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Real Estate Photographers Must Educate Their Clients About Photo Licensing

In: 
Published: 20/12/2014
By: larry

CustomerTraining

Aubrey recently asked the following question:

I've had cases many times where my clients use my photos improperly, maybe we could start a separate discussion about this.  My experience hasn't been a positive one. Example: I'll take photos for an agent and for one reason or another the listing will switch to another agents without my knowledge. All of a sudden I see my photos being used by another agent when they didn't pay for them. Should I consider speaking to them and letting them know those are my images and you need to pay for them?  I've tried that before and it did NOT go over well. Lost 2 clients over it. Any suggestions?

The underlying problem is that most agents have little or no understanding of photo licensing. The concept that you pay several hundred dollars for photos and you only get to use for a limited time, and a single purpose is not well understood by most agents. A real estate photographer in the Seattle area recently told me that he brought this subject up at a large real estate office meeting and none of the agents at the meeting, including the managing broker understood that the photographer owns the copyright to the photos.

The solution is real estate photographers must educate their clients in this area. It's better to educate them up front before problems occur than to wait until problems occur.

I recommend that real estate photographers at least have a simple one page terms of service statement that explains their terms of service including their photo licensing policy and before the first shoot, have a discussion with the agent client and explain how photo licensing works and ask them to initial your terms of service. By having a written TOS and taking the time to explain it to all customers, you save a lot of potential confusion and misunderstandings. An even better solution is to have the client sign a photo licensing agreement for each shoot. I have and example of a photo license agreement written by copyright lawyer Joel Rothman, of Schneider Rothman, Intellectual Property Law Group in my Business of Real Estate Photography e-book.

Update 12-22-2014: As usual when we discuss real estate photograph copyright there is a huge amount of misunderstandings on the subject of copyright. Much if this misunderstanding is generated by the fact that many MLSs rules around the US are flat wrong in the area of copyright. For example, copyright is NOT transferred to agents OR MLSs unless the photographers sign a written document to transfer copyright. Back in January of this year we asked Joel Rothman and Steve Schlackman both Intellectual Property Attorneys in Florida to clear up these issues for real estate photographers and here is the PFRE post that refers to their explanations. These are legal opinions on this subject. Also of interest is the ongoing class action suit that is going on against the main supplier of MLS software.

64 comments on “Real Estate Photographers Must Educate Their Clients About Photo Licensing”

  1. I've been using this short licensing terms in a email early on with the client and also included with the invoice. I have not (yet) had any real problems with agents but I did with a commercial account. I've been entertaining the idea of using something like DocuSign or eSign service and having them acknowledge it officially-but not sure how that would go over. Here is my simple text I found awhile ago that also covers the types of retouching I will do:
    ---
    Do I (the agent/homeowner) own the photos provided?
    No, the Copyright belongs to us. However: you are granted the rights to use, distribute, license (but not re-sell) the photos for any reason related to the sale of the real estate for the life of the listing and any subsequent renewal by the same agent. If the listing expires or the property sells, then the rights to use the photo expires. This license is acceptable by all MLS’s services as you do have the right to license the use of the photos to the MLS. Of course, each MLS has specific requirements for use of the photos. If you have any doubts, it would be best to contact your firm’s legal department.

    NOTE: Photographs that are to be used to present a property for sale must comply with the Property Mis-Description Act 1991. As such, we can remove For Sale signs and other temporary objects, but we cannot touch up the appearance of the property, nor remove unsightly permanent structures or objects from either the property or surrounding environment.
    ---

  2. The problem is when the agent uploads photos to the MLS the agent loses their copyright.

  3. Copyright of photography is poorly understood by everybody. I tell vendors it's like buying a newspaper; you have bought the right to read the articles within, but you don't have the right to copy the article without the author's permission.

    I too have similar wording on my website.

  4. Stephen, the agent cannot lose something they never had. The copyright is always with the photographer, never with the Agent. Some MLS's claim they now own the copyright, but I think that's coming to an end. I'm sure another member will know more on that topic.

  5. @ Stephen, not sure I understand your comment. At least in the U.S., copyright is only transfered via a signed written agreement. Simply uploading to a MLS does NOT transfer copyright, regardless of what the MLS states in its TOS. The agreement must be signed by both parties, the copyright office as yet, does not accept a "by continuing, you agree to these terms" as an official copyright transfer. And probably for good reason.

  6. I had a situation where an agent lost a listing I had photographed for her and the new agent wanted to use the same photos (per seller request). The old agent was floored that I would let the new agent buy the photos to use again. She had no idea that I could do something like that--she obviously did not read the terms and conditions that she signed. She also had another home that was a new construction and thought she could just give the photos I did for her to the builder. I had to educate her that the builder would need to buy a separate photo license.

    The best example I heard was like renting a car. You pay to rent the car, and then agent can pay to rent the car and use.

  7. Our MLS gives a statement before uploading that by uploading the photo you give up your copyright. But that goes without saying. As you know the photos are copied to a multitude of sites. Unless they're clueless, the photographer knows darn well it's not going to appear only on the MLS too. Good luck trying to selectively enforce your copyright and still maintain it.

  8. Stephen - I'm curious. Are you a real estate agent?

    I send my TOS to clients multiple times:
    1- The first time a new client books an appointment
    2- With EVERY appointment listing confirmation
    3- With EVERY invoice

    There certainly needs to be more education to agents, brokers, and MLS organizations about this topic.

  9. @Stephen- No, that does not go without saying! The MLS never owns the copyright to my photos.

    I think your are confusing copyright with usage of the photos. Like mentioned before, unless the copyright is transferred from the photographer to the MLS in writing, that copyright remains with the photographer. The MLS's know this. What they are doing is using the photos on other sites etc. The MLS cannot sell the photos and none do! If you read my post above, anything the agent, home owner or MLS want to do with the photos with regards to the sale of that home/by that agent is fine. But I do not give up the copyright- I only give usage rights.

  10. The law is clear on copyright.
    The problem is with photographers worried about upsetting potential clients.
    Education works on occasion with a reasonable agent but IME a lot of agents are close to evil.

  11. If you don't prevent Zillow from reusing your photos you can't prevent another Realtor from reusing them. You can't selectively enforce your copyright and maintain that copyright. If you took the second Realtor to court you would lose and end up paying their court costs as well as yours.

  12. @Stephen - RE photography licensing can include all aspects of online marketing (use on all sites the local MLS syndicates to) for the listing of the agent that purchased the license. This is very different from another agent using the photos for a DIFFERENT listing of the same property.

  13. Last Monday, I got a call from an agent for whom I photographed one of their listings a few months ago to tell me that the new listing agent was using the same photos. I contacted them via email (and sent them an invoice) and, long story short, they told me the photos were the owner's property now (because they paid the previous agent for them) and they wouldn't be paying me. I sent them another email telling them about copyright legislation and I attached a new invoice for 10 times the amount (per my website, which says that's the amount payable for copyright infringement). I gave them until COB the next business day to remove the images from the 6 primary RE sites I found and from all storage devices. After two days, I lodged a Small Claim in the local court (about $140) and served the paperwork at their office. They have 14 days to respond - if they don't, the court awards me the amount plus costs automatically; if they do, we go to mediation before heading to court. I'm after compensation, even if it's only for the original invoice amount, as well as something in writing admitting they were wrong to use the images without permission (from them or the court). The fines imposed by the Copyright Act is possibly going to be much more and their reputation might take a hit if it goes to trial. Sometimes you need to take a stand, even if you cop flak, to let them and others know that what they're doing is wrong.

  14. If the agent tells the judge the homeowner gave them the photos won't you be out of luck? I think if at all, both would be severally libel.

  15. @Stephen. The agent. Copyright of photographs in Australia starts off by saying that the photographer who takes the picture is the owner, regardless of whose camera it is. Then it says the particular circumstances change that, for example, where the photo is taken by an employee in the course of their employment, or where it's taken for private or domestic purposes, like for a wedding (most professional photographers change that by getting the couple to assign copyright to the photographer in their contract), or where the photographer works for a newspaper or magazine. There are a few others. In my situation, I was engaged by Agent A (who received reimbursement from the owner - this is immaterial to the case) and Agent B is using the photos without permission - the home owner hasn't been given permission either but they're not the ones publishing the photos.

    Look at photos as being similar to music. If you legally buy or download music, you don't actually own the music - you've purchased a license to use it for private or domestic purposes. However, if you're a business and you play it in your store or if you use it in your YouTube video, you really need to pay the fee for broadcasting it in a commercial setting IF they let you, otherwise the fine can be huge. If you make copies and distribute them, you suffer the consequences.

    From your comments above, I suggest that you really should become familiar with copyright law, Stephen, especially if you're a professional photographer and especially if you use other people's photographs..

  16. I'm wondering about the monetary value of images after initial delivery versus the headache of trying to enforce copyrights. How about the idea of explicitly transferring all rights to the agent (hopefully for a fee)? Would that be a way of making a little extra money, and avoiding having to enforce the copyright? By not transferring all rights, has anyone made more money from the resale of images to a second RE agent, or anyone else?

  17. @Scott - When we've talked about this before some photographers that resell photos say that they make several thousand dollars a year just reselling property photos.

    It's not likely that you are going to be able to charge more to transfer copyright to the agent when that's what most of them think is happening already.

  18. What's great about copyright is, "artists" can sit around and make mo-money without even working for it. Most people don't understand that copyright wasn't created to protect works it was created to UN-protect works. It was originally intended to encourage distribution of works back when distribution was difficult and costly. Those days are gone and so will the enforceability of obsolete copyright laws. This is why things like, "private label rights" and "resell rights" are the big thing these days.

    So in answer to your question IMO it's better to think in terms of selling resell rights at a reasonable price rather than getting greedy trying to enforce an obsolete law. Sure deep pocket companies like Sony or Random House have to keep those laws propped up to maintain their existence but even they know their days are numbered.

  19. The use of my work, that I labored over, is "nothing"? I'll have to disagree with you. Luckily, my clients agree with me -- they fork over money in exchange for the limited use of my photographs. It's how I pay my rent and buy beer.

    Do you have the same opinion about music, books, movies, rental cars, hotel rooms, software, newspaper articles, and parking spaces? All of which are leased, rented, and licensed (again and again and again to different people each time). Or do you just steal these things, since to you they are value-less?

  20. @Stephen "Most people don’t understand that copyright wasn’t created to protect works it was created to UN-protect works"
    You might want to go back and re-read up on why congress created copyright laws..Yes, they un-protect works AFTER a given time period. But the copyright holder is protected during that time period, which I believe was originally set at 10 years, renewable for another 10 years. At that point it was to go into the public domain. But the protected period was put in to encourage folks to create..and to benefit from that creation, which in-turn benefits society as a whole.. Otherwise, they could have simply said, tough, you create, everyone else benefits at your expense...Created works are not "Nothing", they have value. But if that is what you truly believe, then be willing to put all of your works into the public domain as soon as you create them, and lets see how that works out for you...

  21. I would say it looks as though there is a significant number of real estate photographers who must educate themselves about copyright before they can attempt to educate others.

  22. @Larry yes some agents do think they "own" the photographs out right when they pay for the limited use of the photos. I think when providing pricing to agents it could be helpful to give two prices. One price for the limited use and one price conveying full ownership. When agents see those numbers side by side they should ask what the higher price conveys. Even if they don't ask the photographer should explain it. In the long run it will convey to agents that there is a difference in types of ownership and later on when they happen to give those photos to someone else to use and they did not buy the copyrighted version they can't really make the argument that they did not know they did not have full ownership. When the agents know they are doing something unenthical, threats to file an ethics complaint against them with their Boards carry more weight.

  23. @Larry. That's great information that some photographers make substantial income reselling their property photos. Sorry I missed the earlier postings. Sounds like they have this problem figured out. I'd love hearing from them. Do they educate their clients about copyright? Do they lose clients when they assert their copyright? Are these images that have been posted on MLS by RE agents, or are we talking about other media (magazines or books)?

  24. "threats to file an ethics complaint against them with their Boards"

    One great reason an agent should not to hire a photographer. I train Realtors and now I see they REALLY should be getting photography training as well. Nothing is worth jeopardizing your license. Thanks for the idea. I hope it's not copyrighted.

  25. @Stephen, so you condone theft in your Realtor training? I question your ethics myself to make such a comment. An agent who steals anything (photographs being one) has no business being a Realtor.

    Did you come here to learn something or to find out what the repressions are for the photos you have trained agents to steal?

  26. I think my local MLS is pretty fair with their rules & regs regarding copyright, going as far as allowing photographers to include copyright info on the photos. I also assume it would be easy to notify them if a listing was using unauthorized photos. Beyond that it's my job to be clear with the client regarding the licensing. This is the Mid Florida MLS Rules & Regs regarding photographs...

    Photos, images or virtual tours may not contain company or agent logos, agent photos, commissions, bonuses, any contact information, voice, text, or graphics of any kind (with the exception of copyright ©) in the virtual tour or photo sections. Only photographs, site plot, property sketch, property line art or survey of the property can be entered in the virtual tour and all photo fields. All images including virtual tour photos and images must be owned, purchased or licensed by the listing broker/agent, from the owner of the image(s). The third-party virtual tour vendor’s contact information (non-interactive) is the only contact information allowed on Virtual Tours. The virtual tour link must be a valid URL and may not contain any Participant/User names or links to any third party business or social networking sites.

  27. @Stephen, I see you don't like how the conversation has turned, so you decided to become a S.A.

    "Nothing is worth jeopardizing your license"...
    not going to happen unless someone like yourself is erroneously telling them that:
    1. They can do whatever they want with the images the photographer provides
    or
    2. If its online it must be free to use..

    Realtors have to follow rules and regulations to get and keep their license...right...
    So, what is the problem with realtors following copyright rules (around since 1790)...which existed long before the realtor profession came into existence (1908)...care to answer that...
    If you are indeed training realtors as you claim, then maybe you should train them on those rules as well, once YOU actually understand how copyright works. Just Saying

  28. There are several very good tutorials on Copyright as it applies to photography at Lynda.com, CreativeLive and KelbyOne. Ed Greenburg, a NY attorney that specializes in copyright law, and Jack Rezniki, a professional photographer have a column in Photoshop User and a web site, http://www.thecopyrightzone.com, that discusses specific situations as they apply to copyright law and photo releases. Ed and Jack are featured in 2 videos produced by BH Photo that you can watch on YouTube.

    Some very quick basics from their talks: Sending an invoice to somebody that has stolen your work is a bad idea. Copyright issues can ONLY be heard in FEDERAL court. You can't take them to small claims court. If your work is not registered with the Copyright office, your remedies are very limited and you can not recover attorney's fees. Fortunately, you have 3 months to register published works and it's only $55 for each registration which can contain all the zipped image collections (you should zip them up in organized groups) you can upload in one hour (or the Copyright web site will time out on you.) There are some details that you need to know about registering published images that can be found on the http://www.copyright.gov web site. They don't want you registering thousands of published images on your first go. Once you have created an account on the Copyright web site, it only takes 10 minutes or less to register a batch of images.

    There is nothing special about wedding photos. The photographer owns the copyright the instant the image is written to the memory card. There are issues with using or reselling those images outside of the customer's original intent having to do with releases, but that doesn't affect who owns the copyright. With a properly worded license, the couple would not be able to sell the images to a wedding magazine without the photographer's permission, for instance.

    All assignments of Copyright including Work-For-Hire arrangements have to be done with signed written documents. The documents should also be stand alone instruments addressing the assignment and nothing else. The unique page is not required, but there have been cases where the text was buried deep in a multi-page contract of 6pt type and a few judges have taken exception to the tactic.

  29. The difference with the MLS and wedding photos is the MLS claims copyright on media as well as data once the Agent uploads it. The MLS also requires that the Agent uploading it own the image. Then once on the MLS they allow, or I should say don't disallow Agents to freely use each others photos. So a photographer trying to sell a limited use photo to be used on a system that requires full ownership has got to be problematic. Also from the perspective of consumer protection, charging the homeowner over and over again is not going to sit well before a judge. It's bad enough the Realtor failed to satisfy their customer, nevermind hitting them up again for photos that you can bet they thought they would only pay for one time.

    The MLS takes control of the copyright and requires ownership of the photo upon upload to avoid these sort of problems. Selling an agent a limited use photo is prompting them to violate MLS policy.

  30. The ASMP has a lot of good information on copyright and many other things: http://asmp.org/content/registration-counts#.VJiKCANoIk

    Also, the US copyright law is not that complex and is pretty clearly written, so that the average person ought to be able to understand it on his or her own. Real estate agents are supposed to be able to understand legal documents, so I would think that any reputable real estate agent should be able to understand the law without having to consult an attorney.

  31. Stephen, many of your comments suggest to me that you are ill suited for the role of training real estate agents, since you have displayed a significant lack of knowledge about many matters relating to copyright and are dispensing much incorrect or misleading information.

    Taking your last comment as one example, not all mlses have the requirement you describe, yet your statement makes it seem as though that requirement applies to all mlses. As for those that do have the requirement, I believe Larry has dealt with that in an earlier article on this blog.

    As for your comment about "consumer protection", well, that statement is completely unfounded, in my opinion.

  32. "the MLS claims copyright on media as well as data once the Agent uploads it."

    Stephen, "claiming" a copyright is not the same thing as actually owning it. There are a few MLS's (but not most) that have such language in their terms. But their terms don't carry the force of law. The copyright act does. A parking garage could "claim" ownership over any car that parks on their property...but that wouldn't fly, any more than this latest straw man you're putting forth.

    "Then once on the MLS they allow, or I should say don’t disallow Agents to freely use each others photos."

    Actually, no they don't. You can't just make things up.

    "Also from the perspective of consumer protection, charging the homeowner over and over again is not going to sit well before a judge."

    Actually, yes it does. And it has sat well with judges again and again and again, with the legal precedents going back decades. This goes back to your just not having any actual knowledge about the subject at hand. You should try a simple Google search on the word "copyright" -- there's ample material on the first page of returns for you to get a very good overview of the concept, the law, and the history. We have a huge body of caseword that clearly establishes how copyright "works" in the real world. Copyright is formed, used, and defended, constantly - it's not like this is some arcane, weird concept that is just now being discussed. The fact that you're a newcomer to the subject doesn't mean everyone shares your bewilderment.
    Disputes arise all the time -- but it's quite rare for the legal framework to change at all. Last time was 1989, when the US joined the Berne Convention.

    It's rather ironic that you are using a web browser to refute the idea of licensure of intellectual property. Your browser is LICENSED to you (you might not remember clicking past that long document of legal mumbo-jumbo, but you did agree to it) and you have very clearly defined limits on what you can and can't do with the software. And it seems to be working for you! Congrats on finally getting a clear look at a system that you're already participating in!

  33. I agree with you on all counts except for the MLS for reasons previously mentioned. Many a times I've called the Board as well as the MLS software providers and asked if my client (and myself) can use other's images and every time they said yes as long as the images don't misrepresent the features of the property. I suggest you give them a call and see what your local board and MLS provider support team says.

    What I've learned from this thread that is valuable is that hiring a RE photographer can unwittingly result in legal problems and complaints to their Board for conducting business the way they have for decades. These Realtors really need to learn to do their own photos. Invest in a short lens. Learn lighting. It's not exactly rocket science.

  34. So with our conversation with Stephen, I guess we're doing what Larry's title suggested we do in the first place, educating a possible client. I hope the conversation is usually more friendly.

  35. Question for Stephen: Suppose you train your agents to take their own pictures. Suppose others want to steal their work. Will you train them to just leave the money on the table, or will you train them to defend their legal rights?

  36. @Stephen, since you don't seem the least bit interested in expanding your knowledge on the subject of copyright...but instead only seem to want to disparage Re photographers who don't agree with you...I did the "leg work" for you...boy that was hard work let me tell you

    Copyright Law of the United States of America
    § 204 . Execution of transfers of copyright ownership

    (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

    (b) A certificate of acknowledgment is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if —

    (1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; or

    (2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the United States, or by a person authorized to administer oaths whose authority is proved by a certificate of such an officer.

    Notice the wording in (a) ..NOT VALID UNLESS and IN WRITING...show me a MLS...ANY MLS that has the paperwork on file for such transfer of copyright...this isn't hearsay...this is the legal requirement as set forth by Law..

    On second thought, you are acting way to much like a troll, picking and choosing what you will respond to, and seemingly totally disregarding anything said by those with more knowledge on the subject than yourself...I so feel sorry for any Realtor that may have actually sat in a class taught by you...

    ....and I'm done with this...nothing more needs to be said to someone who simply refuses to listen

    Have a good evening

  37. So using something through Creative Commons is violating the holders copyright because they didn't put it in writing?

  38. I would tell them as a courtesy to the other agents, as a courtesy to the customer and a for the common good of all, you share your images just as it's been done for decades. If your images start appearing in art galleries, rejoice, quit your day job and defend your copyright.

  39. I've done over a thousand listings and trained as many agents. I guarantee (in their minds) it won't be friendly because they have been sharing their images their entire careers. No matter how you say it they're going to agree with you then go on about business as usual. If given the choice of owning the image or limited use they'll pay you the lesser price of limited use and do what they've done since day one. After you explain their choices to them then they'll have to go to their client and explain the choices to them. I just don't see it happening.

    Agent: You can pay $200 for the photos and can only use them for this listing. Or you can pay $300. This way if you decide to fire me or your listing expires and you hire someone other than me you can use them all over again. I suggest you pay the $300 to protect your next agent from being sued and reported to the board by the photographer.

    Client: How often do you fail to sell your listings? How often do you get fired? Lawsuit? Take your own photos you lazy bum!

  40. Hey Stephen. Your last posting (with the imaginary conversation between the "agent" and the "client") sounds like you are trying to give practical advice. Whether photographers will make more or less money by asserting their rights, that's an important question. Sounds to me like you're saying "less." Maybe you are right. The original posting mentions losing 2 clients after asserting copyrights. Has anyone said they made more money after asserting their copyrights?
    You've also made moral and legal arguments. As for legal? it's hard to argue that unauthorized use of copyrighted material is legal. Just saying. All the points you have raised were convincingly counterargued. As for moral (for the common good)? Should photographers give away their images to make the world a better place? Seems far fetched.

    By the way, I have shown in a gallery, but I don't think that impacts whether I should assert my copyrights.

    As for your imaginary conversation, How would this be?
    Photographer: My rate is $200. For that amount, I retain the ownership of the copyright. You would not legally be able to give the images to anyone else outside what we've agreed to already. For re-use, you would have to get permission from me, and there would be an extra cost. For an extra $X now you can purchase the copyright from me. In that case, you would be able to re-use the images on future postings as much as you want, or let other Real Estate agents legally use the images.
    RE Agent: Why would I want to own the copyright? I'll go for the $200 price.
    Photographer: Fine by me.

    The advantage to this approach is that copyright has been explicitly discussed, and in a hopefully respectful way. I think this approach addresses the original question.

    As for what the $X dollar amount should be, that would partly depend on how much income the photographer would expect to lose by forgoing future income from the images, and partly on how comfortable the photographer is getting rid of her copyright. Anyway, the photographer could set any amount.

  41. (from the article quoted by Scott)

    Another part involves having the mental strength to steel our minds against any reasonable argument that might challenge one of our beliefs. This means cultivating the ability to remain totally impervious to logic, so that when someone points out a blatant error in our line of thought, we can simply shrug and ignore them.

    Can you make statements you know to be false in a determined and measured tone of voice? Can you then continue to reel off untruths by pulling idiotic examples out of your ass to further illustrate your faulty point, all the while giving no one else a chance to respond? Can you look basic common sense in the face and laugh?

    Because that is what courage asks of us.

    It can get lonely sometimes, aggressively defending your false beliefs until you’ve alienated everyone around you. Bravely shouting over someone’s sensible comments in order to hammer home your idea—your idea that is wrong—won’t win you any popularity contests.

  42. I've obviously struck a nerve here. Being that it's impractical and unprofitable to sue every copyright "thief" in Federal Court, to avoid getting all your panties in a bunch every time someone reuses the image why not always sell the image in it's totality? If doing that is going to price you out of the marketplace then just let it go.

    The only one who is going to think getting paid twice for the same job is OK is the one who's it's in their financial best interest think so. Because that's how the agent, homeowner, MLS, or the Board is going to see it. No matter how well you explain it. They're going to think you are getting greedy. They may not waste as much time as I have trying to explain it to you all, but I can guarantee you it's going to cause ill will. Look at all the millions people who pirate music. Are they all immoral thieves? I would say someone who pirates music views the copyright holder as the greedy thief. Even if the law, albeit an antiquated law, is on your side, why would you want your customer to view you as a thief?

    https://gigaom.com/2012/03/30/why-its-wrong-to-call-copyright-infringement-theft/

  43. While not intending this as an endorsement, just transitioned delivery from Dropbox to Zenfolio. While there are several things I like, in particular, it requires license agreement acceptance for downloaded files in the 'shopping cart'. Didn't like the 4 default provided so created one for Real Estate, which is based off the one provided by Larry elsewhere on this site. Disabled the default "download" as full size only and so large MLS rejects them so created a "price list" with different size downloads. Obviously, those downloads are free since pre-paid, but also added ability to order prints, including photo books as gifts to their client and suggesting a custom "thank you, ask for referral" page in the back as they are less likely to throw it out vs other trinkets and trash marketing products as this represents memories.

    @ Stephen. I wouldn't say my "customers view me as a thief." Rather, they view me more as a hero as I support them by following up with the other person who misused the photos that they paid for. As far as my customers misusing, that is virtually impossible as my license agreement is somewhat liberal allowing use beyond the limited marketing of the home. Specifically, I allow them for their professional business development activites - it is just when others do the same business development with the photos that it becomes an issue. Reason for the expanded use? If they land a new listing by including, touting and standing out in their listing presentation, I shoot the home. That's a win-win.

    Aside from Realtors/Brokers being grossly misinformed about copyright, I demonstrate they don't even know what to do with it when they have it. Ignoring the army of Realtor that take their own photos, virtually every Realtor writes the narrative for the property (some with less skill, "Call Me!") that is an original work that they own the copyright too under the same Federal Copyright Law. The biggest problem is not the MLS or even syndications where it supports "marketing the home bringing buyers and sellers together" which is well within the scope of the license - using the photos to market the home. The problem is when they use the photos - for free - as the raw material in creating a new product. Zillow and Trulia are not alone, but examples of this. The new product the create is to sell zip codes and other areas to the realtors who essentially provided the underlying content for free. Worse, it borders on extortion when they approach the listing agent - buy this that you provided the data to and receive inquiries, or we sell it to your competitor.

  44. The link below is mainly about music but it may give you all some insight into why more and more normally law abiding consumers are no longer respecting copyright laws. When a purse that costs $10 to produce is sold for $2000 you know something's got to give. Just as if a photo that costs nothing to copy is priced at or near the price of the original, something's got to give. The enlightened find ways to turn lemons into lemonade. The small minded see themselves as victims and look to Big Brother to come to the rescue. Who would you rather be?

    https://www.insightcommunity.com/step2/311/why-i-pirate-an-open-letter-to-content-creators

  45. @Stephen WOW, I was waiting for you to finally admit you're true position on this is... I had a feeling based on what you had been posting, but you hadn't come right out and said it. Thank You.

    "Look at all the millions people who pirate music. Are they all immoral thieves? I would say someone who pirates music views the copyright holder as the greedy thief. Even if the law, albeit an antiquated law, is on your side, why would you want your customer to view you as a thief?"

    Stephen, what is the legal definition of a thief...taking something that doesn't belong to you...Doesn't matter what I think, or you think or...., we ALL have to abide by the law...like it or not.

    I don't know about the rest, but with your moral compass in such a state, that you can so easily disregard theft because it benefits you. I wouldn't work for you for no amount of money. I would be afraid of what else you could easily justify to get ahead...

    " I wouldn’t say my “customers view me as a thief.” Rather, they view me more as a hero as I support them by following up with the other person who misused the photos that they paid for. As far as my customers misusing,"

    That is easily backed up on here alone, by the number of posts regarding that exact sentiment...contrary to what you seem to think, agents don't appreciate when another agent decides to "borrow" the images they paid to license...

    Just for reference, my TOS which is very similar to most it not all on here, states that the listing agent can use the images anyway they need to, to market the listing for as long as they have the listing. If they lose the listing, pray tell me, of what use to them are the images then. And why should agent B, simply be allowed to profit (steal) financially from what agent A paid for..?

  46. "@ Stephen. I wouldn’t say my “customers view me as a thief.” Rather, they view me more as a hero as I support them by following up with the other person who misused the photos that they paid for."

    I think you're forgetting who's really paying for the photos. The home seller. Do you think they would consider you a hero?

    This is a quote from an article I mentioned earlier. "Being an active file-sharer means I have a clearer picture than you do of what's really happening. I know when I download something that it's not a lost sale and it's not theft. The fact that you can't see that is not my issue. I'm not going to let you stop me from sailing the world just because you think the Earth is flat."

    I have to agree that some of you guys don't understand, "what's really happening." And while you may agree that the customer is king, you don't recognize who your customer really is. You may get some solace by seeing yourself as a hero, but what good is that in reality? As the quote above says, "The fact that you can't see that is not my issue."

    You've got to find a way to make it a win-win situation because when your customer, your true customer loses, you inevitably lose too.

  47. Again, and again, and again you're forgetting who your customer really is. The homeowner whose house you used to create the product you sold to the agent who in turn charged the homeowner. Now you want a double dip. Sheesh!

  48. I'm not sure it's a good use of energy to address Stephen personally or talk about his personality. I'm sure a lot of RE agents feel pretty much the same as he does. Now that he's told us how he really feels, we might be more prepared when dealing with someone with similar opinions. We're better off knowing than not. Reaching agreement would be nice, but means almost nothing in a larger sense.

  49. @Scott. "I’m sure a lot of RE agents feel pretty much the same as he does"...
    Is it they feel the same way, or they don't know any better..?
    Ignorance of the law can be overcome through education. Blatant disregard of the law after one has been educated, is a whole different matter entirely. I can work with the former, do you really want to work with the latter..?
    I would rather not be guilty by association...but maybe that's just me..

  50. Hi Tim. You're raising a lot of issues. I think we agree on everything you said. Hey, I don't really know, but I'm guessing there a good number of people who will feel pretty much like Stephen does, even after we've made our best arguments. That seems pretty obvious. What the percent is, I don't know. Fortunately, we can work with whomever we want. Guilty by association? Not sure what you mean there.

    I do think that anonymously posting Stephen's personal information crosses the line. I think we're better than that.

  51. @Scott, I agree, posting someone's personal info anyomously is both unnecessary and cowardly. We should be better than that.

    Guilty by association means if I am aware someone is knowingly breaking the law, and I still choose to work with them, then from an outsiders point of view, I am just as guilty, even if I don't actually agree with what they are doing, and are not doing it myself.

  52. Several observations:

    1. Copyright is a matter of law. The fact that "small" infringements might not garner a lot of money and thus be worth pursuing in court does not mean that one should never enforce one's intellectual property rights. Furthermore, at the very least, one can stop those who are infringing from continuing to do so through the DMCA takedown process. Also, members of organizations such as the NAR have an responsibility to their organization to honor the laws, and violation of the laws could lead an organization to impose penalties on one its members. So, even though it might not make financial sense to bring a lawsuit for copyright infringement in some instances, there may still be other avenues by which one can exert pressure to obtain just compensation for an infringement.

    2. As has been mentioned above, it is sometimes possible for photographers to make significant additional income relicensing photos shot for real estate listings, sometimes to other agents who are relisting the property, and sometimes to other parties. Thus, it can be quite worthwhile to take one's intellectual property rights quite seriously.

    3. It appears that Stephen is in the business of teaching what he preaches. Thus, it would not be in his financial self interest for him to change is views. My guess is that Stephen, rather than educated his clients, is catering to their misconceptions.

    4. Stephen: "These Realtors really need to learn to do their own photos. Invest in a short lens. Learn lighting. It’s not exactly rocket science." It depends upon whether or not realtors really need high-quality photos. If high quality photos are the goal, then I would say that, for the vast majority of real estate agents, creating those kinds of photos might as well be rocket science. Acquiring some decent equipment and learning a few techniques is only a very small part of achieving the goal of high quality. It requires knowledge of a wide range of photographic and digital-processing techniques, a lot of practice, a lot of time taking the shots and doing the digital processing, and, most of all, talent. If high quality photos are not required, then I think real estate agents can very well just take the photos with their cell phones and shouldn't waste their time and money on training that they don't need.

    By the way, I think that blog post to which Stephen linked above is badly written and the opinions that the author expresses are unsupported. In my opinion, it is just the rantings of some blowhard on the internet and provides no support for Stephen's contentions.

  53. I think that part of the problem is that there isn't a lot of Copyright cases that go to court or even get filed with the courts. If you are contacted by a plaintiff's attorney with accusations over the misuse of photos and contact your own attorney, they will probably recommend that you agree to a settlement as quickly as possible. Most of these settlements have non-disclosure clauses in them, so again, one doesn't hear about them. If a defendant decides to let the matter go to court, the awards start around $10,000 plus court fees and plaintiff's attorney's fees if they lose. (assuming the images have been registered). At the very least, copyright complaints made to the agent's MLS may result in fines or suspension according to MLS rules without any due process at all. An agent suspended from their local MLS is out of business. There are possibly some remedies to be had using the DMCA laws, but little is published about that from what I have seen.

    The MLS's in my area do not REQUIRE that the agent own the copyright to the image. The requirement is that the agent either own the copyright or have permission to use the photos they are uploading to a listing. The license they receive from the photographer gives them that permission. At stated previously, if the agent doesn't need the photos after the listing is sold or if they lose the contract, why should they own the copyright? I'm pretty generous and put a clause in my licensing that gives permission for the purchaser to use the images to market themselves. For brokers and offices I handle it a little differently.

    Another issue that comes up frequently is that a publisher can copyright the layout and appearance of a publication. Some people get confused when they see a copyright claim knowing that elements are copywrited (copywritten?) by somebody else. If I were to republish a page from Zillow, I would be infringing on their copyright for the page layout and also separately for the images to the owner of the images. Zillow would be asserting their rights if they sued me even though they don't own elements of the composition.

    Staying out of copyright trouble is very simple. If you didn't create the images and don't have permission from the person or organization that did, don't use them. Take your own photos if you want to represent yourself as a budget operation or work with a professional photographer that will give you the license you need if you want to appear as an upscale operation.

    Stephen, The "really is" customer is the one that calls me and pays my invoice. The owner of a property is very infrequently my client. The listing agent is usually my customer and all of my focus is on delivering quality service to that agent. If I do a good job and provide good value, the agent will call me for more work. I am unlikely to ever get repeat business from the property owner so I'm not concerned about them as much.

  54. Why do I get the impression that no matter how much we explain the laws and penalties for copyright infringement, Stephen will just continue his ways until he is sued. Or someone he trained is sued. There will always be the Stephen's of the world, is just unusual to have on come out openly at say so!

    I see Larry deleted the reference above to someone posting his info, but I get it each time he posts to the board via an email notification; along with a photo of him and his wife. SO, I guess he's not totally hiding. I'm sure others do too.

  55. Stephen,
    I will admit to being completely confused as to what your point is. Maybe you can help me understand where the problem lies.
    I make my living as a photographer. Following industry-standard practices, in place and widely followed since at least the 1960s, I license my images to my clients. My clients have included real estate agents, interior designers, architects, builders, and the owners/operators of buildings, to name just a few.

    All of them understand that they are getting a license to use the photos, much like the license they purchase from Microsoft, or Netflix, or Hertz Rent-a-car. They're totally cool with that, because it's much cheaper for them to only license the usage they actually need, rather than buying the photos outright for an exorbitant fee. Why buy the entire bus when you really only need a ticket to ride across town this afternoon?

    Once in a while, I encounter someone who doesn't quite get this. Usually, it's when a real estate agent has "gifted" a set of low-res photos to their homeowner client as a keepsake. I allow that under the terms of my license. But on a handful of occasions over the years, the homeowners have passed those photos on to either a contractor who worked on the house, or to a new real estate agent, or to a broker tasked with renting the property. None of those things was ever licensed -- and so I've had to reach out to the new "user" of the photos and let them know. I tell them that if they'd like to use my photos (which are registered with the US Copyright Office), they can purchase a license, the cost of which is pegged to the amount of use they're doing (more use = higher fee). This has come up for me maybe a dozen times in ten years. In every case, the third party has pretty quickly settled with me. I've only ever had to get into punitive charges once, and that was a particularly belligerent fellow who, like you, just didn't want to acknowledge the facts. Once he called his lawyer, he settled in a matter of hours, because his lawyer confirmed that A) I was right, and B) he was actually being offered a fair deal.

    The other nine or so cases were resolved amicably.

    So I ask -- what exactly is the problem here?

  56. Talking with someone at a party last night. Individuals and other businesses frequently use his business's images without permission. Clients sometimes will threaten to take their money elsewhere if they aren't provided image files for free. Guess where he works -- at a magazine! For me, it was a reminder of how commonly people to want your creative work for free, whether it's RE, portraiture, or event photography... We content producers have to stay vigilant, end to keep our copyright registrations up to date.

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