Real Estate Photography image rights

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HomeToursLV Dave New Member • Posts: 7
Real Estate Photography image rights

I have a question for the masses. I have a Realtor that recently went to a convention where he met another Realtor who was offering Single property Websites for their clients. He asked them who was creating the website for them and contacted the person. They were charging $200.00 to create the site for him per listing. I provide a tour for my pics through Tourbuzz. In Tourbuzz I can link a custom web address to the tour in effect creating the same single property website where I just need to purchase the domain and link it over. This other person is getting my images from the realtor and plugging it into a similar platform to Tourbuzz, buying the domain, and charging the Realtor the $200.00. I have talked to my Realtor and now do it for him for much less money but is the Website creator breaking any copyright laws using my images for making money or does a realtor who paid me to shoot the home have the right to give him the pics to create the site?

Thanks

avidly lucid Regular Member • Posts: 168
Re: Real Estate Photography image rights
2

I believe the images are yours unless you have signed a contract to the contrary.

I have had this happen and the realtor asks me if it is alright to give the images to the owner, for example. I usually say yes. In other cases, where the images are going to a third party, then I bill whoever receives the images at an agreed upon amount.

I'm sure you can find a more definitive answer at https://photographyforrealestate.net

In any case, the realtor does not hold the copyright and is not free to do whatever he/she wants with them.  You are the copyright holder.

OP HomeToursLV Dave New Member • Posts: 7
Re: Real Estate Photography image rights

Thank you!

OP HomeToursLV Dave New Member • Posts: 7
Re: Real Estate Photography image rights

One more question then, Is it the Realtor who is violating the copyrights or the Web creator who is making money off my work or both?

RDKirk Forum Pro • Posts: 16,409
Re: Real Estate Photography image rights

HomeToursLV Dave wrote:

One more question then, Is it the Realtor who is violating the copyrights or the Web creator who is making money off my work or both?

Both. Neither has the right to sell your images for further commercial use or to use them to solicit business unless you have permitted it.

I word it in that particular manner because there is room for someone to have taken your images, made a minor transformation (such as scale) and sold them as pieces of art.

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Gato Amarillo Veteran Member • Posts: 9,038
Re: Real Estate Photography image rights
1

In the US for a situation like this you own copyright unless you have expressly assigned (preferably in writing) to someone else.

The realtor has whatever rights you gave them in your agreement. If you do not have a written agreement you should, preferably in the form of a contract signed by all parties involved.

I would say your best course of action is to read up on copyright law then get with your client for some discussion. Maybe you can work things out.

From what you say I'm guessing the money involved is not enough to pay for a lawyer to take things to court, but you might get some compensation by sending an invoice and letter to the parties who used the photos. You can also file a 'take down notice' under copyright law. That should be enough to get your images removed from the website. Depending on the timing you may be able to strengthen your case by registering your copyright. You can find more info on both matters in a Google search.

Of course any drastic action could ruin your relationship with your client, something you need to consider.

Gato

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OP HomeToursLV Dave New Member • Posts: 7
Re: Real Estate Photography image rights

Thank you very much for the reply and info.

Diafine Regular Member • Posts: 116
Re: Real Estate Photography image rights
4

You’re getting incomplete and misleading answers, partly because your question is unclear (and may be that way in order to elicit the answers you want.)

First thing: You need to tell us exactly what your agreement with the Realtor says. What specific rights are you licensing to him/her?

Yes, you own the copyright to the photos you made. That may or may not be important in this case. If, for instance, you’ve licensed the photos for the promotion of an individual property, in media commonly used by real estate agents for that purpose, while you do own the photos the Realtor is allowed to use them to showcase that home (in print or on the web.)

Further, if this website guy is making sites to sell individual properties at the behest of the Realtor, and for the purpose of marketing those specific properties, you may not have anything to complain about. The case would be no different than if the Realtor hired a graphic designer to make a flyer for the property, using your photos. That's why he/she had you make them in the first place, right?

It all comes back to your agreement with the Realtor. In the absence of a written contract, enumerating specific licensed rights (including duration), it would likely come down to your verbal agreement AND/OR whatever the customs, standards, and practices are for that industry. If the Realtor paid you to make pictures, it's assumed that he/she did so in order to sell that property — and since Realtors use the web to do so in this day and age, it would be reasonable for the website guy to make a site using those pictures. Follow?

Again: you own the pictures. That is (likely) not in dispute. What you agreed to allow the Realtor to do with those pictures is what the discussion needs to be about, and to get proper answers you need to divulge what you agreed to.

(Yes, I have done a lot of photographic work in the real estate industry. Yes, I have taken legal action against agents who infringed my copyright. I learned a lot in the process.)

OP HomeToursLV Dave New Member • Posts: 7
Re: Real Estate Photography image rights

Thanks for your insight. First of all I was just asking what others opinions (like yours) were. I am not looking to take any action with the Realtor as I have a great relationship with him. I was more curious about the web designer who received the pics from the Realtor, literally dropped them into the identical format of tour to which I deliver, and resold it back to the Realtor at a highly increased cost. I understand what you are saying that it depends on the agreement with the realtor and moving forward (we are relocating in a few months to the East coast) I will be sure to have an initial agreement with any Realtors that I do business with. Yours is exactly the answer I was looking for. More general knowledge. If the web designer was actually creating a custom page or flyer for a listing it probably would not of bothered me as much as him merely dropping my pics in a template and reselling. It is and was totally my responsibility to talk to the realtor about this and I did, which is why I said in the original post that the Realtor is now using me for the same service. Just irked me that someone else thought it OK to take someones work, spend 10 minutes buying a web address, and resell it back to the Realtor. But I appreciate your input and will be sure to be more clear with my clients in the future.

Michael Fryd
Michael Fryd Forum Pro • Posts: 15,793
Re: Real Estate Photography image rights

HomeToursLV Dave wrote:

Thanks for your insight. First of all I was just asking what others opinions (like yours) were. I am not looking to take any action with the Realtor as I have a great relationship with him. I was more curious about the web designer who received the pics from the Realtor, literally dropped them into the identical format of tour to which I deliver, and resold it back to the Realtor at a highly increased cost. I understand what you are saying that it depends on the agreement with the realtor and moving forward (we are relocating in a few months to the East coast) I will be sure to have an initial agreement with any Realtors that I do business with. Yours is exactly the answer I was looking for. More general knowledge. If the web designer was actually creating a custom page or flyer for a listing it probably would not of bothered me as much as him merely dropping my pics in a template and reselling. It is and was totally my responsibility to talk to the realtor about this and I did, which is why I said in the original post that the Realtor is now using me for the same service. Just irked me that someone else thought it OK to take someones work, spend 10 minutes buying a web address, and resell it back to the Realtor. But I appreciate your input and will be sure to be more clear with my clients in the future.

There are two separate questions:

  1. What should the arrangement be?
  2. What is the actual arrangement?

As others have pointed out, in the US, the photographer is most likely the natural copyright owner.     That means that absent any agreement, you may place various restrictions on the duplication or copying of the photos.

The real question, is what agreement you may have made with your client?  Generally, when you provide images to a client, that includes some sort of copyright usage license.   As to what license you are providing, that's a business decision on your part.

Let's assume that your license included the right for your client to use the photos on a web site.   Your would generally be free to overpay someone to build that site.  You seem annoyed that this is what happened.

In the future you could try to give a license that required your clients to get approval from you before they could hire someone to build their website.   I suspect that this wouldn't be a good business move on your part.

Perhaps the best solution is to add web site design services to your offerings.   Apparently in your market segment, this is a high profit offering.

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Fancy Termite Regular Member • Posts: 163
Re: Real Estate Photography image rights

In digital era of internet "image rights" is very vague thing. You need to consider the fact that people who can use your image for free would use it for free until you can legally do something. It's just how it is in 2022.

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Ryan Steel Regular Member • Posts: 154
Re: Real Estate Photography image rights

Forgive my bluntness, but it sounds like you are only upset because your client did not use you to create the home tour. Instead, your client used someone who charges much more than you do. So?

While I do not know what your contract with your client specifies, I can tell you that most (if not all) RE photography contracts allow the listing agent/broker to use the photos in almost any form as long as it is in the context of marketing and selling the home. It would be ludicrous to expect otherwise.

If your client were to hire an expensive graphics designer to create a magazine advertisement (or advertorial) using your photos, would that also upset you? Are you going to go after the graphics designer and magazine for copyright infringement because they are making more money than you?

How can you be shooting for real estate agents and not know the answer to your own question? Don't you have a contract with your client? What does the contract specify? Are you a famous, recognized photographer who needs to protect their IP? It's just a real estate shoot, my friend. Get off the pedestal.

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Sagittarius Veteran Member • Posts: 8,435
Re: Real Estate Photography image rights

Ryan Steel wrote:

Forgive my bluntness, but it sounds like you are only upset because your client did not use you to create the home tour. Instead, your client used someone who charges much more than you do. So?

While I do not know what your contract with your client specifies, I can tell you that most (if not all) RE photography contracts allow the listing agent/broker to use the photos in almost any form as long as it is in the context of marketing and selling the home. It would be ludicrous to expect otherwise.

If your client were to hire an expensive graphics designer to create a magazine advertisement (or advertorial) using your photos, would that also upset you? Are you going to go after the graphics designer and magazine for copyright infringement because they are making more money than you?

How can you be shooting for real estate agents and not know the answer to your own question? Don't you have a contract with your client? What does the contract specify? Are you a famous, recognized photographer who needs to protect their IP? It's just a real estate shoot, my friend. Get off the pedestal.

You cannot create something and make money out of it using somebody's else pictures without permeation. It has nothing to do with agent but has everything to do with graphic designer.

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Ryan Steel Regular Member • Posts: 154
Re: Real Estate Photography image rights
1

Sagittarius wrote:

Ryan Steel wrote:

Forgive my bluntness, but it sounds like you are only upset because your client did not use you to create the home tour. Instead, your client used someone who charges much more than you do. So?

While I do not know what your contract with your client specifies, I can tell you that most (if not all) RE photography contracts allow the listing agent/broker to use the photos in almost any form as long as it is in the context of marketing and selling the home. It would be ludicrous to expect otherwise.

If your client were to hire an expensive graphics designer to create a magazine advertisement (or advertorial) using your photos, would that also upset you? Are you going to go after the graphics designer and magazine for copyright infringement because they are making more money than you?

How can you be shooting for real estate agents and not know the answer to your own question? Don't you have a contract with your client? What does the contract specify? Are you a famous, recognized photographer who needs to protect their IP? It's just a real estate shoot, my friend. Get off the pedestal.

You cannot create something and make money out of it using somebody's else pictures without permeation. It has nothing to do with agent but has everything to do with graphic designer.

Not when the agent has the rights to use the photos in the course of marketing the property for sale. That covers all uses. I'm a Realtor. I hire photographers all the time. I know how photography in this business works.

The magazine would be making money by charging the agent for the ad space. The designer would be making money by designing an ad for the agent. Neither is violating anyone's copyright by performing work-for-hire for the agent and selling advertising space. The agent, remember, has (or should have) a license to use the photos in all situations for selling/marketing the home for sale. The only person making money from the actual images here is the photographer. Everything else is a legal and permissible use if using the most common form of contract language used in this business.

The other bit of advice I would give the OP—do not take advice from anyone who is not in this actual business of real estate or real estate photography. They would only be speculating without actual knowledge, and 90% of the time they would be wrong.

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Brett8883 Contributing Member • Posts: 814
Re: Real Estate Photography image rights
1

Yea I agree in that you presumably have given the agent the license to use the photos for marketing a property. You may not have a formal agreement but that’s the basic purpose of real estate photos. If that’s the case then the agent has every right to use them in on a website, in print, or any other form of advertising. If you don’t intend to give those rights you would need to make that clear up front because that’s what a realtor means when they hire you to take real estate photos.

This other person isn’t selling your photos he’s selling a website and website design. The agent is supplying your photos to be used for marketing purposes which is why they hired you to take the photos in the first place.

Honestly with Real Estate photos the only common copyright issue is the agent giving the photos to another agent to use. Then there’s a problem. Luckily most agents aren’t inclined to do that and awareness about this being off limits is getting much better.

ampimagedotcom
ampimagedotcom Contributing Member • Posts: 945
Re: Real Estate Photography image rights

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.

Michael Fryd
Michael Fryd Forum Pro • Posts: 15,793
Re: Real Estate Photography image rights
2

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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ampimagedotcom
ampimagedotcom Contributing Member • Posts: 945
Re: Real Estate Photography image rights

Michael Fryd wrote:

ampimagedotcom wrote:

.. some sort of 'Work Made for Hire' agreement ...

Strangely, in the USA...

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.

So what do 'you guys' call it, if someone agrees to pay you for your time & expenses to do the work, instead of or in exchange for the the Rights to use your images afterwards?

Michael Fryd
Michael Fryd Forum Pro • Posts: 15,793
Re: Real Estate Photography image rights
4

ampimagedotcom wrote:

Michael Fryd wrote:

ampimagedotcom wrote:

.. some sort of 'Work Made for Hire' agreement ...

Strangely, in the USA...

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.

So what do 'you guys' call it, if someone agrees to pay you for your time & expenses to do the work, instead of or in exchange for the the Rights to use your images afterwards?

In the context of US Copyright Law, “Work Made for Hire” has a specific meaning.  It refers to the special case where the original copyright owner is not the creator of the work, but the entity that hired the photographer.   In terms of how long the work is protected, it matters whether or not it was a Work Made for Hire.

.

In the general case, in the USA, when a client hires a photographer to take images, it does not fall into the “Work Made for Hire” category.  It simply is a client hiring a photographer to take photos.

Under US law, this does not mean the client owns the copyright.  The photographer would typically be the copyright owner.

Prior to digital, a wedding client might only receive physical prints.  They would not have the right to reproduce those images.

In today’s world, the client might want to receive digital images, rather than physical prints. In that case they would typically receive a license to make copies (prints) of the images for certain uses.  For instance, a wedding photographer might retain copyright, and only allow the client to make prints or copies for personal use.  The wedding client might not have the right to reproduce the images for commercial use (such as on a website to sell wedding dresses, or an advertisement to promote the venue).

A commercial client likely wants the right to reproduce the images for commercial purposes.  Thus, they may insist on a copyright license that allows their intended use.

Alternatively, the photographer can transfer the copyright ownership to the client.  In the USA, a transfer of copyright must be executed in a written document.

.

In the USA, paying someone to create an image, does not always mean that the you own the copyright to the image, or to even make copies of an image.

Similarly, paying someone to model, does not always mean that you have the right to use those images for whatever you want.

A well educated commercial client may insist on both a copyright license/transfer from the photographer, and a model release from the model.  These documents may grant broad rights for the client to do whatever they want with the image for perpetuity,  or it may be limited in scope to certain uses during certain time periods.

There is no guarantee that the scope of the two documents (model release and copyright license) will be the same.

There are exceptions.  There is a set of situations where a copyright license is not needed, and a different set of situations where a model release is not needed.  There is some overlap between these two sets.

.

The separation of Intellectual Property rights from physical objects, is not limited to photography.  If you buy a Blu-Ray disc of a movie, you own that particular physical disk, but you do not own the copyright to the movie.  You may not make copies of that disc to provide to others.

When you buy a piece of art, you may be getting only the physical piece, and not the copyright.  Spend $20K to buy a painting from an artist, and you may own only the painting, the artist may retain the copyright.  Even though it is “your painting”, you may not have the right to make copies of that painting (for instance you may not have the right to make and sell postcards featuring that painting.

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ampimagedotcom
ampimagedotcom Contributing Member • Posts: 945
Re: Real Estate Photography image rights

Michael Fryd wrote:

ampimagedotcom wrote:

Michael Fryd wrote:

ampimagedotcom wrote:

.. some sort of 'Work Made for Hire' agreement ...

Strangely, in the USA...

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.

So what do 'you guys' call it, if someone agrees to pay you for your time & expenses to do the work, instead of or in exchange for the the Rights to use your images afterwards?

In the context of US Copyright Law, “Work Made for Hire” has a specific meaning...

I know all of that - the question was: what do 'you guys' call it, i.e. the "Work Made for Hire" agreement that you mentioned, that isn't actually one because it does not fall into the “Work Made for Hire” category?

I would also love to see what you would ask a client to pay you for in both cases, i.e. I would love to see the two Quotes or the two Agreements that you would ask a client to sign beforehand - so I can actually see how different they both would look.

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