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Who Owns The Photos? Not All Realtors Understand Photo Licensing

In: 
Published: 22/07/2007
By: larry

Do your clients think they own the photos that you shoot for them? Mike over at www.martinvirtualtours.com told me about an misunderstanding that he recently had in which he shot a tour for a new construction agent where he included some neighborhood photos in the tour. Later, he provided the same neighborhood photos to a different agent for a resale listing in the same neighborhood. When the first agent saw "her" photos being used by a different agent on the resale listing she "went ballistic" because she thought the photos BELONG to her!

Mike asked me for my opinion on the subject. Here's what I told him:

In my opinion I don't think you did anything wrong. The problem is most agents have no experience with photographic rights issues and in real estate photography most times there is no explicit contract so everything is implicit, leaving opportunity for assumptions. Some photographers (not usually real estate photographers) make clients sign a statement that defines what the client usage is allowed. For real estate photography it may be a good idea to hand out a statement that describes client usage and the photographers rights.

I'm not a lawyer and don't give legal advice but here is my interpretation of the conventions for real estate photography:

  • Photographer owns the photographs i.e. owns copyright
  • Photographer licenses the client to USE the photos on the MLS and flyers for a particular listing until the listing is sold. It use to be common in our MLS for agents that listed the same property in the future to use some or all of the photographs. Recently our MLS made it more difficult to get the listing photographs from a listing.
  • Photographer may use the photos for marketing their own services or re-license them to other clients if the photos are general in nature.
  • If the photographer licensees the photos for MLS use, the agent cannot use one as a cover for Homes and Land magazine or other use without paying the photographer for the additional use. This is easy to control by just giving agents downsized photos for the MLS so the won't work for print media.
  • Some photographers license the photos for only one particular use... that is for ONLY a brochure or ONLY the MLS.
  • Photographer needs to understand that use on the MLS implies that photos are propagated to other many real estate websites that the MLS feeds automatically.
  • Use on the MLS also usually implies (this can be different depending on different MLSs) that the initial external photo becomes public domain when uploaded to the MLS. That is, other agents can use this photo when they list this same property in the future. Chcek with your local MLS for their conventions in this area.

Understand that this is just my interpretation... You could decide to do it differently but all this is involved enough that it would be worth writing down your particular interpretation of these conventions and at giving a copy to new clients the first time you shoot for them so you don't leave yourself open for misunderstandings like Mike encountered. Mike has decided to address this on the back of his business card after this experience. It's not good business practice to have clients upset.

31 comments on “Who Owns The Photos? Not All Realtors Understand Photo Licensing”

  1. I was always under the understanding that to legally publish a non news related photo
    a) You need a property release signed by the owner or able representative
    b) Like any commercial client from The Gap to Home Depot, When hired the photos rights are negotiated along with the price in writing before the first shutter cycles

    That said and if true, how many property releases do you have in your file?

    I have always allowed the originating agent to use my photos for the term of the listing.
    They are not transferable beyond the listing-sale-closing cycle. I can't imagine trying to crowbar an agents wallet open every time they wanted to use my photos that they paid for. There is a sometimes vague idea of fair use that does get broken. But there is a limit to what agents that I have to deal with are willing to spend.

    My 2 cents...

  2. I have this problem with condos. I take a shot of the communal pool and gardens. Someone else sees the photos of the property and urbanization and asks for my services. Do I take the same photo again of the same communal pool and gardens again from a slightly diferent angle or use the same shot last time? It's a tricky one.

  3. I would use the same ones again. I always tell the realtors that the only way that that they get my services at such a reasonable price is that they can only use them for the life of the listing and to market that listing and that I am free to use MY images as many times as I see fit and that this generally only refers to communal areas. I have a pricing sheet that pretty much goes over this on the back here. http://www.weinheimerphoto.com/Documents/Realestate.pdf. When they sign my estimate there is a statement write under their signature that they have read all pertinent regarding the contract they are signing (the estimate in this case). If there are anymore problems I may explain usage rights and also advise them that I would be more than happy to let them purchase further rights at a stock rate for calendars etc. or I would also be more than happy to write up a contract for standard advertising rights (over 3 times what they're paying).

    After that they generally begin to understand and they appreciate that they are dealing with a professional, which in many cases they never have before.
    Like any other kind of photography it is always a matter of educating your client and as long as your up front about it, there's generally no problem.

    I might however take 3 or 4 shots of those communal areas so that I could rotate them out...

  4. Great sheet - Gray.

    I work on a handshake in most cases and and everyone knows the boundaries including the ones that I don't fuss over. My goal is to keep it high end , yet simple and come back and do the next job in a week or so. I see many of my accounts socially and discuss my choics openly with them - sometimes we agree while at other times we revisit the shot ---> main thing is to win 90% of those situatutions.

    M. James

  5. Drew,

    While it is tangential to this discussion, photographs used for editorial purposes (including artistic expression) do not require releases either. You can sell a photograph in an art gallery or sell a book full of photographs without a release.

    Of course, if the same photo is used for commercial purposes to advertise a gallery show or a book, a release is required.

  6. Thank You and noted.

    But wouldn't a book of photographs for sale constitute a commercial work. Not to split hairs.

  7. William - where are you getting this from? Editorial means newspaper or magazine, maybe web, and part of the rationale is that they're essentially disposable. Art gallery or "book of photos" definitely requires a release. You can probably get away with it if the location of the image is not readily recognizable (e.g. a typical bedroom where it's the furnishings that differentiate it from other bedrooms), but if there are any distinguishing architectural characteristics at all, you're on thin ice.
    For good copyright information, join ASMP or APA; both have great resources for members.

    Even "editorial" use is being tested now, since news outlets are realizing that their archive of images are worth money. This is essentially untested, but when the Times, say, releases a compilation of images that appeared on the pages of the daily, is it still editorial? Of course not; but they don't have releases. Eventually this will be resolved in court.

  8. I use a property release form for ALL virtual tours that I shoot. I had a very difficult time finding examples to use online so I did the best I could. Would appreciate comments to help improve it. It's at http://www.nccotours.com/PropertyReleaseForm.pdf
    Pardon the website. I do my own HTML and it's currently on a free site. I just totally reworked the site 3 days ago so it's not yet complete. I just want to add that I'm so glad I found this website tonight. I can't stop reading. It's so full of very useful information.

  9. This is a GREAT post and definitely something that needs to be addressed. I was at a particular real estate office this past week dropping off a brochure I had created for a client, when I noticed a section of the local newspaper taped up on the wall. It was an advertisement for the office and showcased 30 properties. Lo and behold I recognized 6 photos (20% of the total) as my own, 2 of which were being used by agents I've never even met before! I approached the client who was allowing this and he IMMEDIATELY became defensive and informed me that HE owned those photos because he "paid for them" and therefore could do anything he wants with them. I didn't retaliate because my professional relationship with him is worth more to me than the money I would request for use of my artistic property, but still... When are we going to get the respect we deserve as professionals and as artists? Are we going to be bullied even though the law seems to be on our side?

    Keep posting, everyone. I want to read more points of view. This is important.

  10. I am looking to become a free lance or contract Real Estate photographer, do I need to have a company registered or can I do it individualy? How many of you out there are individuals verses a photography company? Do you have any advise for me starting out? I could use all the help I can gets, it is hard thinking about starting a company or a career from scratch. Thank you all so much!!!!!!

  11. @Samantha - Most real estate photographers starting out use the form of business called a "sole proprietor". That is they are doing business as individuals. There are companies that hire real estate photographers and pay by the job but typically pay much less that you could make if you find your own customers and run your own business.

  12. What a great post! Coming from the real estate perspective as a REALTOR - these are issues I had never really considered. This is great information. I'm curious - do any of you photogs include copyright info on the photos themselves?

  13. [...] and Use Stock Photos OnlineStock Artists Alliance (SAA) Publishes White Paper: Understanding …Who Owns The Photos? Not All Realtors Understand Photo LicensingStock Photo and Stock Images Licensing – Fotosearch EnhancedStock Photo and Stock Images [...]

  14. This can certainly be an issue. I always spell out photography image usage in the contract I have the clients sign. Allowing advertising with the digital image for realtor usage is fine - resale for profit is another matter altogether. This is an issue that is not going away any time soon. copyright law is always changing as long as you have lawyers involved charging by the hour...

  15. This is something that I come with yesterday.What do you guys think.And yes you can use this form if you need it.

    Property Release Form

    Photographer name
    Address
    Telephone number
    Property address.....................................................................................................................................................
    Realtor / agent name............................................................................Telephone number.....................................

    Owner’s Permission and Rights Granted

    By signing this release, I, the owner of the Property, hereby give the Photographer and Assigns my permission to....your company name.............................................................. to take pictures of my property, interior and exterior. I understand that these pictures will be used for the sole purpose of selling my property as per Realtor agreement signed with (Realtor name here ……………………………………………………..………………… ). I agree that I have no rights to the Images, and all rights to the Images belong to the Photographer.

    I acknowledge and agree that I have no further right to additional Consideration, and that I will make no further claim for any reason to Photographer and/or Assigns. I acknowledge and agree that this release is binding upon my heirs, assigns and any other person claiming an interest in the Property.
    I have the full legal capacity and right to execute this release and grant the rights herein granted with respect to the Property, and to bind all persons claiming an interest in the Property.
    Owner’s signature.............................................................................

    Owner’s printed name………………………………………………….. Date…………………………………………

    To be completed at time of shooting:

    Property owner escort name (Print)…………………………………………………………………………………………
    Property owner escort name (signature) By signing this the escort acknowledge that at completions of the work, there was no damages to the property that were the results of the photographer’s actions.

    Shoot date ................................................................................................

    Photographer’s signature..........................................................................

    Additional comments…………………………………

  16. @Joe- This is too complicated and involved. All you need to do is have a one page terms of service with a line at the bottom
    that says some thing like Client agrees to the above terms of service:_______ and have the client initial at the first shoot.
    and you should discuss the terms and make sure the client understands.

  17. I understand that the photographer owns the rights to the photos... my question is, what if I was a full time, salaried employee of a real estate team. Do my photos belong to the team or are they mine? I recently made a website to promote a freelance business and was told I needed to take the photos down because they belong to the team. Who is right here? (I am no longer employed by this team)

  18. @Kim- What your rights are as the member of a real estate team all depends on what kind of agreements you have with that team (either verbal or written). I'm not a lawyer so I can't give legal advice but the general convention is unless you have a specific agreement (written ones are best) with whoever you are working for the photographer that takes a photo owns the copyright as soon as they release the shutter. If you work for a real estate agent I would highly suggest that you have a written agreement that clarifies who owns the photos.

  19. I was just told by the MLS in my area that I am not allowed to sell my photos to the new agent taking over a listing that is on a different broker for record. She told me that the broker of record and the agent own the rights to the photos. I finally got her to admit that this was an internal thing through their multiple listing service. I 100 percent believe this violates my rights. Agents are trying to sue MLS When another agent uses their photos but if they get written permission from the photographer it should be completely OK. She’s trying to tell me I have to get written permission from the agent for me to allow another agent to use the pictures. That’s bull crap

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