Congratulations Alex Vincent, March 2024 PFRE Photographer of the Month! The theme this month was "Kitchen". Alex Vincent - #906 Yvonne Raaijmakers - #909 Peter Wingfield - #902 Here's what Alex has to say: Thank you for the award of Photographer of th ...
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in LA asks:
I got a call from an agent today to shoot a condo next week. I set up a time and everything and just as I was about to hang up he said he had a new agreement form that his office wants photographers to sign and that it says he will own the photos that he is paying for. I told him he is paying for the rights to use the photos for his marketing of the listing, website, MLS, etc., but that I still owned the copyrights. He went on to say "Sure it’s just to protect the agent" and I said I’d take a look at it.
He emailed me a pdf with the Keller Williams logo at the top, the listing address, his name as agent, my name as photographer, and his digital signature.
I’ve been shooting real estate for about twelve years and this is the first time I’ve seen or heard of this, and have never agreed to do "work for hire" and turn over all photos and copyrights.
Have you seen this or know of any offices doing this?
Yes, this has been going on all over the US for at least a couple of years. A number of brokers have decided to do this to protect themselves from a perceived liability. Some at the NAR even suggest doing this. A real estate photographer in Seattle recently told me that she has lost about a third of her business because she insists on retaining the rights for all her work.
I recommend several approaches:
This is largely an education problem. The DMLA has an effort underway to help solve this problem by forming a real estate photographers association to address this education problem. Stay tuned for more info on this effort.
Are agents asking you to sign a work for hire agreement like Eric's?
As a freelance videographer, I had to sign these things often. In fact, nearly every producer makes their director of photography (DP) sign these things. But photographers, photographers are a strange breed. They insist that their art has value outside of the original hiring purpose.
I call BS.
Sure, I'll bet there are a few of you who are able to re-license photographs of real estate listings to someone else, for example a local magazine. But the reality is, if you are not already doing this and making any significant income from re-licensing photos, you're foolish to turn down business due to a fear of missing out.
Perhaps you can get away with charging $5-10 more per house for this type of agreement, but seriously, 4x or 5x? That's an emotional response to a perceived slight. You are in business to make money. Make an informed decision and negotiate based on facts. Perhaps you're the rare photographer who is able to re-license your photos. How much of your income is derived from that? 20%. 50%. Whatever that number is, THAT'S how much extra you should ask for in order to sign a WFH agreement because that's how much money you'd be theoretically losing.
I was speaking with a lawyer friend of mine and he clued me in as to why this might be happening. After our chat, it is my belief that these types of agreements are a result of what I would call the dark side of the large national companies that continue to grow in our communities. The ones that hire local photographers through their website to produce work under their name. Virtuance comes to mind but there are many more.
It seems that these companies are not in the business as much for the front end but would rather make their money on the backside. Once they provide the images they essentially wait to see if you use them for any other purpose than to market the property and instead of sending an educational letter and request to remove the image as I might do, they immediately start a lawsuit. Their goal is to always settle so they claim for very large sums in these suits so that the broker is scared into paying a smaller (but still sizeable) sum of money.
It is my understanding that this is occuring more and more frequently. To which part of me says this is good as it will impede others from using my images for their own purpose without paying but also that it seems like a rather harsh way to go about it.
The National Association of Realtors has a page with these sample agreements: https://www.nar.realtor/law-and-ethics/listing-photo-sample-agreements NAR is not telling the members to get the agreements but are telling them to review their rights. https://www.nar.realtor/law-and-ethics/who-owns-your-property-photos I can imagine it will become an issue in the future so you better be prepared.
I did a small home the other day. When I was about to leave the agent said she had an contract from the NAR to sign. I signed it giving my rights away to the images with the box checked I can use them to promote my business. All the agents want to do is make sure they can continue using the images after the home is sold. They paid for them they should be able to use them without the threat of a copyright lawsuit.
Would your really watch out for and go after the agent if they sell a home and produce a post card to send to the neighbors about the sale? I would not. So for the rest of your life are you going to be paranoid enough to watch for all the images you take to show up somewhere in this wide world after the listing is sold?
I want to work and if signing that agreement means I still have a job I will sign it in a heart beat. No I am not raising my prices.
Should have added this to the above: It is a new age folks so grumble and moan but remember the next guy has to feed his family. If the agents organize this movement for contracts, which they are, you are going to have to make that decision. The agent who asked for me to sign is from a small independent agency in Pacific Grove. The broker is telling their 4 or 5 agents to get the contracts signed. It is a matter of time for the huge nationally real estate companies to do the same. You can call me a fool and I do not give a darn if you do.
"Offer to sign their agreement and raise your price 4 or 5 times high as it would be if the photos were just licensed for use"
GREAT IDEA!!
I like it
"If the agents organize this movement for contracts, which they are, you are going to have to make that decision." I have, and I'm not joining the opposing team. Especially one that is trying to force me to give property and rights away. I wouldn't sign it. My licensing terms are very generous, and frankly, I do not need to give everything away for free to stay in business.
The National Association of Realtors has a sample agreement that they suggest Realtors use with photographers, which specifies work made for hire. I have occasionally had agents try to use such an agreement with me and I explain to them how my business works and why work-made-for-hire does not work for me for real estate photography (or most other kinds of photography assignments). I really wish someone or some organization with some authority could talk with them about this, since I suspect that most Realtor requests for work for hire are inspired by the NAR in one way or another.
As far as the example of the photographer who lost clients due to refusal to do work for hire, I suspect that this photographer has been competing at the low end of the market, where photographers are looked at mainly as interchangeable commodities. I suspect that photographers who have more of an individual style and who cater to agents who value photography as a serious marketing tool are less subject to such pressures. I have not found any resistance the few times this has come up for me, and have not, to my knowledge, lost a client because of it. Perhaps this is partly because my market is mainly Silicon Valley, where there is a lot of appreciation for the value of intellectual property.
Unfortunately this is what some people call 'progress' and it's all part of the new 'gig' economy... Just another reason why you must be able to offer unique skills and not just be another run-of-the-mill photographer who is willing to drop his prices at the drop of a hat....
Get in line!
Zillow. Redfin and many others exist because of agents who supply them content. Then they sell it back to us or try to make people think we are screwing everyone over. 🙂
I think the best way to combat this is to remember that we are the seller and the agent is the buyer. Just like when renting an apartment, signing up for a cell phone plan, downloading music, or buying an automobile, the buyer doesn't present a contract to the seller. It is the seller's job to lay out the terms and conditions of the transaction, negotiate those terms if necessary, and have the buyer sign a document agreeing to the terms. It is in each of our best interests to have our lawyers draw up terms and conditions documents that we present to our customers that will govern our ongoing relationship.
Trevor Ward is speaking from limited experience. Work-made-for-hire agreements are common for video/movie productions and other larger-scale collaborative productions. Those who are interested can no doubt find some explanations for this on the Web. It does not necessarily work this way when a single person is the creator of the intellectual property, and most experienced commercial photographers do not normally do work for hire, the main reason is that they earn additional income from reuse licensing of their works. This happens with real estate photography too. I earn substantial supplementary income from selling reuse rights to my photos, mostly to architects, designers and builders that were involved in the project. When I do relicense images from real estate shots, I often earn more money than I made on the initial commission, while licensing fewer photos. Why, because these clients value the photos more than most real estate agents do. They will be using them as their primary marketing vehicles for many years.
As for Dave Clark's comments about agents wanting to use the photos for their own marketing after sale, you don't need to give up your copyright to do that. Just write that usage into your usage terms for the client.
Copyright is important for all photographers to understand. You can grant your clients the rights under a license to cover all their needs instead of a work for hire clause. In general, photography is ill-suited for work for hire under the work for hire definition in the copyright act. Companies feel they have less liability if they own all rights. It takes some education to explain to a client that a license that provides all the rights that a client needs will also provide security from liability, and will allow the photographer to use the work for his or her own personal purposes and for rights that do not conflict with the client. You should have an alternative license clause available and information to provide your client why what you are proposing works for both of you.
I'm on the side of not signing away my rights. Like David Eichler, I re-license images to builders and other people involved with a home for sale, especially flips and spec. builds. My goal is to build a nice portfolio of stock images that could have the possibility of bringing in an income year around and most importantly during the winter when RE jobs are very slow.
My RE license includes any use in marketing the home for sale and allows the purchaser to use the images to advertise themselves. It does not allow resale or transferring the images to another entity. This is generally suitable for nearly every agent/broker 99% of the time to allow them to avoid any Copyright liability. Since RE images are initially used for a short period of time and never again, agents/brokers don't need to own the images. It would be like buying a car in every town you visit instead of just renting one for the time you are there. I'm more than happy to sell out my Copyright for the right price, but RE photography rates are so low already that I'm not interested in assigning my ownership at the same low price.
My advice is to not sign any agreement that you are presented with that has you give up your rights to the images without being properly compensated (lots more money). It has to be remembered that when you sign away your Copyright, you can't use the images in your portfolio without permission and your customer can sue you. Not that they will, but it would certainly be well within their right to do so. It's also a pretty chicken manure move for an agent to ask a photographer to sign such an agreement after the photo session. This situation keeps coming around like clockwork and while some offices strongly insist on the agreements for a while, the better photographers usually decline to sign and in a short period of time the office isn't as rigorous, the agents don't bother to ask anymore and the whole thing gets dropped.
If you sign the agreement, you can watch the listing agent re-sell your images to the next agent when they lose the listing. This may not happen in your area, but here in LA houses often go through a few agents before they finally sell, especially at the top end of the market. I've had to put my foot down a couple of times and have actually lost a client because I wouldn't allow him to re-sell my images.
Also, if you sign, there is no provision (in the draft I saw) to keep your name with any editorial publication. So if your images show up on Redfin, Dwell.com, local papers' real estate sections, WSJ (although they also try to rights grab), Robb Report, etc. you will get no benefit. No one will know you made the images. My brand image is important to me so I insist on credit everywhere my images are published. It's been good for my business. So I'll never sign and have told my clients exactly that. I haven't lost one yet because of it.
So, last week I was contacted by a couple of agents out of an office where their broker's had insisted a few months ago on all their agents getting the NAR agreement signed by any photographer that provided photos for that office.
They wanted me to know that there was an office meeting where there was a major push back by all the agents that they were losing the talent of their preferred photographers who would not sign the agreement. That they were having a hard time finding photographers who would sign and of those that would sign were of sub standard talent.
They said that they and the other high end talent there gave the brokers a choice, either they could choose who they wanted to photograph their listings or they would leave. They had researched the "Mandatory" form and found that indeed, it is not mandated, just a suggestion.
This week I have photographed 7 properties for the agents that I had written off
BTW, 3 were re-shoots of properties they had already had shot earlier
I do work for hire. And, until today, I have never had any agent tell me I needed to sign an agreement before. What they asked me to sign was that they had my permission to upload the images to the mls. I know zillow et. al., picks up the images, but this is part of the internet marketing scheme in this day and age.
I don't place any value on the copyright of the images for myself beyond using some of the images I take to make slide show videos for my website and youtube. I also have a gallery on my site for some of the shoots I do. If an agent told me that I could not do this with the images I take, I would decline the job. But I have never had this happen.
I never resell the images, they were taken to sell a house. The housing market in the Los Angeles area is such that multiple bids are placed for a property and it gets sold the first time around. So i never have to deal with a second or third listing agent trying to use my images.
The work for hire definition is just fine.
Thanks for the tip to sign a licensing agreement with a photographer that won't transfer ownership of the photos. They took the photos so it is their property. The whole process will go over a lot smoother if the realtor and photographer work like this.