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When An Agent Leaves A Real Estate Office Should The Broker Get To Keep The Listing Photos?

Published: 06/07/2015
By: larry

BrokerRelationshipLast week Les asked the following:

Your site has great info and it is helping my wife and I as we get started in our real estate careers. I do have a question though...

My wife and i just left an agency for a new agency. The broker from the previous agency is insisting that the pictures we took of the listings we had are now his since he has taken over the listing. he says that when we left the agency that we abandoned the images. I am furious that he continues to use our work and profit by it. There was no agreement in writing. Do we have recourse? I do not give him permission to use the images. May I sell them to him?

First of all I'm not a lawyer so this isn't legal advice, just my opinion. I think in the case you describe there are a couple of things to think about:

  1. Yes you own the rights to the photos and could probably stop your previous broker from using them. But in most situations the broker has the rights to the listing when a listing agent leaves the office.
  2. My experience from being an agent with my wife for a long while in the Seattle market is that in the big scheme of things having a great relationship and reputation with all the brokers and agents in you local market is much more important than a few listing photos. One day you are going to be on the opposite side of a transaction with your old broker and if you don't have a good relationship with him you won't be able to do a good job representing your client  like you need to.

So yes, you are probably right, the photos are yours but in the over all scheme of things what happens to these listing photos is inconsequential! Just walk away! If you were a photographer only rather than a Realtor my answer would be different.

7 comments on “When An Agent Leaves A Real Estate Office Should The Broker Get To Keep The Listing Photos?”

  1. Larry Nailed it! Too many times I have heard photogs complaining about the misuse of listing photos and how they are going to take action, all the while not seeing the big picture. Sometimes being right does not pay off.

  2. If your contract with the broker gave him/her rights to use any marketing materials you develop, you were a W-2 employee and taking photos was part of your job or you had some other agreement in place about marketing materials used on listings, the photos do belong to him or he has rights to use them. If you were strictly a 1099 contractor and took the photos on your own, you own the copyright to those photos even though (in the US) the broker "owns" the listings. If the broker is using the photos outside of advertising the home depicted, you may have a stronger case for a copyright violation.

    If you want to pursue it and start a massive bridge fire, you can file a DMCA notice with the local MLS claiming a copyright violation. The MLS would then have to notify the broker that a violation has been alleged and also remove the photos within one business day from the MLS or become liable for an infringement along with the broker. If the MLS tells you to shove off, there are legal remedies, but invoking them might put you on a black list and unable to use that MLS. Any legal action would have to be filed in Federal Court (yep, it's a Federal case) and sans a registration, you could not collect attorney's fees and any award would be limited to market price of the images.

    Find an attorney that specializes in Intellectual Property law if not photography specifically. It's a specialty and you might not get valid advice from an attorney that doesn't have a practice in that field. Even attorney's get caught up in urban myths. Law cases are just as specific as a medical diagnosis. A good attorney is going to be able to ask all of the right questions about your particular case and advise you on your options.

  3. In California, the standard CAR contract between the seller and the agent (the broker since the agent is a representative of the broker) gives all rights, including photos, to the listing broker (not to be confused with agent). Additionally, the standard contract between agent and broker also gives the broker the right to all materials upon termination. In most places, your broker really owns and controls EVERYTHING.

    Since they said they didn't have a contract then most likely they still own the rights.

    -Real estate broker for 11 years

  4. I say NO.

    My arrangement is a simple licensing aggreement between me and the agent, and it's the agent who paid the licencing fee. The broker has no entitlement to use my product, since the agent doesn't own the product. I don't have any agreement with any brokerage.

    If the agent leases a car, the broker isn't entitled to drive it, nor is the broker entitled to occupy an agent's leased office space.

    The only way it might be different is if the broker pays for all the pics the agents list with.

  5. Another way to look at it - Suppose the agent had staged the home, either with his own furniture, or paid to have it staged? Is the broker entitled to retain that staging for the duration of the listing? I think not. It's doesn't constitute "real estate materials".

    Neither do real estate photos, regardless of whether the agent was acting as a photographer. I would just give him a simple choice: pay or take them down. Photos can't be classified as "real estate documents or materials" in a legal sense, since the shooter retains the copyright. They are marketing assets that hinge on a license to use them. In copyright law, there is no distinction between amateur and profession, it only concerns itself with authorship. So, as long as you weren't considered an employee of the brokerage, the usage rights to the photos are purely determined by you, the creator.

    On the business side, addressing Larry's concern about working relationships, I would warn against easily caving to the old broker, as IMO, it would be seen as a sign of negotiating weakness, which might hurt future clients even more then just forcing the old broker to acquire his own photos, which is a minimal cost to him. I think it's more important that he knows you have the ability to stand up for yourself and your clients.

    An interesting comparison is the European "freedom of panorama" bill that's being considered. Most people believe it will prohibit photographing landmarks, but that isn't true. It's very specific: “The commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorization from the authors or any proxy acting for them.” In other words, the restriction is only about "commercial" usage of the works of other creators, not about the snapshots of tourists.

    In this case, the broker would be violating your rights as the photo creator "for his commercial gain", and you should be compensated, or he should take them down.

  6. I was a licensed Realtor for years (Illinois) and my advice to you is to move on and worry less about small things.

    I am not an Attorney, but my opinion is that you MAY be able to force the Broker to stop using the images, but this makes you look small and petty.

    I also have changed agencies, and left behind my images and listings. Dust off your sandals and walk away. If nothing else, you can use the images on that listing to show new prospects the quality and value of your work.

    You are only damaging yourself if you choose to pursue. Other brokerages will not be likely to want you if they find out you entered into a legal battle with your Broker over listing photos.

  7. @ Les

    When you say "pictures we took of the listings", are you saying that you were the actual photographer? Or, that you paid somebody to take the pictures on your behalf? It makes a difference.

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