Real Estate Photography image rights

Started 6 months ago | Discussions thread
Michael Fryd
Michael Fryd Forum Pro • Posts: 15,645
Re: Real Estate Photography image rights

Ryan Steel wrote:

Michael Fryd wrote:

Of course an interesting question is whether the Realtor is allowed to put the images on the Multilist. Multilist images tend to propagate to Zillow and other assorted services. Those images may stay around for decades, and can easily reappear the next time the property goes on sale.

If you are going to allow the images to appear on the multilist service, then you cannot reasonable expect use of the images to stop once the property sells.

Every RE photography contract that I'm aware of allows posting to MLS and allows for any resulting IDX distribution. After all, that is the primary purpose of the photos—to be put on MLS. That is the most important purpose. Everything else—web sites, brochures, etc.—are secondary and of lesser importance.

Like many legal issues, it's complicated.

Consider a photography contract that specifically allows the client to post the images to the Multi List Service (MLS). It seems clear that such a contract authorizes the client to agree to the MLS terms and conditions for uploaded photography. I suspect the MLS terms allow them to provide the images to Zillow, Redfin, and other sites.

Once a property sells, it is removed from the IDX feed and data is no longer provided by local MLS. Any photos visible on Zillow, Redfin, and other sites are there not because of the agent or MLS, but because those services purposely chose to cache and/or store the photos for that address without explicit permission.

I suspect they have permission.  The photographer authorized the Realtor® to upload the images to the MLS.  The Realtor agreed to the MLS terms and conditions based on the authorization he received from the photographer.

Zillow, Redfin, etc., got the images from the MLS, and handle them according to their agreement with the MLS (which is allowed by the MLS terms and conditions).

When the property sells, it is removed from the MLS feed, but the MLS does not require Zillow, etc., to remove the images from their sites.

Therefore Zillow and friends are allowed to retain and sue those photos after the sale.  This is allowed under their license from the MLS.  The MLS is allowed to license to others based on the license they were granted by the Realtor® when he uploaded the images.  The Realtor was allowed to grant that license based on the license he received from the photographer when the photographer authorized MLS use of the images.

The bottom line is that these subsequent, and somewhat permanent, uses of the image are inherent in providing the images to the MLS.  The photographer granted these rights the instant he authorized MLS use.

I sent a DMCA Takedown notice to Zillow over photos that were stolen by my former client and used to sell his house "by owner" directly on Zillow after he canceled his listing with me. Zillow acted immediately and the photos were gone within 24 hours.

I would be interested in the details of how your former client "stole" the images.

Zillow's terms of service absolutely allow other real estate agents to use images posted on Zillow to promote a property.  It does not preclude them from using images from a previous sale that were commissioned by a different Realtor.

Once you authorize a client to upload images to the MLS, you have agreed to the MLS terms and conditions.  You may not pick and choose which MLS terms to agree to, and which not to agree to.  If the MLS allows Zillow to keep the images up after the sale, and to display them for a "by owner sale", then you may not legitimately send a DMCA takedown notice, as the usage was authorized.

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In today's modern world, managing image rights can be quite complex.  If you allow your client to post images to any third party site (MLS, facebook, linked in, Instagram, etc.) then you have granted a license to your client, that allows them to agree to the terms of that service.

A contract contradicts itself if it only allows use until the property sells, and also allows a Realtor to post on the MLS.   In the USA, when a contract is not clear, the courts usually interpret it to the benefit of the party that did not write the contract.  Therefore restrictions that are inconsistent with MLS posting may not be enforceable.

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This is one of the reasons why it is important to have a lawyer draft legal documents.  A photographer might not realize that he is voiding many of his license restrictions by simply adding permission to post the images to the MLS, or to social media.

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