Real Estate Photography image rights

Michael Fryd wrote:

Brett8883 wrote:

Michael Fryd wrote:

Brett8883 wrote:

My point was more that when a realtor asks you to take “real estate photos” and asks for a price, what they asking for is you to take photos and a non-exclusive license to use the photos to market the property in any medium the realtor chooses for at least as long as the property is on the market.

If you do not intend to give that kind of license you would need to state that upfront and define the terms of your license so the realtor can either choose to go forward understanding fully the limits of your license or find another photographer. If you do not state this upfront but after the photos have been delivered then, in my humble “not a lawyer” opinion, the realtor has every right to not pay you. This is my industry best practices perspective not a legal perspective.

There are two separate questions here:

1. What should the photographer do?
2. What does the law require and say?

I absolutely agree that if the Photography is deviating from local common practice in that market segment, he should make sure the client understand those deviations.

In situations where the contract does not specify, the courts would likely decide to follow the law, rather than local practice.

For instance, suppose you were in an area where the local practice was for photographers to sign over the copyright for real estate photos. If your contract didn't mention this, the law likely would find that the photographer was the legal copyright owner.

From a marketing perspective, you may earn a very poor reputation if you have a habit of not providing the clients with the product they expect.

If there is a contract I would say that is telling them upfront about the license. It would be nice to say in plain English what is included with the license but I don’t necessarily think that would be grounds for non-payment or bad reputation. I was referring more to situations where there is no written contact. That’s usually how these things go.

If it’s just a verbal agreement to “supply real estate photos” to a realtor I have a hard time understanding how anyone could come to the conclusion that the realtor doesn’t have the right to put the images on a website to market the property. Again not a lawyer but I would think the court would look to industry practices when defining “real estate photos” in that case. For what other purpose could a reasonable photographer have thought the realtor was paying them for?

It's easy to talk in generalities, and it's easy to imagine exceptions. Imagine a homeowner hiring a photographer to photograph his home. Would there be an expectation that the homeowner has the right to use the images commercially? What if the homeowner decides to sell the home?

Assume a Realtor® hires a photographer to photograph a home. I'll agree that there is a reasonable expectation that the Realtor can use the photos to market that home. But after the home sells, does the Realtor have the right to continue to use the images to market his business? Can he use those images in advertisements for his agency?

What if the new owner of the home decides to flip the home, is the Realtor allowed to let him use the images to sell the home?

While the simplest question may be obvious to most, there can easily be difference expectations any time the situation strays from the most simplistic case. That's why it's important to have a written agreement that spells out the terms. It is also important for the photographer to make sure his client understands the terms. Even if the photographer is 100% following the terms of the signed contract, the client may be quite upset, if they didn't realize the implications of the agreement. Unhappy clients are not good for business.

Those other cases are good questions (the last one is a pretty straight forward no, however)  but that’s not what the OP was asking. He was asking if the realtor could use the photos on a website to market the home. That’s what prompted my response of “that’s the reason they hired you in the first place.” If the OP had asked any of your other questions my response would have been different.