A Very Informal Article on Copyright as it Applies to Real Estate Photography

Copyright gives authors and creators of original works the right to control those works. In the United States, the founding fathers considered copyright so important that it is the only right embodied in the body of the Constitution. All of the other rights are amendments to the original document starting with the first 10 known as The Bill of Rights.

Hand in hand with Copyright is the concept of licensing. Even if you aren’t coming from a advertising and marketing background and familiar with working in the creative community, you do know something about licensing. When you buy a CD or DVD, you aren’t buying ownership of the music or movie, you are buying the physical disc (usually with no guarantee) and a limited license for the contents. Most everybody knows that even if you own a CD, you aren’t allowed to copy the music and post it online or make a duplicate for a friend. You are also not allowed to use a song for a soundtrack on a video you post to YouTube. If you bought the music online via digital download, your license is even more restricted. While you can sell the CD you bought, give it away, trade it in for credit and bequeath it to somebody in your will, the terms of nearly all (probably all, but I haven’t read all the fine print in the world) online music stores state that the license dies when you do and you have no right to transfer the file to anybody else for a price or even for free. You should always read the fine print, but I’ll warn you that it’s usually depressing.

You didn’t think that when Microsoft used Start Me Up by the Rolling Stones they only paid $12.99, did you? It was a figure in the millions of dollars. The US Post Office doesn’t get to use Spiderman® in it’s advertising by buying one comic book. They both had to negotiate for a license to use those creations and the price would have been determined by such factors as the length of time of use, the media it would appear on, if there were products incorporating the creations being sold for a profit, where on Earth and a host of other factors.

Now that you know you have been licensing stuff for years, you should be comfortable with the fact that most photographs are typically not sold, but licensed. Photo licenses are not only priced according to the effort it takes to produce them but also the estimated value they will bring to the customer or the value society at large places on them. Even technically imperfect images sometimes rise to the status of iconic and therefore can be very valuable. A photograph of a home licensed to a local agent will be priced less than the same image licensed to a nation-wide real estate franchise. The larger company will get more value from the image by using it in all of their advertising media where the agent might only be looking to use the image for a few months of local advertising until the listing sells.

You don’t need to own the copyright to use an image, only a license for the use you want to put it to. Unfortunately, there are articles on real estate association websites that state you should always demand to be assigned the copyright. If you are working with a experienced professional photographer, the demand could be considered rude. Experienced photographers prefer to retain the copyrights on their images to take advantage of opportunities to license those images for additional income. The realities of listing photography is that the price the market will bear isn’t as profitable as other genres, so being able to bring in more income with secondary licensing is key to being able to service the market at an acceptable price. An agent/broker will want to make sure they are getting a license to use the images in marketing materials they plan on using for the length of time they need. Usually the length of the listing contract or the contract time and one renewal. Additionally, you will want to be able to use the photos in your own portfolio of sold properties to display the excellence of your marketing materials. You can always negotiate for an expanded license if you really need it.

The license granted to an agent will preclude reselling or giving away the images they license, but any good photographer will pay a commission if an agent refers a customer. It is also possible for an agent to get images of a listing at no cost by referring several more photography customers from one home such as, the cabinet builder, the landscaping company, the appliance store, the builder, the architect, etc. The photographer will negotiate a license with each one of these additional customers directly and pay a commission (if they’re smart) based on the sale. The photos for each of the additional customers will be composed for their needs, but once on site, it doesn’t take much time to shoot the additional images.

When you take your own pictures, you own the copyright. As soon as the file is written to memory, a copyright is established. If you hand me your camera and I take the picture, I own the copyright. Ownership of the tools has no bearing on the copyright unless the work is being performed by an employee whose regular duties include taking pictures. Copyright can also be assigned at creation if the photographer is working under a signed Work-For-Hire (WFH) contract. Work for hire contracts are often used in situations where a photographer is the “second shooter” at a wedding working for the primary photographer. They are also used with “Set Photographers” on a movie set. The contracts may or may not allow the photographer the use of the photos in their own portfolios and could have a range of other allowances and restrictions. Most independent photographers will not work under a WFH contract or will charge a much higher fee for the work. Second shooters are often apprentices learning the craft with the expectation of advancing to a more senior and higher paying position or leaving to start their own company.

While you own the copyright as soon as you click the shutter, your remedies for going after somebody that has stolen your images are very limited. The best you reasonably can do without spending lots of money is send a DMCA notice to a web host if the image is found online or ask nicely for them to stop. There could be repercussions on the infringer beyond what you might collect from them. Real estate associations may fine or suspend a member if they receive official notices of copyright infringement. The scene changes if the images are registered with the copyright office as many experienced photographers do. Remedies for infringement include attorney’s fees which means that a photographer’s attorney may work on a contingency basis for clear cut cases (read: no out of pocket expense for the photographer). If a law suit is filed, the minimum award is over $10,000 and could go up to $150,000 (very rare) or higher in exceptionally rare cases plus those attorneys fees and expenses. It’s not common for infringement cases to see the inside of a courtroom. Settlements before trial are much more common. The easiest way to avoid copyright issues is to never use photos given to you unless you have a clear license for them and to make sure your team knows this as well. Just because it’s on the internet doesn’t mean it’s free. The term for a copyright is the life of the creator plus 70 years (120 years from creation for a corporation). Any modern photograph you would likely want to use is copyrighted.

You might now ask if there is any situation where you should own the copyright. Yes, there is. If you have commissioned a designer to create a logo or artwork for your business, you want to own that. A staff photo taken at your office is a good example of where you would want at the very least a “perpetual” (non-expiring) license. There are occasions where an assignment of copyright is expected as part of the transaction or may be requested. If I think of one that would pertain to the real estate industry at the listing agent level, I’ll update this post. I know that some nationwide brands have been trying to get photographers to sign contracts that effectively give away their copyrights.  There was screaming in the real estate photographer’s forums online, I will tell you. Nearly all of the best photographers refused to sign and as the hoorah has settled down, I think the local offices have bucked the directive so they can continue using the photographers that have been giving them good service and measure. The cover story was that the agreement was needed for insurance purposes. It wasn’t.

The usual disclaimer:

None of the above is legal advice. I hired thousands of monkeys and a truck load of second hand typewriters and these are the paragraphs with good spelling that seemed to fit together. The process is working well. See other primate induced meanderings on this site for additional light entertainment. Always, always, always talk with an attorney that has experience in the field for real, true advice. If you are having chest pains, go to a hospital, not webmd.com. If you have the flu, stay home and have some chicken soup, antibiotics won’t help. You should have got the flu shot when you were at the pharmacy.

The horses mouth: www.copyright.gov

Getty Images has put together a post on copyright issues that can be found at this URL: http://copyrightenforcementprogram.com/copyright-101-copyright-and-content-licensing/

©2014 Kenneth Brown. All rights reserved.