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Who Owns The Photos

Published: 18/11/2008
By: larry

One of the basics of real estate photography that I find there is always a lot of confusion and misunderstandings surrounding is that of who owns the photos from a real estate shoot. Agents are sometimes surprised to find that they can't do anything they want with the photos they get from a photographer and photographers are always surprised to find out that agents don't understand use restrictions.

Here are some considerations that can help communications around this subject:

  1. Take the time to understand the photo use rules of the MLS in your local area. Many MLSs have rules and conventions that allow the primary exterior photo to be used beyond the current listing. Don't make your photo licensing agreement so it's impossible for the agent to comply with both your agreement and the MLS rules.
  2. Think through and document your photo licensing expectations and take the time to review them with new clients. It wouldn't hurt to have new clients sign a photo usage agreement, but at least give it to clients and have a discussion about your expectations. Most agents just don't have a clue about photo licensing but if they understand your expectations they will go out of their way to comply. In a previous post on this subject I listed what is considered the standard practice for most real estate photographers.
  3. Some photographers, notably franchisees, give ownership of the photos to their client. I bring this up because if you are competing in a market with an open2view franchise this may be a competitive advantage for open2view. Ownership of the photos by the client is unusual, most photographers license photos for a specific use.
  4. In a recent flickr discussion, Scott Hargis raised a good practical approach to the conundrum I point out in 1. Scott says. "There's a third option, which has never failed me yet --- just telling the "new" agent that the photos are copyrighted by me, and they have to pay me -- and that includes the primary exterior. I don't think most agents are really up on the fine print of MLS rules to begin with, and even if technically that one photo is up for grabs, I can still appeal to altruism; after all, right is right, fair is fair, and most people understand that and are willing to play nicely."

I hear about a lot of misunderstandings about the use of real estate photos. Most of these misunderstandings can be avoided by establishing, documenting and discussing your photo licensing policy with clients upfront. As Scott says, " most people are willing to play nicely"

7 comments on “Who Owns The Photos”

  1. I think it is important to establish with clients whether photos are "sold" or licensed. For my own purposes agents can use the photos for marketing the listings or themselves. The local MLS does not permit photos to be used by anyone except the listing agent. I have found listing agents using my photos for they own purposes after the new agent copied them from my client's listing. This is against the rules and they get reported. The local association does fine agents for using photos from a previous listing.

  2. The MLS rules and for that matter agreements with most real estate portal providers around the globe [that we or the agent or the real estate agents office uploads images to] have clauses in them that give the portal owner control and ownership of the images once uploaded.

    So if a photographer wants to argue the toss on ownership they are effectively putting their client in jeopardy of being guilty of contravening an agreement that they or their broker has signed, [more than likely] without the agent being aware of the detail in the agreement!

    It is not the policy of Open2view to put their clients in a position whereby they could be in breach of an agreement or contract signed by their broker which they as agents of the broker are contracted to abide by.

    This is not a 100% satisfactory position to be in but it is a pragmatic one. The reality as pointed out in one of the responses above is that the images are in most cases compressed quite a bit to go on to these other portals that there is not much left to rip off anyways. There are two ways to look at this, as an infringement of our copyright or as a compliment to our excellence.

    Branding each image is always a great way of promoting ourselves but then there are portals that insist on no branding on the images. I wonder why??? Because ab lot of them then them on sell their data and images, ours included!!!

    Great promotion if you can get it through, though!

    I have often seen our images on other portals with the Open2view Logo on them and personally think it's all good for business!

  3. I have just entered the PFRE realm and have been surprised at the responses to this question. Photography is an intellectual property, and also physical in the case of prints and film, and is the property of the person who created such property. This being said, if photographers are allowing their photos to be used, without their consent or proper reimbursement, they might as well give all of their belongings away. We don't go to a hotel, sleep in their beds, use the bathroom, dirty the towels, and eat the $11 dollar peanuts and then not expect to pay. Yes, no tangible asset is being given to us, but we are still getting the benefit of a hot shower and a slightly comfortable bed. Agents need to understand that we are LENDING them the use of our intellect and skill in marketing themselves and their listings, and that they can't just rip off someones work or pass it out for free use.

    I on the other hand am flattered if a customer, either the home owner or agent, prints one of my photos and hangs it on the wall as a memoir. To me, as long as only the original customer uses it for their personal use it's no bother. If I was to enter an agent's office and noticed a 4x6 or 8x10 of a house I shot for them hanging on the wall, and I have, I would be pleased. I know that they were proud of the listing and proud of how my photography represented it.

  4. Chris- From what I've heard in talking to many Realtors and RE photographers this is an area where there is typically a big disconnect. Not because of any ill intent, but just because Realtors don't understand what the Photographer expects and the photographers don't understand what happens to photographs once they are put on the MLS. It's your job as a photographer to make sure there is no disconnect between you and your clients.

  5. Nobody has answered me satisfactory on this issue? I am a Real Estate Agent, and an Amateur Photographer. If I take a primary exterior Photograph of a Mansion, and put it in a Postcard I sent. I been told that I can be sue for that, but nobody tell me why? I am not saying that is my listing, neither I have sold that property, it is just in the background.
    Also picture was taken from public ground. Can anybody tell me what is the infringement here??
    Thanks in Advance,
    Pablo Arthur

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