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Many Agents Still Don't Understand Photo Licensing

Published: 12/07/2018
By: larry

Darren in California asks:

About two months ago, I photographed a relatively nice property for one of my top clients. Today, I saw a post on LinkedIn from another real estate agent in a completely separate brokerage posting one of my photos and advertising that he sold the property. I've never worked with this agent. I'm assuming my client lost the listing, the home owner obtained a copy of my photos, and gave them to the new agent, who then re-listed/sold the property while utilizing my images without consent. What is the recommended course of action here? It seems tacky to reach out and ask for compensation for using the images.

I'm not hard up for the money; it just seems like a classic issue of someone using a professional photographer's photos without permission. In my terms and conditions of use, I provide an exclusive license to the purchasing agent only for the duration of their listing agreement. Any feedback would be greatly appreciated!

The most important thing to do is to find out the facts of exactly what happened. You can start by having a friendly discussion with your client and/or the offender so you clearly understand the facts:

  1. Was your client involved in this violation of your licensing agreement?
  2. Does your client clearly understand your licensing agreement?
  3. Or did the offender just grab your photos online? Or as you suggest, get them from the homeowner?

If the offending agent grabbed your photo off an online listing someplace, probably one of the most effective ways to put a stop to this behavior is to have a personal or phone discussion with the managing broker of the office the offending agent. The managing broker is less likely to blow off the incident and will be more attuned to the legal potential. No need to threaten the managing broker, just have a friendly discussion that demonstrates you understand the legal facts involved.

Agents still need a lot of education in this copyright. There is probably way more of this kind of thing going on than you can imagine and the only way to stop it is to educate agents.

12 comments on “Many Agents Still Don't Understand Photo Licensing”

  1. He may be the buyers agent. so, yes he did sell the property. Reach out to your client before you do anything else. One other thing, was it the the lead photo he used from the MLS listing. if so the MLS claims ownership of that one photo and the listing agent agrees to this by default. Lets not get into some legal bull, just telling you how it is. NOW, if this is as I have outlined, I might send the new agent politely asking to be his Photographer of choice since he is already using my work.

    On the topic of getting more work, I have started asking an agent why they used me, then someone else. Then I comment that I may be a vendor, a commodity but loyalty goes very far in this industry. Use ME until I don't live up to your expectations and if I let you down, tell me what I did wrong even if you do make a change. I read photographers testimonial pages and never really believe them so I started a testimonial page with a different slant, these are the Realtors that I have shot at least 15 properties for (it's a pretty good list with another 5 to 7 going on later this week).. What better testimonial is there than being used again.

  2. My advice is just take all your frustration and wasted time thinking about it, and focus it towards something that will actually be useful. For example, like an across the board price increase this year. You saw another person using your photos without a licenses? Oh, must be time to start thinking about another price increase across the board.

  3. Contact CRMLS and let them know they are using your photos without your permission and they will take them down immediately. I've done it many times! If the house has already sold and is no longer online then call the Broker and discuss with them the new PIA (property images agreement) document set by CAR that is required for every single property photographed and put on the MLS in California.

  4. "The new PIA Document set by the CAR that is required..." BS, it is not required, it is suggested and it is full of errors that only an ill informed, desperate individual would agree to and sign. Anytime the CAR come out with "suggestions", you can be sure they are self serving and lack the force of law.

    Bill and Andrew have the experience to know this is not the issue to fight, rather, take advantage of it and use it to your advantage. Maybe with the right finesse you can turn a offender into a client.

  5. In the RE business, the "Selling" agent is the one who brings the buyer and sells it to their buyer client. The "Listing" agent is the one who represents the seller and who hires the photographer. In my mind the selling agent using the front photo to advertise the fact that they sold the property is "fair use". Assuming that they are not using all your photos to list and sell the propterty.

  6. You've been ripped off. A good first move would be to contact the agent you made the photos for and ask them about the listing. If your customer gave the images to a new agent without your permission, you now know why it's a good idea to talk with your clients about what they can and can't do with the images you provide them. You may find out that the agent that stole your images may have nothing to do with the sale of the home or maybe they were the buyer's agent. They have no rights to use those images in any case without your permission.

    If you haven't registered those images with the copyright office, about the only thing you can do is demand that they are taken down. If they won't take the images down and the images are on a picture hosting service, you can send a properly formatted DMCA take down notice to that site. If the images are on a real estates office's site where they are working under a broker, you can contact the broker. You can't take them to court without a registration and you would have to pay an attorney (no contingency since they can't threaten legitimate legal action) to handle it for you. Register your images. The MLS has no rights to the images since the original agent does not have the right to assign any license of your property is you didn't grant them that right (in writing). You do have a written license policy, right?

    You should police your images so YOUR clients are credited for their marketing savvy and images they have commissioned are not usurped by others to advertise themselves fraudulently. You should get compensated for any use of your images. What you charge or trade is up to you, but if you get to be known for giving your work away for free, you may find it increasingly hard to get paid. I'm more of a hard @ss than many others. I feel ripped off when people use my images without my permission. It's hard enough to earn a living wage in photography these days and if my work is good enough to steal, it should be good enough to get paid for. The other argument is that somebody that feels it's ok to steal images online may not be a very good customer. I don't go into these things with the pin out of the grenade, but I'm also not going in wearing ballet slippers and carrying a bouquet of flowers.

  7. @Michael,

    "In my mind the selling agent using the front photo to advertise the fact that they sold the property is “fair use”."

    That's entirely incorrect. The buyer's agent can advertise that they represented the buyer in the transaction, but that does not give them permission to use MY photographs. It wouldn't even matter if they happened to be in those photographs.

    "Fair Use" doctrine in Copyright is a very difficult subject but, nowhere in the guidelines does it come close to mentioning anything like what you are inferring.

  8. Fair use never applies to commercial usage, only to certain non-commercial usage deemed to be in the public interest, such as documentary or certain educational purposes, or for criticism or commentary.
    If I find a real estate using my images in an unauthorized manner, I will typically charge them for continued usage at least what I charged the agent who commissioned the photos. They are legally liable for the usage to date. Whether or not I will permit them to cease usage without payment for usage to date depends upon the situation. If it is only usage on their website, I might let it go with immediate cessation. If they have possession of high resolution files and have already used print versions of the photos, that would usually be a different matter.

  9. I completely agree with Ken Brown. The syndication of images through the MLS systems has greatly increased the unlawful usage of our images and of course it is hard to police. If we stop valuing ourselves and let things slide by soon real estate photographers will think it is the norm to let things go. This degrades the value of our photos also and our importance to the industry. Please have some interest in your work and retain ownership of your photos at all times. I recently had this put into action. I shot a 3 million dollar home a couple of years ago for a loyal client. She lost the listing, though I was unaware. The new listing agent who is the top agent in Denver, contacted her and asked to use the photos, she told them to contact me and that they could not use the photos without getting in touch with me. They did make contact but after they had already posted the photos to MLS and all over a huge international real estate firm. I contacted them, asked them to pay me $600.00 for usage of the photos (they are able to get their properties photographed free from the agency) or take down the photos from everywhere in 3 days. She paid. I took the $600 and split it with my client.

    Please stop allowing people to steal your property! I believe the next thing we need to do in start going after the MLS syndication systems, collectively and not allow the regional MLS to put their "copyright" on our photos. We need to be allowed to put our copyright on our photos!

  10. This a perfect opportunity to reach out to this agent and let him know that you are the photographer of that particular photo and that you hold the copyrights to it. If he is local, then you may be able to get some business off of him by being nice and selling yourself. At the minimum, I would tell him it is ok use the photo as long as he offers a link back to your website giving you credit for it.

    This is win either way for you. You can gain more business, gain advertising or boost your SEO with a backlink to you or website. If your lucky it it maybe all 3.

  11. Full Disclosure: What I am about to say will not be popular...but it is true regardless.

    Every real estate photographer needs to start squaring away their mind to the realities of the customers they are dealing with. When Ken talks about "hat does not give them permission to use MY photographs"...the realities of the situation are being ignored.

    Selling agents are going to announce to the world on social media that they have sold a house after they have done it. Period. Whether you allow for them to use the photo in their announcement or better plan on not giving a hoot when they do.

    Now of course, the legal beagles who love to wrap their arms around the "letter of the law" of their copyright will freak out at this idea. They will talk about how we all need to band together in solidarity and call these agents out. Cause them problems. Raise a ruckus. "Educate" them. Because that's the only way to see things changed.

    This is likely not in your best BUSINESS interests.

    Now it may be true that if you're on a crusade to be "right"...then you win. But being right is an empty victory. And that's all that being achieved here. Let's be clear. Buyer's agents are NOT going to ever start paying for the right to use your image in a social media announcement that they sold a property. They're not. We all know it. So there is no money to be made there. So when they DO use're not losing any money. Because none of them are ever going to pay anything in the first place.

    But you know what DOES have a big chance of causing you to lose money?

    Branding yourself as the nit-picky, problem starter. And that's EXACTLY what you would become.

    As an agent, I can tell you that I do NOT have time for petty nonsense like that. I don't even have the time to field those kinds of phone calls. I would feel like I had lost money just having the conversation. I would smile and nod at the discussion...and it would seem like we had a meeting of the minds...and then...when we hung up the phone...

    I would burn you to the ground.

    Seriously. Because while there is no "union of real estate photographers" out there...the Realtor community is pretty close-knit. And they DO look out for each other. Their business 100% depends on each other. So if I myself do not want to deal with stupid nonsense from a legal beagle photographer...I know for a fact that my fellow agents do not want to either.

    So they must be warned.

    They must be warned not to ever consider doing business with you. There are plenty of photographers to choose from. Good ones too. And with so many to choose from, EVERY single Realtor benefits from the trouble-makers being rubbed out of business. Nobody wants to deal with that...and the surest way to ensure that nobody HAS to deal with that is to pass the word that "THAT" photographer is the trouble maker. Time to sound the alarm.

    So again...common sense says to leave that particular land mine alone. Now I'm sure that someone will go right back to "their legal rights" as soon as they read this. Have at it.'re right. The law is "technically" on your side. But you know what I hear when I see people saying stuff like that in light of the bigger context I just described? I hear my 10-year-old son. You know...when they start to get all nerdy and argue and saying stuff like "TECHNICALLY this..." and "TECHNICALLY that..." When my kid does that and thinks that he can use the word "technically" as a loophole to talk back to his parents...I want to slap the smart-aleck right off his face and say, "You better TECHNICALLY shut your trap and do whatever it is your mother tells you." I get the exact same feeling someone is squeeking about how the law is "technically" backing up their position on this kind of thing..but everyone can tell that they're really just wanting to be "right" (like people want to be right when arguing politics) at the expense of profit...when I see drives me up the wall.

    So may have the legal high ground. But make sure you write down on a post-it note, "I bothered a Realtor about using the pictures of the listing he helped his buyer to purchase on this date in 2018" and put it in a conspicuous location. Then, when your business slows down...or doesn't grow at the pace you think it should be growing regardless of your best efforts and good customer service....when frustration begins to set in...just go back to where you put that post-it note and remind yourself that once upon a time you felt satisfied in being "right"...but now you have the unpleasant reality of dealing with the unintended consequences of being "right" on this particular issue.

  12. First off, Teri, I took offense to "Please have some interest in your work and retain ownership of your photos at all times." - I take great care in my work, simply because another agent used my image without consent does not say I disregard my images. Secondly, I agree with Brian above. For the purposes of Real Estate Photography, it pays to be flexible and maintain good standing with your market of clients, not berate them over legalities. For my particular situation above (the origin of this post) - I reached out to the agent, it turns out he was representing the buyer. I informed him that I photographed the property, I work with other agents in his office, and I would love to have his business the next time he has a listing for sale. He complimented me on my work and said he'll be calling me for his next listing. We have a shoot next week scheduled. In this situation he used one of my photos, unknowingly, I reached out and made a friend, and now I have a new client with work coming up. Had I gone this crazy "don't steal my photos, I'm charging you a copyright fee" route, I probably would have been blackballed from his entire office. Now, this applies to REAL ESTATE PHOTOGRAPHY, not design photography, not commercial photography. I believe different parameters apply, and anyone who disagrees probably needs to evolve.

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