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The Majority of Realtors Believe that They Own Photos They Pay For

Published: 16/03/2017

It's pretty clear that the majority of listing agents believe that they own the photos real estate photographers shoot for their listings. Here is some evidence:

  1. The majority of real estate photographers don't even discuss the subject of photo licensing with their listing agent clients. Because of this, most agents have never heard of the concept of photo licensing. They just think paying the photographer makes the photos their property.
  2. The majority of real estate photographers don't have a license agreement that they get their clients to agree to. See this poll from last year. This poll shows that 53% of PFRE readers don't use a photo licensing agreement.
  3. Recently, a Realtor/photographer on Bainbridge, Island (near Seattle) discussed the subject of photo licensing at an office meeting of 80 agents. None of the agents had ever heard of photo licensing. They all thought after paying a photographer they owned real estate photos.
  4. A photographer in the Seattle area told me that he recently walked into a ReMax office and to his surprise, one of his photos had been turned into a wall mural for their waiting room.
  5. Another photographer recently found an image from one of his shoots used in an Architectural Digest ad for a big name real estate brokerage. The office didn't even discuss this with the photographer.

To make things even worse, as a reaction to the VHT suit against Zillow, a Planomatic (a VHT competitor) has decided to transfer ownership of all photos Planomatic shoots to the listing agents. See this article for details.

My conclusion is if you are a photographer that intends to retain ownership of your real estate work and you want to avoid surprises like #4 and #5 above you must explain your photo licensing policy to you clients and have them agree to your terms with a written contract before you do a shoot.

Larry Lohrman

30 comments on “The Majority of Realtors Believe that They Own Photos They Pay For”

  1. I flat out don't think it's worth broaching the inner workings of photo licensing with realtors for run-of-the-mill Real-estate shoots. I also don't think it's worth having a complicated licensing agreement that is just made to be broken because it goes against common-use scenarios for agents. It's too much of an uphill battle and enforcing strict licensing requires uncomfortable conversations that will lead to a loss of clients in the long run.

    I think time is much better spent adapting your business to the times and creating your licensing to best serve your client's needs.

    We have a photo licensing agreement attached to our Real-Estate invoices which allows the agent the right to do pretty much anything they want with the photos except for reselling them or giving them to other contractors like stagers or builders for commercial use. Basically it means that "Yes, YOU can own the photos, but nobody else can without both of our permission." It's a common sense agreement that's easy for agents to understand and follow. I don't mind if my photos are featured in a brokerage ad in Architectural Digest or any publication. On the contrary, that's a good selling point to pick up more business in that brokerage. Hopefully it results in more listings for our client and more shoots for the photographer.

    I know the arguments out there that having lax licencing devalues our work or sets a bad precedent but I disagree. Structuring your business to cater to your clients needs first and foremost and then charging accordingly is the best way to run you business. Playing copyright cop and confronting clients who break the rules almost guarantees a net-negative result with that client in the long-term. Agents want photos to market their listings AND market themselves. I think all photographers should cater to both of those needs by default.

  2. My real estate broker just put out a directive to all agents who use a pro photographer to send to the main office a copy of the copyright license provided by the pro. The email more implied to me that my broker wants full copyright privileges but I doubt that will fly with photographers.

  3. I tend to follow Matt's direction myself. If asked about use outside the MLS I certainly do discuss licensing with clients. Many realtors, as you point out, have no idea what it means. If it's basic web usage for their own personal website, I don't mind at all but when we start talking about magazines, cover shots, billboards, logos, etc. my ears perk up.

    I was given a contract from a fairly well known agency stating that their brokerage wanted full national advertising rights to any and all images from their real estate shoots. I refused to sign the contract. It stated that they wanted "perpetual" rights as well as rights to publish in any and all mediums. I made clear that the photos I provided were for MLS use and if they wanted national advertising usage out of it, then they needed a separate license. It appears I lost a client but I'm also willing to walk away from a brokerage trying to cheapen the process.

  4. I agree with what Matt has said. I'm not sure if my actual terms are as loose as his, but I'll be damned if I'm going to discuss this topic with every agent. I'd almost rather have daily root canals. Maybe sending out an email about this topic to all current clients would be so bad, but I personally refuse to expose myself to that particular conversation happening over and over...

    I believe if a really bad case of infringement came up, I do have my terms in my invoice, which they paid of course. I would think that binds them to the terms at least to some degree?

  5. I've found a unique way to "get the point across" without putting the client off or making things uncomfortable.
    At some point I'll ask about headshots, saying "I charge a little more for them but unlike standard RE images, you actually own them rather than licence them for use"

  6. I am really shocked at the previous comments from photographers. I made $15,000 last year reselling usage of my real estate photos to subcontractors, landlords, architects, designers, stagers and homeowners. The more we slack in this the, more infringement will take place.

    I now have in place that any new client will sign a contract stating that they may use the photos for marketing the property for sale until the contract ends or the home is sold. Also in the contract is for them to direct anyone wanting usage of the photos to me and not to sell, distribute or give the photos to anyone.

    You are cheating yourself out of additional income that is rightfully yours when you don't explain to your agents their usage and licensing. If we don't, the mass use of our photos will continue until and I personally think that is wrong. Have confidence in your work and of course pride.

  7. I read some of these comments and realize that continuing downhill slide of this profession is really caused by the people now in the business. When I started out you had to apprentice, for years! You had to learn a craft, you really paid your dues. Because of that, you had pride in your work and what you had accomplished, and you protected the rights that came with that.

    Today, everybody is a "professional photographer". Camera's require no technical skills, and Photoshop fixes everything. No wonder today's photographers don't care how, or where, their images are being used, or by whom.

    I look a some of your portfolio's and I see really good work, yet you seem afraid to "own" what the law already affords you. I really don't get it. Why on earth would you not want protect what is yours? Don't care? Too busy? Too lazy?

    You either have use terms, or you don't. If not, you are simply contributing to the race to the bottom.

    I've had a long and very fruitful career at this. I'm glad I don't need to compete in this environment, because to me, it's just sad

  8. The few times I have "Explained my photo licensing policy" to an agent, it was either like I was talking to a wall...they just stood there or like when I have a disagreement with my better half....she just says "Ok honey, whatever you say" and then does it anyway. BTW, we've been together for over 40 years AND she knows best.

    I have my terms on my receipts, invoices, price lists and download link. If they pay, they agree, if they download, they agree, etc.

    Bottom line, if a client does not follow the "intent" of my terms, they are not my client again. I know those struggling have to bend like a tree, but once you have built up a business, you can control what happens for the most part. In the end, there are always those that have no ethics.

  9. I haven't bothered with a full-on contract. Why? Most top-producing agents have very short attention spans and won't read the whole thing. Sure, they can hand out 9-14 pg. contracts to buyers and sellers but they know that contract inside and out and can usually answer questions without looking at it. But your average high-speed agent will barely read the first few sentences, because they are moving on to the next thing.

    I put my licensing terms in my services and pricing sections of my website and I add a short spiel about copyright and licensing on my invoice. Then, if I see my photos anywhere they don't belong, I can have them taken down if I so choose.

    I just think we have to be discerning in how Gestapo we get about our photos' use by others. Our job requires us to be flexible, so we can't be 100% rigid. I mean, call someone who is using your photo (maybe a builder, for instance) and then turn it into a marketing spiel. You don't have to be the photo terminator.

  10. @ George

    "...I’ve had a long and very fruitful career at this. I’m glad I don’t need to compete in this environment, because to me, it’s just sad..."

    Every generation of photographers has had people who said that. Every. Single. One.
    Like it or not, businesses change. I challenge you to find any industry, anywhere, that operates just the same way today as it did in the 50s, 60s, 70s, 80s, 90s, or 00s.
    The photographers you mentored all went belly-up? I doubt it. The good ones went on to have great careers....but their careers didn't look exactly like yours. The new photographers coming up today will have great careers, too...but they won't look anything like my career.
    Things change. That's good.

    What really strikes me about the comments is that pretty much every person who advocates or defends the laissez-faire approach also describes the alternative as "complex, Gestapo, uphill battle, uncomfortable" etc.
    Yet nothing about a license agreement needs to be complicated or combative or even particularly "legalese". I think some photographers themselves are so freaked out by the concept that they end up freaking out their customers, too. It's a short paragraph and an even shorter, friendly conversation between adults who want to do business...about on a level with getting a library card and checking out a book.

  11. It's not that it's not okay to have a licensing agreement (I'm working on one to make it shorter and more succinct), just that no one should be surprised when an agent doesn't read it no matter how short it is. That doesn't mean they won't sign it. But I know at some point whoever wants to buck this licensing agreement off their back and use your photos for other purposes without your permission, will definitely read it when they get that inevitable call from you or a lawyer instructing them to take the photos down. But, that won't happen before they act blindsided and hurt and maybe even threaten to stop using you because you "got them with fine print." Most of us might respond to such a threat by telling them to go ahead, we aren't desperate for their business, right? At the end of the day, though, some people will have their own ideas and think THEY know all about photographers and our business and refuse to listen, or just go with someone else who just lets them do whatever the hell they want.

    I'm less of a laisse-faire approach kind of guy and more of a "just be careful and make sure you know exactly who is using the photos and how" before you try to have them sent to photographer jail. No reason to jump the gun. We should all be pretty good, at this point, at figuring out how our clients are using our photos and if they violate the license given them.

  12. @ Ryan,

    Agreed -- which is why I always stress that while your terms should be in easy-to-read writing, it's even more important to just TALK with your clients, face to face, making eye contact, to explain the facts of life to them. That goes further than reams of contract language.

    Be honest and transparent with your clients, they'll appreciate it! Avoiding the subject because you're afraid of "confrontation" but planning to fall back on your "fine print" if a situation ever does come up is a recipe for bitterness and resentment. You can prevent almost all of the situations from coming up in the first place if you're willing to TALK openly about your Terms of Service.

    "Oh, hey, Frank -- just wanted to make sure we're on the same page regarding licensing. You remember that I "own" the photos, but you're licensed to do everything you need to do to sell the house. My major issue is that you don't ever hand the photos over to someone else, that should all go through me, right? I know sometimes the stagers or builders or whoever will ask you for photos, and I can make that happen, but I have to be involved. Ok, cool, just wanted to make sure you were on board with that. Lemme get to work, this place is gonna look great!"

  13. I agree with Jerry Miller.
    "once you have built up a business, you can control what happens for the most part"

    I add a light copyright mark (my name) in the lower right corner of everything I "license".... Leaving it off for 'sold' images such as headshots, company building images, etc.
    If they don't like that, they can look elsewhere for a photographer. Some have, but I'm at a point in my business where I don't need to attract new clients or (as Jerry says) "bend like a tree".

  14. If you found a stager got your images from a realtor and used your images without permission, wouldn't you send a bill to the stager? I think that's how Getty handles it. No need to involve the realtor, is there?

  15. Question for those of you who re-license images between Agents...

    I work in a smaller market where i work for many competing agents. Sometimes, a higher-end home does not sell and the owner changes Agents at the end of their contract, and the new Agent is also a client of mine...
    My experience is, if the home was shot in a great time of year (late Spring, Summer, early Fall), the owners and the new agent want to re-use the existing images.

    How do you keep your client happy who is loosing the listing, while you re-license the photos to your other client (the competition to the original agent)?

    I have come-up with a practice to try and appease all parties, and to get paid myself... i get the 2nd Agent to pay me what the first Agent originally paid for the job (the re-license fee). Then to keep the original Agent happy, i credit back 50% of the proceeds towards the cost of a future job. I always ask the original client permission first, and if they don't want the images transferred to the new agent, i don't do it for the sake of the future relationship with that client. I have found that some (but not all) Agents are happy to get 50% back after not getting the home sold, better than 0% back...

    If a designer/architect/builder/homeowner (for rentals) want the photos, i charge the 100% license fee, no credit back to the original agent.


  16. @ Scott,

    I think you misunderstood me. I completely embrace change, I've been digital since the late 90's, and certainly do not still live in the 60-70's.

    Perhaps I was unclear with what my frustration was all about. It's about the lack of care when it comes to use licenses and contracts with newer photographers (as read in the comments). My issue is with all reasons and excuses for not even having - a license agreement. It doesn't matter whether you client is a Realtor, or Sheraton Hotels Worldwide, you need to have a contract, that licenses the use of your images. That is what a professional photographer does.

    I realize that photography is becoming a commodity (which is why I glad I learned the old way), because like Teri, I derive significant earning from licensing and royalty. So, because I learned the old way, I was taught the importance of this, and the protection of copyright. More importantly, this income will continue after I hang up my cameras. Do I have your attention now?

    My point is, that if you do not believe in contract/agreements, licensing, and copyright, you are part of the race to the bottom. It's a mistake in my opinion.

    There is enough challenges to copyright without us as professional photographers contributing to our own demise. Think I'm exaggerating? Zillow, Trulia, et al, all make a lot of money using our work without payment. Should they? I don't think so. but it's become the new normal because we did nothing to stop it.

    Most photographer charge Realtors less than say a commercial client, like a builder, or an architect. Why? Because we expect them to have limited use of the images. So, why on earth would you not want to make sure that the client that pays you the least, abides by some rules.

    I could go on at nausea, but I hope I was a little clearer here.

  17. @ Andrew

    I think your policy on re-listing images is very fair, and is much the same as mine. Yeah, losing listings is a sore subject for most realtors, but they know that sooner or later the shoe will be on the other foot. I think this is a win-win solution to an at times emotional problem.

  18. @ George,

    I think you were very clear. I understood your remarks regarding contracts and licensing and agree with them completely.

    I disagree with your assertion that the industry is going downhill. I don't think things have ever been better for photographers. The marketplace has expanded exponentially in the past 15 years - look around and you'll see that you are awash in photographs, they're EVERYWHERE! The internet in particular has created an enormous new venue for displaying photographs, look at the mind-boggling amount of money Google makes selling ads....and nearly every one of those ads features a photograph. This is the golden age of commercial photography.

    What you see as "the commoditization of phtoography" is in actuality a new market segment that didn't really exist years ago. Before the advent of cheap consumer cameras and the proliferation of new photographers, there was simply no way to offer cheap "commodity" photography -- it was not economically feasible. Now, it is, and there's an entire market for "good enough" photography and an entire population of "good enough" photographers ready to supply it.

    That doesn't mean that ALL photography, and ALL photographers are participating in that new market. My photos are commodities, and my clients don't treat them as such. I bet you're the same.

    The world of professional photography has expanded greatly, and there are large swaths of it that you (and I) don't want to participate in. That's all.

  19. Educate new clients (like Scott said) and include licensing terms in all of your quotes and invoices.

    Moreover, you don't need contracts or signatures to issue clients a license to use your photographs.

  20. I license my RE images to agents for use in marketing the home shown and allow the agent to use images to market themselves. They can use the images in all media and worldwide for the purpose. That gives the agent plenty of leeway in licensing for the images to do what they are intended to do. If the customer is a broker, they can also use the images to advertise their local office. I don't see why people are thinking that agents can't/won't/don't read a one page T&C/Licensing agreement. RE is mostly banker's boxes full of insanely complex legaleese contracts.

    I let clients know that they can't give away the photos to the sellers, contractors, stagers or anybody else. Those people should be referred to me and if I make a sale, I'll pay a commission for the referral. Now that they know there is money in it for them, they might not be so willing to send them out willy nilly. I also let them know that I charge much more for those licenses as the price is based on the value to the customer and it helps support the very low prices I charge for listing images.

    The conversation with a new customer is quick and easy. I explicitly go over my policy about reselling images to a subsequent agent. The new agent pays full price and I don't rebate any money back to the original agent. The original agent has had the use of the images to market the home. Value received. The new agent doesn't get a discount on the images. They don't have to arrange time for a photo session and the home may be vacant where it was furnished for the photos. The new agent can also have the images in minutes instead of days getting their campaign up right away.

    Avoiding the discussion of licensing and your terms and conditions is leaving the door open for misunderstandings down the road. If your terms are fair, there shouldn't be any problems. If an agent expects to be assigned the Copyright, you can quote them that price instead of your RE licensing fee. I have no problem collecting $100ea for a buyout of middle class home photos. I've got drives full of images I can license to third parties. Luxury estates and other unique properties will cost more. I'll even spend an entire day including twilight photos crafting each image with a 20 image purchase guarantee. I'm not holding my breath.

    If a national franchiser wants images I have made, they'll have to pay for the value, they aren't going to get it for free.

  21. Licensing is something that I never even considered when I started real estate photography. I thought I was just getting paid for my time, and I never thought anything more about it...

    Then I started getting better and realizing that MULTIPLE people were wanting the photos to advertise their services. So, if I'm producing work that is good enough for multiple people to want to use, why shouldn't I be getting paid fairly for it? Why should everyone else get to profit and grow their business on the back of my creative work? A plumber might charge $100/hour to fix a pipe and THAT REPAIR DOESN'T GENERATE INCOME FOR ANYONE!

    It might be said that if you don't value your work, then no one else will. But I say, if your work is good and you don't value it, EVERYONE else will and you will be the loser.

    License your work or it will be stolen. Simple as that.

    And as I have learned from Scott and others' wonderful advice, communicate it clearly to every client!

  22. I have a basic licensing statement on each invoice for real estate photography. Does it get much agent attention or comprehension? Probably not.

    My intention is simple and guides my decision process should a problem arise. The agent hired me to produce images to:
    A) market their listing, or
    B) market themselves
    If the usage does either of those things, I am happy. If the image usage is beyond A or B, further action is warranted. So far, this method has worked well for me and the agents understand.

  23. Today I had a broker ask me to sign a form assigning copyright to her company for any work I do with her, paid or not. To me, this seems extreme. Unless I missed something, our discussion so far has included the photographer asking for a written agreement (assigning limited rights to the realtor), not the realtor asking to own copyright for everything ever provided by the photographer. Here's the text.

    "All photographs and video provided by Photographer to agents and employees affiliated with Broker shall be subject to the terms of this agreement.

    Photographer agrees that all information, photographs and video related to and/or part of any work performed under this agreement (hereinafter the “Works”) are works made for hire and all rights in such Works shall be the property of Broker. If any of the Works are ever determined not to be works made for hire, Photographer hereby assigns all rights in the Works to Broker. Photographer acknowledges that the Works are the separate and exclusive property of Broker and that Photographer retains no rights in the Works. "

  24. @ Scott Van Manen. Either there is more to your story, such as you are being hired as an employee or only a complete FOOL would agree to the terms of this misguided nut case.

  25. Like Andrew, I also act like a broker between Realtors in the case where a listing didn't sell and a new broker lists the home. I'd offer another though or twist on that scenario though. Often, after securing payment for the photos from the new listing broker, I will pass the full fee back to the originally listing Realtor rather than keeping 50%, not always but often especially to a client that regularly brings me business.

    Reputation is everything and Realtors are a networking group and regularly talk to each other. Handing a new client a Starbucks card or passing the entire fee back to them when they have lost the listing builds a positive reputation and generates new business and loyalty.

    Just food for thought.

  26. I have occasionally had a client not sell a listing I shot and I relicensed the photos to the agent who relisted the property, and I have have never had an issue with doing this. I generally would not charge any less for the reuse of the photos than I charged the commissioning client. However, I usually work for agents for whom I am there regular photographer and who value what I do for them. They understand that I need to earn a living and selling reusage rights to me photos is one way that I do that. If clients value your work and your license terms are written clearly, I do not think this should be a problem.

  27. Today was the second time an agent emailed a contract to me from their office in direct response to the lawsuit against Zillow. Now I know how musicians feel when people steal music and they lose royalties. On principal, I just can't sign these contracts and I hope they don't become the norm.

  28. Today I had a great discussion with a legal hotline associated with real estate. In the discussion this is what is an issue, Photographs are taken of a property where no contract has taken place for the photography on the listing. The listing agreement state to the seller who initials off and signs that all photography and wording etc. are usable to market said property with MLS and third parties (but ownership is not conveyed or specified of photos in listing contract). The agent brokerage agreement states all listing become the brokers property and all inclusive items associated with the listing.

    Does the brokerage have the right to give that listing to another agent and allow them to market the listing with the photos from the original agent if their are no contracts related to the usage of the photos.

  29. @Ken - My opinion is all agreements regarding photos must be between the photographer and the listing agent.

  30. @ Scott Van Manen, “All photographs and video provided by Photographer to agents and employees affiliated with Broker shall be subject to the terms of this agreement...

    In a nut shell this is what my previous post is about but with out the writing/contract specific to photography, as said Does the broker own the rights to the photography?

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