Real Estate Photography image rights

Started 7 months ago | Discussions thread
Michael Fryd
Michael Fryd Forum Pro • Posts: 15,656
Re: Real Estate Photography image rights

Ryan Steel wrote:

Michael Fryd wrote:

Ryan Steel wrote:

I photographed my client's home for sale and posted those images to MLS. When the house did not sell, listing was canceled. Client (seller) then got his own Zillow account and re-posted the same images for his "for sale by owner" listing. He's the one who took the photos without permission and re-used them for something that he did not have rights to do. Remember, I am the photographer and have not granted any licenses to my client, the seller. The only license is to me, the realtor.

Zillow took down the images upon receipt of my DMCA Takedown request. Your understanding is not correct.

When you posted the image to the MLS you agreed to the MLS terms and conditions. By posting you granted them whatever license their terms specify.

I suspect their terms allow them to provide the images to Zillow. It's quite possible that the owner did not violate Zillow's terms when he used images from Zillow on the Zillow web site.

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My point is that as soon as you authorize posting to one of these sites, you have granted that site whatever license they want.

When you post to the MLS, you agree to their terms and conditions. You don't get to edit those terms to suit your wishes.

You're talking in circles, Michael. You suspect this, or it's quite possible that... You have no actual knowledge. You throw out a speculation and then proceed to answer yourself when nobody even brought any of that stuff up.

I include qualifications because the specifics of a particular situation sometimes will result in an outcome that differs wildly from the general case.  Furthermore, I want to make sure that what I post can't be construed to be what attorney's call "Legal Advice".

But getting back to this situation, in the general case, when you upload images to a web site, you are agreeing to their terms of service.

We are all aware that we grant sites licenses when we agree to those licenses. The fact that Zillow acted on my DMCA Takedown request is evidence that they did not have the rights to: a) use those images after the sale, and b) provide them directly to the owner to sell his home by owner. If Zillow had the rights to those photos (which they don't), and had the rights to let the property owner use them in a FSBO listing (they don't), Zillow would not have removed all photos in response to my DMCA Takedown request.

Zillow complying with a DMCA takedown request is not an admission that they didn't have the rights to use a photo.  It is merely Zillow taking advantage of the law's safe harbor provisions.  Your photos are not important enough for them to fight over.

Consider a situation where you take a photo of a house, and provide a print to the owner.  You are clear that your intention os for them to enjoy the print, and that they do not have the right to reproduce and make copies of the print.  Despite not having a license, the homeowner scans the print, and provides it to his agent for use on the MLS.  That would be a situation where the MLS was not authorized, and the photographer would be within his rights to send DMCA takedown requests to the MLS and any other site with those images.

When you sent your request to Zillow, they didn't know the specifics of the situation, nor did they care.  By taking down the image they don't have to worry about it.

A dishonest person could test this theory by sending a DMCA takedown request to Zillow for an image they actually have the right to use.  Zillow will remove the image without investigating.  I strongly urge people not to perform this test, as you should not file false DMCA takedown requests.

Other Realtors are not allowed to use the photos of other Realtors without the permission of the original realtor who licensed those images and the copyright owner. You are 100% incorrect in your statement that Realtors can use pre-existing photos on Zillow. That is simply not true and shows how little you actually understand about this topic.

There are two separate issues here.

  • What are the rules imposed by the Realtor's association?
  • What are the rules imposed by law?

I would not be surprised if the Realtor's association prohibited their members from using images licensed by other Realtors.  However the rules of a trade association do not have the force of law, nor do they apply to non-members (such as an owner selling a home without the help of a Realtor).

On the other hand, if you grant a client the right to upload images to the MLS, and he does so, you have agreed to the MLS Terms of Service for use of those images.   If their terms allow Zillow to keep the images forever, or to display them for other realtors, then you have agreed to that.

I am Realtor for 15 years with over 400 career sales, most of which were listings with photos. I think I know what I'm talking about. Please keep your hypothetical speculations to yourself.

I don't doubt that you are an excellent agent, with lots of experience.  I don't doubt that you are very familiar with common practices in your area, and the rules of various trade associations.

Where we disagree is on the legal issues surrounding a photographer who grants a license to upload images to the MLS, yet includes restrictions that are inconsistent with the MLS terms of service.   For instance, image a photographer that grants permission to upload to the MLS, but prohibits use on other websites.  The two terms conflict with one another as you must allow use on other websites when you upload to the MLS.  If the photographer provided the license, the the ambiguity will generally be resolved in favor of the other party.

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