial, and my images are really not that special - yet they are used all over the place. Go figure!

    Best,

    George

  19. @George, This is very much a discussion worth having. Because your right, there is a lot of copyright infringement going on. Then there are sites like Zillow and realtor.com that are making a lot of money off the work of others. MLS system are selling the images to companies like listhub that resells the listing info and photos to anyone that pays. All those companies have indemnity clauses so that any suits would fall back on our clients.

    This did make me a little curious. So I created a free Pixsy account and uploaded 500 images, 300 were from December 3rd and I know are online. The rest were from yesterday and have not likely to have hit the web yet. So I should get 300 hits from my site and Realtor.com. Then lesser numbers from the broker's sites, Zillow and others. If I get one of those $10,000 settlement, I'll post that I was wrong and send you a case of beer. Check back tomorrow for the results.

    FYI: I hope I do have to post that I am wrong. I would be happy to send you both cases of beer, if it means I could make a quick $10,000 or even $1000.

  20. This is a follow on my comment yesterday related to Pixsy. It appears that Pixsy completed it's scan. Out of 300 images that are online and syndicated in the MLS, it found usages for 4. What is odd, is that for each of these 4 there were about ~20 other photos related to it that were posted on the same site that were not found. The photos showed up on sites that I expected, no infringements yet.

    At this point, I will say that the interface in well laid out and easy to use, but the search results are terrible. I will give it another 48 hours and see if something changes.

  21. @ Kerry, the "day rate" term was used as Mike used it in his article. My intent was to say that those choosing not to protect their images from aggregators, and other infringers are hurting all of us, as well as themselves.

    It's instructive to read the filing against Zillow that George's attorneys presented to the court. Looking at the dates of the various document filings in the case it didn't take Zillow long to negotiate a result that was apparently acceptable to George and his attorneys. i.e. He voluntary dismissed the case without prejudice.

    The filing includes George's copyright notice that is a good example of how to ensure one's rights are protected.

    The real estate photography industry has to get this situation under control and rationalized.
    The fact that companies like Zillow are monetizing our images to generate billions of dollars in revenue without compensating us is criminal.

  22. Disclaimer…. These are my opinions based on general copyright law relevant to any sector of business and not directed at any specific Corporation or individual but is general for all industries.

    Neal this is actually a wonderful debate. Thank you so much George for pointing out things that I cannot do to confidentiality clauses. There is a difference in don’t want to and can’t.

    Out of the 10,000 images I have uploaded to Pixsy they found approximately 400 copyright infringements from around the world. I currently have active over 200 infringements from around the world.
    For my the real estate images I’ve uploaded and believe me most of mine are plain Jane in the 100k to 200k price range Pixsy has found one or two per address and none for many address but, in doing additional research I found every photograph delivered to the agents (in my opinion) copyright infringed.

    106 addresses of properties only 6 addresses were not (I my opinion) infringed. This is a 99.5% infringement rate if my math is correct. (In my opinion) (nor am I inferring or making an accusation about any particular Corporation)

    Let’s use your numbers Neal and I think I can demonstrate the dollars.

    First a fact about copyright. It is strictly a libel law. In English you either did it or you didn’t do it the intent is irrelevant the only thing relevant is the action, was it use. If it was used without authorization it’s an infringement, (In my opinion generally speaking concerning copyright at general for any sector of business) At that point the infringer falls into one of two categories innocent infringer or willful.

    You stated that you have 75,000 photographs, for grins and giggles let’s cut that number down to 50,000 which is nowhere near my (In my opinion) infringement rate for my real estate images and I’m sure George can offer up his infringement rate for real estate images per address as well.

    Even if an infringer is found to be an innocent infringer there is still a fine, the minimum fine for innocent infringer is $250 per image. 50,000 times $250 equals $12,500,000. Point of information in the last three decades of all the cases where the verdict was found to be innocent infringer the minimum fine was only awarded three times all other awards were North of the minimum. Of course this white paper was based on innocent infringer’s across all sectors of industry.

    If I was legally able to move forward with your images, I would offer to buy your copyrights. I would pay the $10,000 to register them. I would put on temporary staff to screen capture the unauthorized usages. The same as a judge is barred from offering anything less than a mandatory minimum sentence applies here in my opinion as a non-lawyer. If I spurted any legal opinions above they are strictly my opinion’s as a photographer. Even though my opinions are based on actual experience, study and research.

    Collectively photographers can change the behavior in the industry of real estate. But as Kerry points out you first must have a rights managed lease agreement with the agent and second you must copyright register your images both are absolute requirements otherwise no changes possible.

    My goal is to give photographers tools and real insights from my experience. The next article I’m going to write will detail out exactly what happens in a confrontation that starts with the demand letter and leads to filing litigation. I should also state that of the cases that are actually filed only 2% see the inside of a court room 98% are settled out of court. And let me repeat myself just to reinforce it with copyright it was either used or wasn’t used. If it was used, was it used legally or illegally. No one has the legal right to grant usage rights except the photographer in most cases. The exception being work for hire or transfer of copyright ownership.

    In my opinion the real estate industry is eat up with a, wink nod, attitude, we photographer know what’s going on. My question is, are photographers allowing it out of ignorance, which is what I’m hoping to change, or are you allowing it out of willfulness.

    Final point Neal if your images were registered and you rights manage you potentially could have started negotiations north of $12 million. If you want more information you should contact in my opinion Michael Masterson at permissionmachine who has details that he is legally allowed to share. But since you didn't register......

    Please photographers, for the sake of all of us and the industry as a whole because real estate is not in a vacuum unto itself, please rights manage your images and copyright register them. I truly can't disclose numbers but typically awards are judged by the value of the image for the usage it was used for plus a penalty to defer future behavior. The value of the image used is not based on your agents use but the infringers use. Generally speaking regardless of industry.

  23. Like George my door is open I am willing to work with any photographer to assist them and educate them how to copyright register their work in fact that will probably be my final article exactly how to build an archive system that preserves an evidence chain for federal court that concludes with exactly how to copyright register.

    The goal of an attorney defending an infringer is to first try to avoid the copyright registration to date none of my copyright registrations have been voided even though many have tried.

    I have a system that’s developed from all the attempts to attack my copyright registrations as well as personal tutoring from the copyright office building my registration process.

    At the end of these articles I will be giving this system and the step-by-step how to away for free to everyone.

    And like George I will personally assist anyone that asked for help.

    My goal between the three articles is that you will know where the problem is what’s involved to fight it and then given you the tools to be able to fight.

    Whether or not you choose to fight is your personal decision. My only goal is to give you the information so you can make an educated decision. And I will not criticize anyone that decides to do work for hire, it’s personal based on your personal circumstances. But if you do choose to do work for hire, do it legitimately, not this Wink Nod attitude where you rights manage and then don’t enforce, that hurts all of us.

  24. @Mike, This is interesting. I have a lot of photos out there. Even if I can't do anything about last years photos and will have another 75,000 this year. Anything that pulls in extra money is good.

    So how are you finding these infringers?
    What is the nature of the infringement? Are they sites advertising the property outside of those specified in the license, photos being used for other types of advertising, scams.....?
    What license go you give your clients?
    How do you handle the indemnity clauses that tend to be tied in with agents loading photos to Zillow or the MLS?

  25. Also, how long does it take Pixsy to generally find where a photo is being used? The first scan was done within an hour, it did a terrible job finding the photos.

  26. This is all my opinion based on general copyright not specific to any corporation or entity but generally speaking in theoretical hypothetical terms.

    So how are you finding these infringers?
    I organize my archives by agent and then property address each folder underneath an agent name is the property address this way I can keep track of actual addresses that I photograph.

    Michael Masterson is not so encumbered, michael.masterson@permissionmachine.com for more details you should chat with him
    if George hasn’t started litigation process yet he can also give you additional details.

    What is the nature of the infringement?
    In my opinion and what I’ve seen are independent advertisements completely separate from the selling of the house. I can say that one of my images 125k house front elevation was used as a backdrop for Rocket Mortgage Ad. Obviously rocket mortgage is national.

    Are they sites advertising the property outside of those specified in the license, photos being used for other types of advertising, scams.....?

    In my opinion yes, some are not scams but are still being used in my opinion outside the scope of the license to benefit a 1/3 party only, that’s beyond the intent of the original upload or your agent.

    What license go you give your clients?

    It’s a general license by nature that limits the transfer of usage rights to any third parties without prior written consent and it establishes that I’m the exclusive owner of copyrights and no usage rights can be granted without my consent. That the images are to be used to sell a particular property by address by a particular agent only and that the license agreement expires with the listing agreement.

    How do you handle the indemnity clauses that tend to be tied in with agents loading photos to Zillow or the MLS?

    Generally speaking about copyright law,I think this goes to the wink nod I have been talking about. Legally only the photographer or owner of copyrights can grant usage rights period. Anyone else granting usage rights they do not have the legal authority to do is committing a copyright infringement but as the owner of copyrights it is absolutely your choice who you enforce against and who you don’t. You can choose to go after an innocent infringer and not the entity illegally granted usage rights if you desire. It’s your choice the sheer number of images is what makes it valuable even as an innocent infringer. In my opinion how innocent is an innocent infringer in a wink nod environment? Also most of the time it’s the Association that actually granting usage rights to the end infringer that’s making billions not the real estate agent.

    Typically Pixsy takes about two weeks to get a full report. But I believe Michael can show you exactly where to look and you can do your own searches by address.

    You could probably find everything you need to know by doing a Google search by address.

    The bottom-line goal here is to change the behavior so that the legal rights that we have as photographers are respected and recognized. Currently in my opinion there just being run over contrary to the law

  27. @Mike, I already have all the photos in a database that connects them to an agent(s), MLS number, address, time/date published, agency and more. What I want to know is the means you are using to find where the photos are being used. Clearly doing a Google Image search is not only time consuming but also doesn't find most occurrences and searching by address would only find those occurrences related to selling the property.

  28. @Neal, I have found my RE photos being used by a house flipper locally and another one in Pensylvania. By a digital magazine with over 2.7M monthly viewers. Another is being used by an interior designer located in Dallas, TX (I'm located in Iowa). A blogging site located in NC who has national sponsors and sells advertising space on her site. Just to name a few of the recent infringements I have found where they are using my images commercially.

  29. It's interesting to me that people are asking specific questions about meta data attached to images.
    First, its easy to use Photoshop, Lightroom, Bridge and other programs to add metadata to images that are created for distribution.

    What's critical for rights management is to ensure that the license conditions include a statement that stripping the metadata from the image is forbidden.

    It's easily demonstrable that many aggregators strip meta data from images when the scrap them from platforms such as MLS. There have also been posts here and on other real estate photography boards that suggest that the MLS platforms are stripping the metadata as well.

    In my view, a properly crafted license should include language making metadata stripping one definition of willful infringement.

    The filings for George's Zillow case (8:18-cv-01675) include a number of exhibits that include his images and screen grabs of Zillow web pages that include the same images.

    I know, from my own research that images that have detailed meta data have that meta date stripped by the time they appear on various web sites such as Zillow.

    It might be beneficial for the PFRE group to create a best practices document for metadata, registration and rights management to protect our intellectual property.

  30. @George, Thanks for the followup. I'll take a closer look. I have seen reports of some offices doing 70/30 or 80/20 splits in their favor along with retaining exclusivity over any actions taken with regards to the images they process for a client. I always thought that if a rational split and something more like a first refusal policy was in the contract, an attorney could do very well. The biggest hurdle is to get a Copyright holder to register and take action.

  31. "I know, from my own research that images that have detailed meta data have that meta date stripped by the time they appear on various web sites such as Zillow."

    A nearby MLS is requiring agents to agree to terms allowing the MLS to delete or change the meta data of images in addition to unlimited rights sans exclusivity. It's hurting me, but I've told my clients and agents I'm pitching that have asked that I do not consent to those terms. I contacted that MLS, the state and national NAB offices and have been told to not bother them and engage an attorney if I want to interact with them. My inquiry was framed around the new requirement being both in contradiction to the local MLS's and NAB's published rules and regulations regarding copyright and ownership of posted content in listings. My advice to the agents is to beware of being thrown under the bus. If the MLS is hit with a Copyright infringement notice and the agent has ticked the box agreeing to the terms when they upload the photos, chances are that the agent's contract with the MLS will have an indemnity clause that allows the MLS to settle or defend the complaint and require the agent to pay any and all costs. The MLS probably doesn't even have to notify them of the complaint before taking any action.

    I think I'm going to take a much closer look at Pixsy in the near future.

  32. Ken is absolutely right in that last post. There indeed MLS's that requires an agent to agree to the complete removal of all embedded meta-data. The problem is of course that the agent doesn't even know what that means, and since all they want to do is upload onto the MLS, they'll click on whatever achieves that. I find it hard to understand, why they would want to expose their own dues-paying membership to such legal jeopardy, not to mention just plain throwing them under the bus, not for something the member did, but for what MLS is doing. Here is the other thing that's been festering in my mind, why do they find it so necessary, to do it all in such a underhanded and hidden way, if everything is so on the up and up?

    Kind of reminds me of back in the day, if you had stolen a car, you'd change license plates. But if you were a real professional thief, you'd also eliminate the vehicle identification number, so that it could never be traced back to the original owner.

  33. @ Ken
    On you previous post, - yes indeed, that is exactly why I retained the firm that I did. I actually looked at this for a while. I spoke to a couple of others, (even tried chasing one down, that simply wouldn't even return my call as promised). I wanted a firm that was specialized in copyright, and given the number of cases I'm dealing with, they also have the manpower to stay on it, I'm very pleased with them, They know that I've been "preaching copyright" to other photographers for years, so I appreciate them stepping up with a great program that will allow me to really help other photographers to control what is rightfully theirs.

    @ Neal,
    Great, I'm glad you are taking a look. I have to say, that when I really started to look at this, Pixy was pretty new. I uploaded maybe 2000 images, and they came back with several hundred "hits". At that time I found a few that weren't matches, but also quite a few that I knew where out there, that they didn't match. Lots of them where legitimately licensed images as expected, but the sheer number of images that were not, really caught me off guard. The thing is, that the more tuned I've become to this, the more I see. Sometimes I wonder if I was simply blind before because I was buried in work. Then again, the number of image infringements have grown tremendously because our images art being shared with such growing group of 3rd party users that are not only well outside of the intended realm, but often in direct violation of our licensing rules, and original agent usage agreement.

  34. Ken, George, based on conversations I had about the current state of real estate copyright infringement I had during the conference in LV, the following seems a reasonable explanation for the action of the mentioned MLS organizations. And it reinforces the need for us to address proper rights management.

    Apparently many MLS organizations contract with a large company to provide the platform for their web services to agents. That company's primary business is collecting, organizing and selling real estate industry data. They are scrapping the MLS data as a resource for their principle business. The software they use to provide the MLS web services apparently strips the meta data.

    Its reasonable to expect that this is the motivation behind the MLS requirement for requiring the agents to agree to stripping meta data.

    Incidentally, most of the data in an MLS listing file is not subject to copyright protection because it doesn't pass the creative act test.

  35. Dave Ward your statement "Incidentally, most of the data in an MLS listing file is not subject to copyright protection because it doesn't pass the creative act test." I believe needs some clarification so that it's not confusing for novelist photographers just learning about copyrights.

    The part of the data that is not copyrightable are list of addresses, phone numbers, names this is all text data.

    The photographs are absolutely copyrightable.

    My photographs have been challenged by defense attorneys at least twice off the top of my head on two separate cases is an attempt to avoid the copyright registration. But the copyright office and the law is clear, if the photograph is unique then it's copyrightable. In the nature of real estate photography photographers are different heights their tripods are set at different heights many like myself use lighting the choice of lenses that we pick the exact angle that we pick the fact that we uniquely choose the angle and how to photograph the room, in and of itself demonstrates uniqueness and artistry even if the room we are photographing is a complete dump like when I photographed one that had trash dirt and garbage piled up 2 feet in the middle of the living room.

    As for stripping the metadata it's already a crime. Due to DMCA with a minimum fine of $2500 for each usage incident. The weakness in that particular law although is that the person that stripped the metadata had to have intent to do so.

    I love your idea of putting together a best practices contract for photographers and including in it specifically that the metadata may not be stripped out that would go a long way to establish and demonstrating intent.

    Collectively the same as photographers changed Flickr years ago when they were attempting a rights grab the same can be done here but only with us standing together and maybe it does take suing a few realtor associations and perhaps collectively going after the national Association of realtors. The real estate associations are absolutely aware that they're doing a rights grab and are currently taking usage rights that don't belong to them and granting those usage rights to large aggregators. This attempt of changing the rules is to cover their themselves for actions they've already done. In my opinion, speaking completely theoretical, in my opinion, not stating that any individual Corporation has committed an infringement it's my belief that close to 100% of all real estate photos are currently being infringed.

    There is a massive litigation possible right now if photographers who rights managed their agreements with their agents and copyrighted their works. Even if you didn't copyright before you can copyright everything you've done in the last three months and it would be eligible for attorney fees and statutory damages.

    I can't tell you where it is without crossing a redline. But I did share all of this information with about 42 photographers before I became unable. You can change the behavior right now by just having everyone register their last three months and band together. I know of at least two people who can talk in this conversation that have the same knowledge I have.

    If you let the real estate associations change the rules then their past actions will be buried and individually nothing will change except for the loss of your rights to own your works. This has consequences if that will follow you ever leave real estate photography because of what's known as "usual and customary". Furthermore, all copyrights are equal regardless of the quality of the image. I'll get into the consequences in my next article about copyright litigation.

  36. Any photographer that exposes an agent to lawsuits (the MLS is going to throw the agent under the bus) or eliminates their ability to upload to said MLS, will be blackballed. How am I wrong?

  37. For those whom are registering their images with the government and employing online services, are you also providing your agents with a "License & Terms And Conditions" document for them to sign in order for them to do business with you? Or is it assumed that they know about copyright? I was told it's mentioned on their licensing exam.

    Mine reads in part (with thanks to Scott Hargis): "The photos may also be used by the Client’s parent company for the sole purpose of marketing the specific property photographed. Ownership of the images remains with the Photographer..."

  38. The MLS is granting usage rights that they don't have legal authority to do provided that the photographer rights managed their invoices and usage agreements with the agent. The agent in my opinion was most likely acting in good faith otherwise they wouldn't of agreed to the photographers terms. In many cases in my opinion the MLS is not disclosing the rights that there granting downstream that they have no authority to do. It's clear from one deposition I was in that the head of the MLS was unaware of exactly what they were doing which I think is crazy.

    But to your point collectively change can be made without harm to individual photographers..... Individually you're correct.

    That's why you have to seek legal remedies you need to make certain it's worth your while. Willful infringement as a minimum fine of $750 per image. Legally again speaking as a photographer no one has the right to grant usage rights that they don't own it's a willful infringement. It's willful because they knew they didn't own the rights to do it. With copyrights usage rights have to be transferred in writing. Given the amount of educational material sent from the national real estate Association downstream to the MLSs specifically talking about photographer rights in my opinion they'd never be able to mount a defense to defeat willful.

    How many photographs have you done in the last three months. I know one photographer in the last three months at photographed 1500 images times $750 that's $1,125,000. Of course you're still going to be photographing until they tell you to stop. Would you change subject matters and photograph a different sector of work for $1,125,000? And that's the minimum fine.

    How many photographers in your area if you guys collectively been together and filed jointly and then offered to forgo the money in exchange for a proper working relationship that respected your rights would it take to change the behavior of what the real real estate associations are doing?

    Then you've got the downstream from the real estate associations that would fall into the innocent infringer category that also has a minimum fine. You've got upstream to the national Association that's feeling to enforce get the rights before you grant them downstream.

    Frankly you only have two options and it's your choice stop rights managing your works and do it straight up shared copyright ownership or fight for your rights this is where the industry is at an real estate.

  39. Terence that's the problem the images are not being used solely for the purpose of marketing a specific property! Third parties are using the images after the sale of the house for their own benefit beyond the intent of the original uploading agent. In some cases as direct ads to solicit data that is that is then sold to real estate agents.

  40. @Metadata conversation,
    I am the webmaster for my own site. So I am going to add in some points from that perspective. The metadata is viewed as worthless and potentially harmful file size bloat. It has no commercial value in photos, the public doesn't care about it, and only techy people know it's there. It increases costs, reduces download speed and has the risk of carrying virus and malware. To be honest, I really, really doubt that copyrights are even thought about.

    Now, metadata can help us in copyright cases, but watermarks are far more useful. If we are going to press for anything, it should be to allow for small light watermarks that don't get overwritten. Watermarks not only provides a notice of copyright that is visible without software, it also helps to establish our brand. You really can't make a case that you did know a work was copyrighted when the notice is right in the image.

  41. Terence, in my business practices copyrights, is paramount in my agreement, it's part of my brochure that I give out before accepting an assignment and I have a verbal conversation clarifying copyrights and usage before an assignment. The copyright ownership and usage is repeated on each invoice relevant to the particular property photographed. That's why I believe the agent is acting in good faith.

    In my opinion the rights grab is happening above the agent level and its systemic throughout the industry of real estate with total disregard for the law much less photographers.

  42. In that litigation deposition that I spoke about earlier, the take away from the deposition with the local head of the MLS was photographers were given their permission to put watermarks on their images, up until then it was forbidden. It doesn't change that the MLS is adding their own watermark which is a clear DMCA violation.

    The removal of metadata does reduce the value of the work because it turns it into an orphaned work. Metadata has long been established as an alternative for a watermark. Until the deposition with my local MLS adding a watermark by the photographer was viewed as advertising by the local MLS and was forbidden. They completely ignored the legal value of establishing ownership for the image. And unfortunately they still don't recognize that by adding their own watermark they're claiming ownership that they do not have which is a DMCA violation

  43. I'm going to add a little to what Mike said about what can be copyrighted.

    Facts can not be copyrighted. So all the information about a property, can not be copyrighted. The description is a maybe. Most description are so generic they don't count as a creative work, however some could. The photos are really the only portion of the listing information that can be reliably copyrighted.

  44. Mike and Neal, Thanks for explaining the differences regarding copyrightable material in a listing. I should have been more clear.

    What is clear is that Corelogic and Zillow, and probably others, are monetizing real estate photographs that they have not licensed.

    Their corporate websites offers a wide variety of data to potential customers. All of which would have much less value without accompanying photographs.

    Until real estate photographers, as a group, get together to rationalize rights management and make it common practice for all photographs used to market property for sale or rent others are going to make money at our loss.

  45. Boatman,

    Can you answer this please? 1) It is the agent who is giving rights away they do not own.
    2) the agent will take the brunt of any copyright issues if you decide to exert your copyright privileges because the MLS will throw them under the bus.

    If an agent had to pay damages of 30 x $750, what do you think will happen to that photographers business?

  46. @Mike Boatman, first thanks for starting this important discussion which has generated such a lively response. I had the pleasure of meeting many of you at the PFRE conference in Las Vegas (and thanks again to Brandon for staging such a successful event!). Talking with photographers there reinforced my own experience with the hundreds of photographers I’ve worked with over the last 30 years: only 2-5% of commercial photographers register their images. And that’s a generous estimate. Both the reasons for and resistance to doing that have been well covered above.

    My company Permission Machine pursues infringements on behalf of photographer and agencies (our service is free) and I back Mike strongly on the importance of registering and protecting your copyrights. Although we identify and pursue infringements for both registered and unregistered images, the difference in the settlement amounts is significant. It’s well worth the time and relatively minor expense of registration for the potential return on infringements. And I can guarantee that any of you reading this are being infringed regularly.

    And @Kerry Bern makes an excellent point too. Many of the uses we uncover for our clients are third-party infringements, images taken from a listing site and used to promote everything from countertops to pool furniture by manufacturers, contractors and service companies. And that’s just the tip of the iceberg. It doesn’t take much effort to discover that your usage rights are being transferred unlawfully and willfully. If you’d like to know more then please contact me privately and I’ll happily share where and how to document the illegal usages.

  47. Hi Frank,
    Can you answer this please? Yes

    1) It is the agent who is giving rights away they do not own.... Not necessarily, unless the MLS is demanding or has a contract requiring them to transfer usage rights then there are not. But for sure the MLS is granting usage rights they don't have downstream to third-party aggregators.
    2) the agent will take the brunt of any copyright issues if you decide to exert your copyright privileges because the MLS will throw them under the bus. Again not necessarily, if you bypass the agent and send the demand letter directly to the MLS and if you organized three or four or five photographers to join in that demand letter to the MLS it may not backwash onto the agent. Hypothetically speaking let's say the agent asked the MLS about ongoing usage rights and expressed they didn't have authority to upload in the MLS told them don't worry about it. Who's at fault then. But if you've only done 30 photographs in the last three months may be in your personal situation a partial transfer of owner rights is appropriate.

    It's a personal decision that the photographer has to make and I'm not going to criticize anyone for the decision they make.
    All I can say is I had to stop photographing real estate because of usual and customary and how that would damage my commercial photography.
    If I was only photographing one house per month I'm obviously not making my livelihood doing photography.
    But if you're making your livelihood photographing real estate photography you've got a substantial number of images that could easily offset several years of income if you were blacklisted. I've been defending my copyrights since 1983 and I have not been blacklisted.
    But again it's a personal decision you will have to make.

    If an agent had to pay damages of 30 x $750, what do you think will happen to that photographers business?
    Most of the time the agent is can I have an insurance company that actually does the paying not the agent themselves or the broker in fact it's the broker that would pay not the agent and they usually do have errors and omissions insurance. Ideally you should try to get the agent and brokerages on your side to go against the MLS they need quality photography because this whole problem could be avoided if they took the pictures themselves. You really think the agents of high-end properties or even midrange properties are going to want to give up quality imagery that shortens the length of time houses on the market? Especially if you had 1/2 a dozen or a dozen other photographers bringing this demand against the MLS?

    Collectively the behavior can be changed. It was changed with Flickr that try to do something very similar years back with a rights grab. Just my thoughts I hope I've answered your question. If you choose to not stand up for your rights please do the honorable thing and do a partial ownership transfer or dual ownership transfer to the agent so that they are in compliance with law and you're not adding to the wink nod environment of rights managing and then turning your back on infringements.

  48. Thank you Michael

    By the way Micheal Masterson is one of the two people I was talking about that knows exactly where this massive infringement is taking place.

  49. Mike Boatman,

    Thanks for answering my question, it's the best one I've heard and ive asked it on this forum a few times.

    Cheers.

  50. @David Ward " The software they use to provide the MLS web services apparently strips the meta data." Since meta data is part of the spec of images, stripping it off if it exists is a conscious act and written into whatever processing software they are using. The scarier bit is where the MLS is demanding that they can change the meta data. It's one thing if they delete is and quite another if they take your name off and substitute their own.

    @Mike Boatman, There are some photos that can't be registered or if they are, the Copyright won't be upheld. Things such as a stucco wall, or asphalt, a cinderblock wall, carpet and other images without distinguishable content. I believe that I've heard one attorney state that a photo of a sky could be hard to argue as well as an image of just sand dunes where there are no other protectable elements in the composition.

    @Terence, I don't ask or require clients to sign my licensing agreement or Terms of Service. I go over my ToS with them before the I do any work for them or only bind them to it once we've had the chance to review it. My Licensing agreement is provided before any work is done and is also printed on my invoices (on the front). For basic RE work, I don't negotiate either one to save time. If they want custom licensing or the scope of work really needs to have a proper contract, I'll will negotiate some things, but the prices go up.

    @Mike Boatman "It’s clear from one deposition I was in that the head of the MLS was unaware of exactly what they were doing which I think is crazy." That could be due to them not having legal counsel that's competent in Copyright issues if it's true. Somehow, I doubt it. The real estate industry is all about contracts and legal issues. For a MLS to not understand Copyright is not just telling fibs, they're telling whoppers. I can't see how else they would be able to assign a value to and sell photos. I can see lots of business opportunities for an organization to make lots of money if they can amass a giant database of RE images. Especially if they can get all of those images for free.

    @Neal McGuire" It increases costs, reduces download speed and has the risk of carrying virus and malware. To be honest, I really, really doubt that copyrights are even thought about." As photographers, we should care. The overhead for meta data is tiny and has little impact on bandwidth. With big companies trying to institute "Orphan Works" and Copyright Small Claims, the easier it is to distance images from the creator, the better it is for them. I looked into malware coming from meta data and there was an issue years ago that has long been dealt with. I still go to the odd hacker con and watch videos from the one with interesting content and nobody is reporting on malware/virus vectors from common image files' meta data. I don't think that it should be something to worry about. The Nigerian Prince phishing attack still works great for criminals to get malware installed on somebody's computer.

    @Frank "Can you answer this please? 1) It is the agent who is giving rights away they do not own.
    2) the agent will take the brunt of any copyright issues if you decide to exert your copyright privileges because the MLS will throw them under the bus.

    1) yes and they may not understand the pop up agreement they are being asked to click when they upload photos to the MLS for one of their listings. It doesn't take a college degree (or high school diploma) to get a RE license.
    2)This, in my opinion, is the biggest problem that the NAR at all levels has told me not to bring up with them except through an attorney. They are putting their members in severe risk of big fines. The practice of requiring unlimited rights also is in direct contradiction of their published rules and guidelines.

    I DO NOT want to crush my customers. At the same time, I need to protect my work as I'm already working in a low margin, high volume niche with REP. The brutal truth is that if I win a case and the MLS has to settle or satisfy a judgement, they are the ones that have to pay me and chances are very high that the agent they throw to the wolves will never do enough business with me to earn a profit of the same magnitude. The MLS will then have to trigger their indemnity clause in the contract with the agent and force them to reimburse them for the costs. That will stir up a wasps nest of controversy. I don't see good options for me. Ignoring the problem means my photography may not have any chance of earning income in the future. What happens if the MLS is brazen enough to sell the images to advertisers and make them available through a stock agency? I would wind up competing for sales of my own images. The best outcome would be for NAR and it's regional subsidiaries to adhere to the well balanced guidelines they already have and only ask for the rights to display, store and make limited alterations to the photos along with restricting the use to selling the home pictured and community photos used in conjunction with the listing. If they like my images and would like to use them for other purposes, it's easy to find me through the meta data and the only "no" they'll get from me is if they don't offer a reasonable amount of money for the license.

  51. @Ken

    The MLS and their lawyers are no dummies. They had this all figured out a loooooooong time ago. Either that or they got lucky since it works just as well for their first intent which was to get ownership of photos realtors take on their own. The first ever photos uploaded, I would imagine, en mass were by realtors uploading their own celly photos.

    I believe your answer to my questions are spot on. They have put our customers directly in the crossfire if you want to do anything about it.

    I remember a post on PFRE about what do do if an agent wanted photographers to sign a release in order to do business with them. That was to protect the realtors. I don't hear anyone talking about that anymore. I suspect that realtors simply aren't worried.

  52. All

    Would this be effective?

    A "Remember, remember the 5th of november" event by RE photographers.

    We get hundreds or even thousands of RE photographers to register 2 years worth of images and then everyone, on the same day, have a group of lawyers in a class action defend hundreds of thousands of images. Me thinks a lawyer group would be more than happy if the potential payout was 200,000 x $750. I guess the potential could be even higher than that.

  53. This is quoted from the PPA sample contract for Real Estate Photographers on their website.
    In my none lawyer view, this is a well worded Rights section for an agreement between a real estate photographer and their client.
    I also think that it provides sufficient basis for the client, by complying with its requirements to protect themselves from complicity in infringement committed by an MLS or its partners.

    "Rights: All Photos and rights relating to them, including copyright and ownership rights in the media in which the Photos are stored, remain the sole and exclusive property of the Photographer. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Photos only for promotional or advertising purposes directly related to the sale of the Property. Photos used for any purpose not directly related to the sale of the Property must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing.

    Photos may be uploaded to any MLS listing service solely for promotion of the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the MLS, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106. Photos may contain copyright management information (CMI) at the discretion of the Photographer in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Photographer for any penalties and awards available under the statute. Client is responsible for ensuring that the Photos are removed from MLS databases at the expiration of this Agreement.

    Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos."

    Using this license agreement, a photographer could file an action against the MLS, and/or a third party aggregator, without including the client, providing the client provides the photographer with a letter stating that they notified the MLS that the property was sold and that the photographs should be removed.

    It seems to me that the PFRE group should lobby strongly for this kind of rights language and rights management process to become the standard in the real estate photography industry.

  54. David Ward,

    Iiiiiiiiii like it...

    "...providing the client provides the photographer with a letter stating that they notified the MLS that the property was sold and that the photographs should be removed."

    The only problem is, by checking the checkbox, an agent says they have the rights and are reassigning them to the MLS. Which, of course, is a lie. You don't think that little detail will be brought up by the defendant's lawyers?

  55. Here's what could easily happen...

    If we, as photographers followed this...

    "…providing the client provides the photographer with a letter stating that they notified the MLS that the property was sold and that the photographs should be removed.”

    ...the MLS could simply require the agents upload a copy of ownership rights that have been transferred from the photographer.

    Look man, they own the gate. The toll road. And the fre is ownership transference.

  56. @ Frank - You stated "We get hundreds or even thousands of RE photographers to register 2 years worth of images and then everyone, on the same day, have a group of lawyers in a class action defend hundreds of thousands of images. Me thinks a lawyer group would be more than happy if the potential payout was 200,000 x $750. I guess the potential could be even higher than that."

    The problem with that thought is that for published images they have to have been registered within 3 months of first publication or before the infringement occurs to be eligible for statutory damages.

    I feel that the main intent of Mike's post is to try to convince photographers to start entering into a rights managed license agreement with their clients and to register their images in a timely manner. Both of which has to take place in order for us to change the practices of the MLSs and aggregates to start respecting us as content providers.

  57. @Frank

    "The only problem is, by checking the checkbox, an agent says they have the rights and are reassigning them to the MLS. Which, of course, is a lie. You don’t think that little detail will be brought up by the defendant’s lawyers?"

    I'm not sure that it would relieve the MLS of responsibility. The plaintiff's attorney could argue that it was not proper to assume that the agent was informed enough to understand the nuances of what was being asked. It may also be pointed out that the MLS is an entity formed to support agents, not place them in unfortunate legal dilemmas. As I've also pointed out, the published NAR and local association guidelines specifically state that no requirement shall be made to require the unlimited assignment of rights for submitted content. I'd have to look up the actual wording again, but that should be pretty close. I have to hope that a judge or jury would look at that and not give the defense attorney the points on that argument.

    If a good case is made for an MLS stripping the meta data as being a DMCA violation should an infringement go to trial, it could mean another nail in the coffin and a higher award to the plaintiff.

    Perhaps there is an attorney that would like to assemble a series of cases of the same sort. I know of a photographer that drunk some poison or something and morphed into a blood sucking attorney. He didn't turn purple like what can happen to Minions, but I haven't seen him in a while.

  58. @Kerry,

    Correct, I got that. I'm saying thousands of photographers register all their photos and then everyone file a class action after having 2 years worth of registered photos. A big enough lawsuit may turn some heads and make a difference.

  59. @ Ken - You are correct that one of NAR's mandatory rules states:

    "Participants cannot be required to transfer ownership rights (including intellectual property
    rights) in their listings or listing content to MLS to obtain or maintain participatory rights
    except that MLSs may require participants to grant the licenses necessary for storage,
    reproduction, compiling, and distribution of listings and listing information to the extent
    necessary to fulfill the defined purposes of MLS."

  60. Ken Brown…… WOW……Ready…. “I know of a photographer that drunk some poison or something and morphed into a blood sucking attorney.”

    I do not know who you are referring to but, having been called a troll myself I would like to lay out some facts......Enforcing your copyrights is not a get rich quick scheme.

    The court system and the judges don’t work that way. In fact they take a very dim view on people who try to use the system as a moneymaking venture. In a recent court case in North Carolina the judge stated, to use copyright law as an income source is an abuse of the law and the court.

    Enforcing your copyrights is about collecting compensation for damages that have already occurred.

    Let’s stop being polite, and call it what it is; an infringer is a thief.

    The courts award additional damages to compensate for the usage that was stolen by the thief in accordance with usual and customary for that particular photographer plus a dose of deterrence to change the behavior of the infringer. That dose of deterrence multiplies with additional infringements after the first.

    So my question to all of you photographers, how much will you charge a multibillion-dollar a year Corporation if you’re told they want the usage to be unrestricted copies, display, distribution and make derivatives worldwide with the additional usage of subleasing to third parties for profit without compensation or payment to you?

    The value of the image is created by usage of the image relevant to the person using it. In real estate specifically your agent the usage is grossly limited both in in time and users. But we all know this. But here are the rights demanded and granted to them by MLSs,

    “Materials You Provide; Account Use; Privacy; Third Party Web Sites.
    For materials you post or otherwise provide to XXXXXXXX in connection with the Services (your "Submission"), you grant XXXXXXXX an irrevocable, perpetual, royalty-free worldwide license to (a) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, prepare derivative works of or incorporate into other works, and translate your Submission, in connection with the Services or in any other media, and (b) sublicense these rights, to the maximum extent permitted by applicable law. XXXXXXXX will not pay you for your Submission or to exercise any rights related to your Submission set forth in the preceding sentence. XXXXXXXX may remove or modify your Submission at any time. For each Submission, you agree to provide accurate and complete information and represent that you have all rights necessary to grant XXXXXXXXX the rights in this paragraph, that XXXXXXXX use of the Submission will not infringe any third party rights and that the Submission complies with Section 2(a) above. You are solely responsible for all Submissions made through your user account(s) on the Services or that you otherwise make available through the Services. “

    Getty establishes the value of the above terms at $30,000 per image. Purring email bid I received from them.

    Personally I’ve only done one equivalent buyout in my career and it was in 1980s. The price tag for that one image was $10,300. This doesn’t mean that I haven’t received usage fees in the four and five figure range it just means I don’t do buyouts.

    A photographer enforcing their copyrights is standing up for the entire profession demanding that they be compensated for the usage that the thief is already stolen in accordance with their usual and customary for the value of that usage.

    Exactly how to prosecute this case has already been laid out. Attorneys are waiting on you.

    Having said that photographers are our own worst enemy.

    According to Rachel Brenke in an email she sent me, quote ”Photographers are allowing this to happen.”

    But nothing is going to change unless photographers enforce their copyrights. Attorneys are waiting on photographers what are photographers going to do?

    One more question, as a photographer in my opinion speaking about my opinion on legal theory, the infringement of all of your images as already occurred it’s not hypothetical. Do you really think it happen in a vacuum with the multiple infringers both innocent and willful not chatting with each other?

    I’m hoping that photographers are allowing this to happen from ignorance. Please don’t prove me wrong.

    I think I’ve exhausted myself commenting on this topic, it’s up to you guys.

  61. Here is an example of the impact we, as real estate photographers, can have on rationalizing rights management and curtailing willful infringement;

    Approximately 300 PFRE members attended the conference last November.
    If they each got two other photographers to participate that would be about 900 photographers.
    Presuming 25 images are licensed for each property that’s 30 properties per photographer in a batch registration.

    That’s 27,000 properties for the group. The USCO offers a 90 day window for registering published works. That’s approximately from January 1 to end of March this year.

    That’s 675,000 registered images in the first quarter.

    Presuming each photographer has a licensing agreement that roughly includes the provisions of the PPA model language and that each property sells that means there is a $506,250,000 risk for aggregators that scrap the images from MLS sites and use them after the sale. (The $506M is based on $750 minimum statutory damages per infringed image.)

    A half billion dollar risk should get the attention of chronic infringers. Continuing the same process for a year increases the risk to infringers to over $2 Billion.

    And that’s just the risk from 900 photographers, each registering images for 30 properties in a quarter.

    The risk to chronic infringers becomes mind boggling if more photographers were to join together to rationalize rights management and curtail chronic willful infringement.

    The point here is that as few as 900 photographers, working together in a concerted effort, can have a tremendous impact on rationalizing rights management and curtailing willful infringement.

    What I’m trying to understand is why the PFRE and other real estate photographer centric groups are not shouting about the need to pursue right management to get this problem under control.

  62. Dave Ward... My point exactly.

    Photographers have the power to make change because the infringements have already occurred. Even if you only registered the last three months which would make them eligible for statutory damages and attorney fees, the numbers are staggering. Especially if you don't leave an empty seat at the table.

  63. 1) who are the biggest infringers?
    2) for brevities sake, what do photographers have to do?
    Signed agreement with every realtor? Plus register all photos?

    If a signed agreement with realtors is required, how much pushback are we likely to experience? Me thinks alot.

  64. @ Frank -

    1. Who are the biggest infringers? Basically every website that your MLS syndicates your images to. Plus, there are also others that "steal" the images from those syndicated sites and use our images to market their services. For instance, I have an infringement case working where a digital magazine with 2.7M subscribers used one of my photos for an article that indicates that the photo was from Trulia.

    2. For brevities sake, what do photographers have to do? First, all photographers have to enter into a rights managed license agreement with their clients. Next is to register their images with the USCO within 3 months of first publication of the images. Without doing those two things then you are basically limited to sending a take down notice.

    I don't have clients sign an agreement. I include a clause in my agreement that states "By scheduling with us to photograph a listing of yours, along with your use of the products, signifies that you agree with these terms and they will remain in effect for all future listings. We reserve the right to change/modify these terms at any time." I also state in the agreement that no rights are granted until the invoice is paid in full.

    My agreement has been reviewed by two IP attorneys and both feel it's a sound document.

  65. @Mike Boatman, you aren't likely to know the photographer come law student (he hasn't passed the bar as it turns out) as he's a long time friend of mine. I rang him up last night and we talked for a while. I call him a "blood sucking lawyer" to his face (well, on the phone) and he chuckles and calls me something just as bad. Not every ambulance chaser is a bad person 🙂

    I've seen a lot of reporting on Copyright Trolls and those cases are different from what's being discussed here. I've seen how some have wound up getting fined, disbarred and arrested for the sorts of things they get up to. Often, they are using the courts to identify and squeeze settlements from people with no intention of ever taking a case into a courtroom. They are also several steps away from the creator. I'm not too worried that by filing many cases to protect my work that a judge would slap me (and my attorney) down. It's my work directly and I don't need the courts to grant me the ability to identify the infringers the same way as a troll does to force ISPs to give up customer data based on IP addresses and time stamps. If my cases wind up in front of a judge, it's because the defendant didn't want to meat out a settlement and my attorney felt we have a very strong case.

    The terms you quoted are very similar to those being demanded by a nearby MLS. I will charge far less than $30,000 for a Copyright transfer when doing RE work provided the customer has elected that arrangement in advance. After the fact, I'll ask for market rates per photo based more along the lines that somebody such as Mike Kelley would charge for his work. I have my buyout rates on my pricing page. Agents are welcome to hire me and own the the images after payment has cleared. I will still register the images as my work initially and transfer my rights within 30 days through the Copyright office. I want to maintain some leverage until payment is well and truly cleared. I include a much more bespoke service if an agent wants to go the buyout route. There's a minimum purchase, by the image, and they get me for up to 8 hours. Drone images are included at the same pricing as well as twilight images. The downside is there will be a separate charge for travel, expenses and I don't provide any archiving.

    @Frank
    I'd like to know where most infringements are found for RE photos. It tells me where to look.
    I don't have every RE customer sign a contract. I go over my terms of service with them when I first do work for them and any time I've made changes and provide them with a printed copy. It's my business practices, not a contract. The license I grant is printed on the front of every invoice or in the same PDF if it's being transmitted electronically. I don't know if it's important to always have it on the front page or if that's an urban myth, but I don't see that it hurts. The details of the invoice don't even take up a half page so there is plenty of room.

    The funny thing is that every once in a while an MLS or franchise tries to get photographers to sign a blanket Work Made for Hire agreement. I never would do something like that. They even put terms in that make all previous work subject to the same agreement which I'm not sure is legal.

    Since I own the Copyright from the moment it's recorded in a tangible medium and I register the images, I don't see why getting a customer's signature on the license I am granting could be required. It won't affect my Copyright one way or the other. I can honestly testify that I have verbally discussed those license terms with them and provided a written copy with each job on the invoice. In addition, the terms are published on my website. I'm not hiding anything. I'm not plotting to get them while they aren't looking. What the customer should be savvy enough to require is that they get a copy of that license in conjunction with each job so if there is any dispute, they can point to it.

  66. @David Ward, you've made an excellent point. MLS and its aggregators such as Realtor.com, Zillow and other portals are both willful and innocent infringers. The bottom line is that your images are still being used without your knowledge or permission more than 60 days after a property’s been sold. The front elevation image may even have been turned into an ad. We've been aware of this issue since last year and have a complete structure of how to organize your infringements. If you want to handle it yourself, be prepared to spend thousands of dollars and endless hours. Or let Permission Machine handle it and your costs are covered whether a case settles or not and we’ll be the liaison between you and the attorney and facilitate the process. You can reach me at michael.masterson@permissionmachine.com if you’d like to know more. And, of course, timely registration is vital as @Mike Boatman keeps pounding home. It’s never too late!

  67. The vast majority of real estate photographers are one man shops. Some have two or more other photographers helping them but are still “income replacement” small businesses.

    The principal willful infringers are large corporations with billions of dollars in annual revenue.

    The result, as experienced by several participants in this thread, is that when “Goliath” is confronted with an irrefutable pebble shot by a “David” they settle and seal the record.

    The only way that real estate photographers can gain advantage is to band together. There are a couple of options; A) use an association to create a critical mass; B) Find a law firm willing to amass a class that justifies a class action law suit; C) Hope that one of the few companies large enough to have an impact can win a significant enough award to foster change.

    The VHT v Zillow action suggests that C is unlikely.

    That leaves us with A or B. I think A is the more realistic.

    PPA and ASMP have large membership bases but they are too diverse to justify them taking on this issue. Or so it’s seems. AERP was formed, apparently in an attempt to create a voice for real estate photographers, but to date has been unable to gain any traction.

    So? What are our options? Suggestions?

    In my view, rationalizing and regaining control of rights management for real estate photographers has to happen for us to be financially successful. The question is how to create a strong enough voice.

  68. Dave Ward … Options, I have an educated opinion here of which, I can’t tell you why it’s educated. Let’s just say speaking theoretically in general terms and let’s talk through the process. Which is jumping the gun a little bit on my next article, anatomy of copyright litigation.

    There’s some question whether or not you can actually do a class action with copyright. That’s going to need the input of an actual IP visual arts copyright attorney. I asked my attorney about it in preparation to this comment. He says that he doesn’t have enough experience with class actions to answer the question. I highly recommend my attorney Evan Andersen at http://www.pixeliplaw.com if you need a small personalized boutique, incredibly good copyright attorney.

    My opinion is death by a thousand mosquito bites and don’t leave an empty seat at the table.

    I would also go with a firm that might have insider baseball knowledge about the situation. Last year prior to September 2019 I shared information concerning (in my opinion) a massive infringement of all of our photographs with approximately 24+ photographers that copyright register as well as Michael Masterson at permissionmachine. One of those photographers I shared this information with was George Gutenberg. 20 of the other photographers also said they would join in action.

    I believe what should occur is you should pick a firm and start turning images over and start the process of a claim. I would keep the claim as clean as possible meaning distribution of usage rights without the authority to do so. That would clearly point at the MLS and all the aggregators downstream.

    Most likely a judge when all of these cases start hitting the court system will consolidate them. What I’m getting at is you don’t necessarily need to build a class-action first you can start the ball rolling with you photographers turning this over to affirm that can scale up to meet the needs of taking on more and more photographers and cases. Ideally everybody would pick one or two firms and start funneling all the claims there.

    In my opinion I would go with someone that has prior knowledge and is already ahead of the curve. My attorney is not interested in such a massive undertaking because of the sheer numbers. Michael Masterson permissionmachine are not intimidated by the numbers. And to be fair I have no first-hand knowledge with the firm that George uses.

    Decide on one or two and funnels all the claims. Start submitting claims and let the numbers build. It will turn into a class-action when the judges consolidate all the cases. Don't wait to have the numbers start and let them build. Register the last three months if you're not registering you can add as you go along.

    The first step is to start.

  69. @Mike Boatman, No problem, it happens to me too if I'm just skimming rather than paying enough attention. I wasn't offended at all.

  70. @David Ward

    You said...

    "The vast majority of real estate photographers are one man shops."

    Is this vs. tour company photographers?

    I'm curious if you have data that shows this to be true. I have been wondering if this is true and how to find out.

  71. Frank…The next two articles I’m planning to write are the anatomy of copyright infringement litigation and the why and how step-by-step for copyright registration.

    Last year I gave a presentation to the Chicago chapter of APA on how to copyright register an the workflow and that it needs to be a system integrated fully into your archives moving forward because you are literally creating an evidence chain for federal court.

    The registration itself is the last step in that system.

    I provided to the APA Chicago chapter members two PDFs one with screen capture of the other one would just text on the step-by-step process of preparing files for the copyright registration and then the registration.

    These two PDFs are sitting in my Dropbox. They are free of charge to anyone that wants them. Here’s the link……https://www.dropbox.com/sh/z6pepwty2agqxf9/AAAoSAel2VJ0Fsa2eqgb6ULwa?dl=0

    It looks complicated but after you do it once or twice it’s really easy. For others I’ve worked with it has been helpful for me to walk them through the process first by phone and possibly the second time as well by the time the photographers done it twice they’ve got it down pat.

    Kerry sent me a PDF that he created that shows how he uses Lightroom smart collection to track and automate the collection of images and to alert him when he’s approaching 750. I provide that PDF in the dropbox also provided Kerry says it’s okay.

    Group, you prefer me to go into detail about copyright registration next and then move forward with the anatomy of a copyright litigation? If anyone has problems accessing the link above you can go to my website http://www.mikeboatman.com click on blog and read the article entitled, Is Your Photographer Registering. It’s the one it’s got the red text across the front of the image saying third-party infringements at the bottom of that article is the link to my dropbox with these PDFs as well as links to other useful information.

    My only goal here is to hopefully generate enough momentum that the systemic abuse of the law and photographers can be stopped. The national Association of realtors rules are facilitating infringements. This is systemic in the real estate industry because of complete disregard for the law. (In my opinion)

  72. @ Ken “Participants cannot be required to transfer ownership rights (including intellectual property
    rights) in their listings or listing content to MLS to obtain or maintain participatory rights
    except that MLSs may require participants to grant the licenses necessary for storage,
    reproduction, compiling, and distribution of listings and listing information to the extent
    necessary to fulfill the defined purposes of MLS.”

    Ken, can you direct me to where I can actually read the NAR rules when it comes to the MLS?

    Best

  73. I sent the NAR 2019 guidelines handbook to George, but anybody can find it on the NAR web site. While compiling some documents for George I came across the new SRAR (srar.com) rules for 2020 and there are some subtle changes that appear a tiny bit sinister, but I having shared them with an attorney ($$$). I also found some other local MLS rules that insist on the whole package of rights. Some even make a claim on the Copyright but, as I understand, that wouldn't hold up in court. Others require that they be allowed to place Copyright text on images with the MLS name.

    If you grap the NAR or local MLS guidelines/rules, be sure to note the indemnification clause(s). They will throw the agent into the volcano should there be an infringement or other action. Some also require that an agent follow the MLS prodedures if they spot an infringement of their licensed listing photos before they can pursue action in a court. Again, it would be nice to have some attorney's opinions on if that's upholdable. I'm not certain that any private contract can prohibit a person from seeking any legal remedy or delay them in seeking a remedy if they so wish.

  74. @Joel Rothman

    I would imagine if you could lay out several scenarios where you strongly believe a photographer could win in court with HIGH probability, you would have a path beaten to your door.

    Could you do that?

  75. Joel .. I'm delighted to see you join the conversation.

    A couple of quick questions, is a class-action even possible with copyright law?
    If not would a strategy for organization having photographers commit and start gathering evidence and then file hundreds simultaneously be akin to a class-action? Would the judge/court system consolidate the cases?
    If generally speaking regardless of industry if an innocent infringer, is sent DMCA takedown, but they refuse to remove the data and although, general searches will not display the image but you have the actual HTTP address the images is still viewable does this constitute a willful infringement?

    I understand the copy machine legal test but once generally speaking the copy machine owner uses the data beyond the scope of the original copier that becomes an independent usage which is copyright enforceable would that be your conclusion also. For example a person brings something in the copy, the copy machine owner can't be held liable if the person is committing a copyright infringement but if the copy machine owner creates a database of all the images and then uses those images to create ads for themselves now that's an independent usage which they can be held liable for with this be correct?
    If the copy machine owner then use those ads to collect data that it then sold would that absolutely constitute infringement because it goes well beyond the intent of the original person making copies?

    Doesn't the sheer numbers in real estate elevate the value for an attorney even for minimum statutory?

    Critical question here I'm almost certain you would take this case on contingency which would cover your fees but what about hard expenses?

    Typically hard expenses aren't part of the contingency fee, personally if given a preference I prefer to hire attorneys privately on contingency even if I have to pay the expenses, but then I have a substantial war-chest built up over years for this. I would venture to guess that a substantial number of photographers in this group do not have $15,000-$30,000 to pay the actual hard expenses. If the photographers wanted to start beating a path to your door as suggested above which I believe they should, how would you handle the hard expenses?

    Okay it was more than a couple questions but I think this will really help photographers understand what's at stake and give them some legally professional understanding.

    Thank you Joel for joining the conversation.

  76. Follow-up to Frank and Joel,

    Joel generally speaking regardless of industry is it a copyright infringement for a person or corporation to transfer usage rights to 1/3 party that they do not have the legal authority to do?

    If 1/3 party uses images that they do not have the legal authority to do because the person transferring rights to them did not have the rights to transfer in the first place would that not classify the third-party as an innocent infringer?

    In copyright law even innocent infringement has a statutory fine?

    Wasn't there a recent white paper analyzing awards given out strictly on innocent infringer and did in that white paper show that in the last three decades the minimum fine has only been awarded three times all other awards were north of the minimum?

    It's my experience that a copyright litigation is primarily about answering three questions,
    is it registered?
    who owns it?
    how much is going to be paid?

    Having hundreds of copyright cases if not thousands would this be your understanding as well?

    Given the three-month grace period for photographers that are currently not registering but are rights manage their invoices if they started registering today would not thier last three months of productivity be eligible for statutory damages?

    Thanks

  77. @Mike Boatman I've read through all of this thread. Thanks everyone for the insight and perspective. One thought ... most of what I've read is about covering ourselves for the likelihood of copyright infringement. I wish we could also, collectively, create a "best practices" guide, particularly for real estate agents and brokers. We've effectively left it up to NARS and the MLS to determine and recommend what should be in OUR contracts. For example, these are the three that NARS proposes: https://www.nar.realtor/copyright/listing-photo-sample-agreements. They also recommend: https://www.nar.realtor/ae/manage-your-association/association-policy/copyright-considerations-for-mls-photographs. All of these are effectively either work for hire or eviscerate the rights of the photographer. Rachel Brenke/TheLawTog is about to drop a contract that's specifically for real estate photography and I'll be buying it. But I'll also be putting together some information for my local clients about "best practices" from my perspective so that they don't perpetuate infringement opportunities. One of the key things I'll include will be the expectation that images are removed and/or a written request to remove images from Zillow, Redfin & MLS. The one exception for me is that I allow the use of the primary listing photo to be in perpetuity. I would love to see this thread continue with the inclusion of what you see as "best practices". I sincerely believe that most of the reason we see these horrendous rights grabs are out of fear and CYA. Let's tell them what we want rather than just developing strategies to go after them when they do infringe.

  78. Tacey first and foremost thank you for being so diligent to read through the blog which is a whopping 3000 words and all the comments.

    Let me be very straightforward....... if you rights manage your images I would venture to say 99% of your images are currently being copyright infringed. Even if you did photography 10 years ago.

    I have personally spoken with the head of the MLS in my area. The MLSs are absolutely aware of the rights grab their attempting to do. The MLS president in my area was even subpoenaed to testify in a deposition concerning usage rights.

    It's been stated to me that the real estate side does not want to change. They like it the way it is. And I should stop pushing because nobody wants it to change. There's a Inman interview on YouTube with a web aggregator. The CEO of this aggregator stated in the video that the recent redesign of their website has increase their revenue by 14%. I understand why they don't want to change.

    They are getting our images to enhance their websites which is creating public draw that is allowing them collectively to sell products and increase their revenue.

    I once had an infringer tell me that my problem is, "You are handicapped by moralistic thinking." Copyright law is very clear, you can't transfer usage rights if you don't have legal authority from the creator to do so. If infringers could care less about law, why do you think they're going to honor a contract?

    In my own practice, I give my clients a brochure where the first paragraph is about copyrights and usage rights, then I insist on a meeting where I verbally go over terms of usage and specifically talk about copyrights. Then lastly I repeat usage terms on every invoice specifically to the address that I'm photographing. But yet 99.7% of all of my images were infringed.

    The following statements are my opinions:
    The real estate industry from the national Association of realtors down to the MLSs does not want to change.
    They do not care about the law. They only want what they want and up to this point they simply taken it. Again with total disregard to federal law.
    Some MLSs are currently trying to retroactively establish rights grabs contracts forcing photographers to give up their rights in order to work.
    If they want to force photographers to give up their rights then they should hire employees and create a photography department. This way they would own the photographs.
    But they don't want to incur any additional overhead they won't the benefit of photographers talent and craftsmanship free of charge to make money for themselves. They know what they're doing. The only question is are we going to continue to allow them to do it?

    Per an email I received from Rachel Brenke concerning the subject matter she said," I'm fully aware of what's going on, photographers are allowing this to happen."
    There is an easy fix but the real estate industry doesn't want to do it because, they like the prophet they are making without having to pay for the usage.

    I truly believe that the real estate agent and the broker that the agent is working under that signed all of my contracts did so in good faith. And I'm sure this is true for the agents that each of you work with. The rights grabs are happening north of the real estate agent. But you can't tell me that the head of a local MLS is not aware of standard practices concerning photography. Which again points to the contracts that the agent signs no matter how precise it is will not fix this problem. Collectively it's going to require forcing them to abide by the law.

  79. It looks like I owe Mike a case of beer. I did some looking around on my own and found some interesting things on popular RE sites.

    Since I didn't specify the type of beer, I am now looking for the "BEER" brand of beer. The white cans with just the word "BEER" on them. If there is anything else out there that is even cheaper, let me know. (Just kidding)

  80. Neal Thank you......for the beer! Oh by the way, I will be in Kansas next month shooting; maybe I could swing a little south and you can drink the beer with me?

    I want to give you guys another thought, and is it ridiculous to think that you may have forgotten THIS.

    (THIS) is the real estate agent and broker needs you in order to do their business. Without you the industry goes back to where it was 5 to 10 years ago when agents were taking their own photographs. I've seen some of these photographs the agent thought the photograph of the room was a close-up of the ceiling fan......... might be why they are real estate agents and not photographers?

    I was speaking with a photographer yesterday and she asked me why did Rachel Brenke say "Photographers are allowing this to happen.” and how are we allowing this to happen? My answer was by not copyright registering your images and by not enforcing your copyrights you are allowing this to happen. And the reason you're not doing this in my opinion is because you forgot how important to real estate you are.

    Do you think the real estate agents and brokers want to take a giant step backwards to their photographs?
    And I certainly no that the third-party aggregators don't want to have to start paying or give up usage of your work that's enhanced their visual presence which is been accredited by them with a 14% increase in gross revenue.
    The MLS, really don't want to tell the agents and brokers they have to use their own photographs so there systematically trying to establish rights grab without incurring expense for what they've already taken and done.

    My next article is already been delivered to Brandon. I talk about what it's like to enforce your copyrights and what's involved. It's not like the Hollywood produced show Law and Order.

  81. Boatman,

    Many agents and brokers see photographers as a dime a dozen. The tour companies don't chase copyright either. If they did, you'd hear about it. I believe the biggest reason real estate photographers don't bother with it is the belief they will lose a client.

  82. We either come together and starve the tour companies (I think it can be done. Especially since those photographers are self employed anyway. I'd bet near 100% of tour companies contract out and don't make much, kill their own vehicles, supply their own equipment AND are not guaranteed any amount of work.) OR something will happen (I can foresee how it could be done but will not comment) where a control mechanism is enabled to refuse to hire you unless you give up the rights.

  83. @Frank, VHT won a very large suit for infringement.

    I worry about my customers because they have signed a contract with an indemnification clause that it likely to put them in a bad spot because of what their local MLS is doing. The very same MLS whose purpose is to support those agents. I think they've lost sight of what they are supposed to be doing and now have the mind set of being as big of a profit center as they can get away with on the backs of those agents. The agents and brokers are also at a big disadvantage. They don't see that they can walk away from the MLS without shooting themselves in the foot or both feet.

    I'm not sure that an MLS that settles with a photographer with an NDA as a condition can tell an agent about the case in a demand for indemnity. Hmmm, that might make it difficult to enforce the indemnity if the agent fights back and refuses to pay an invoice with no attribution. The BOFH reasoning is that a settlement is going to be far more money than the profits from one agent that a photographer might lose. I keep saying that I don't want to put my clients in that sort of predicament, but the alternative is to be a door mat and let the MLS and their subscribers use the images stolen from me for free, forever.

  84. @Frank, I hadn't heard that it's gone back to court and that the original award was cut in half at one point. For some reason it looks like it was decided that some of the images didn't qualify so it has to be re-argued. I still don't think it bodes well for Zillow even if the court cuts the award in half again. Zillow is a professional publishing company so they aren't in a position to ask for leniency because they didn't know stealing was wrong.

    I wish I knew how to look these things up (if the info is freely available). If Zillow is found liable again, there could still be the same award if the appellate court sent the case back on a procedural technicality or held that some of the images don't qualify and only the smaller set of images can be considered this next time around.

    The prevailing party may still be able to be awarded fees and costs, so having the case spend all this time in the courts is going to be expensive. Zillow might have been better off settling.

  85. Ken and Frank.......VHT versus Zillow, abridged summary of the results. The jury got it right but in the Ninth Circuit, Court of Appeals reversed a portion of the verdict .

    There are two categories of usage in the case. The first category of unauthorized usage was the ongoing display of the images. The second was ZillowDigs where individual images were cherry picked by zillow employees to be used as ads in a separate section not associated with the ongoing usage.

    The ZillowDigs infringements standind and the verdict is guilty. This has not been changed.

    As for the ongoing usage that was reversed by the Ninth Circuit appeals court due to volitional conduct. Which means a person didn't make a conscious decision to alter or use the images in a different manner than they were originally intended for by the uploader. This shifts the liability to the upload.

    The court ruled in the Ninth Circuit appeals upheld that when Zillow cherry picked images for ZillowDigs there was volitional conduct.

    To establish volitional conduct a company must use the images independent of the original person purpose for uploading the images. This could be for an ad that only benefits the website display company, a new section on the website that has nothing to do with selling the house and only benefits the website itself etc.

    So generally speaking for any industry if the display web takes the images uploaded and uses them for a different purpose it's an infringement. The additional usage demonstrates volitional conduct even if the additional usage is part of automated program because, a person had to program the action.

    The courts have ruled that whether a person does the action or automation does the action it's a difference without a distinction.

    Please consult an attorney to confirm my legal assertions and opinions because I'm a photographer and this is not legal advice it's only an attempt to clarify the statements above.

  86. To expand just a bit on Mike's comments.
    There were arguments submitted in January this year.
    The case is still ongoing with the original court on the Appeals Court remand.

  87. @Mike Boatman, Thanks, that makes sense. I'm glad courts have ruled that automation makes no difference. Since somebody has programmed the action and it was likely under the direction of a person or several people, there shouldn't be any distinction.

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