Real Estate Photography image rights

Started Mar 24, 2022 | Discussions thread
Michael Fryd
Michael Fryd Forum Pro • Posts: 16,390
Re: Real Estate Photography image rights

ampimagedotcom wrote:

Brett8883 wrote:

.. is why they hired you to take the photos in the first place.

Rather than say "is why they hired you to take the photos in the first place", I would say this is why they (asked you and agreed beforehand to) paid you for the Rights to use your images after you created them.

Because unless you both signed some sort of 'Work Made for Hire' agreement beforehand, then you actually agreed to hire yourself to take the photos... which is what most (self employed) photographers do, even if they ask their client to pay them for something else instead of or in exchange for the the Rights to use their images.

Strangely, in the USA, a "Work Made for Hire" agreement is not applicable to many photography situations.

According to US law, there are two situations where something can be a "Work Made for Hire."

The first is when the work is created by an employee within the scope of his or her employment. Unless the photographer is a traditional employee (i.e. receive a W2 form), then the work doesn't fall into this situation.

The second situation has two elements. Both elements must be present in order for something to qualify as a "Work Made for Hire."

The first element is that the parties have to expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. The second element is that the work is specially ordered or commissioned for use in one of nine specific categories:

  1. as a contribution to a collective work,
  2. as a part of a motion picture or other audiovisual work,
  3. as a translation,
  4. as a supplementary work,
  5. as a compilation,
  6. as an instructional text,
  7. as a test,
  8. as answer material for a test, or
  9. as an atlas.

For more information, you can read the circular "Works Made for Hire"  from the US Copyright office

Unless the photographer was an employee, or the work fell into one of the nine enumerated categories, it is not a "Work Made for Hire,"  even if there was a "Work Made for Hire" agreement.

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