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Listing goes to another broker? Matterport?6793

WGAN Forum Founder DanSmigrod private msg quote post Address this user
Hi All,

Has this happened to you? How did you handle it?

I received this email from our client this morning (17 April 2018):

[redacted] Unfortunately, I think that the owner of [redacted] is changing brokers. I want to make sure that the work that you all did for me is my property. I’m not willing to allow the other broker to get our pictures, walk through, website, etc without buying it from me. Please let me know if any calls you to get any of this info.

Below is an excerpt from my reply.

Again would you have handled differently?

Best,

Dan

---


Good morning, [redacted] …

Wish it was better news …

[redacted]

If the listing goes to another broker, We Get Around will shoot your next listing at 50 percent off, [redacted]

We licensed you the use of our imaging services - We Get Around intellectual property - to market [redacted] and to help you win more and bigger premium listings.

If you like, we can do a 70/30 split on re-licensing the imagery to other broker. 70 percent to you and 30 percent to We Get Around. For clarification, the agent or broker or homeowner would pay We Get Around and we would pay you 70 percent. You may set the re-license pricing at either what you paid us (see attached invoice) or higher.

We will honor your request to not license the content without your permission. And, we will honor your request to let you know if we get any calls/emails (which we will direct to you).

Also, please let us know if/when you would like us to disable the 3D Tour and [redacted] property website.

[redacted], did you want to chat by phone today? My iPhone is: [redacted].

----
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MarkCantu private msg quote post Address this user
I am not too sure, if I totally understand the situation. In Real Estate, it is taught, "He/She who calls, pays." If work is done for the Broker/Brokerage, then the tour is owned by the company. However, if the tour is ordered and paid for by the Realtor, then it is owned by the Realtor. As we all know, a Realtor is an independent contractor, not an employee. I would find it very difficult to tell the Realtor who ordered and paid for the tour, that I could not transfer the tour to the other company. One guy's opinion.
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WGAN Forum Founder DanSmigrod private msg quote post Address this user
@MarkCantu

Ah!

Here is a short explanation of photography licensing ...

I am not a lawyer. I do not give legal advice.

My understanding is that unless you specifically transfer the copyright, your client actually has licensed the imagery from you. They do not have the right to license or re-sell your work, unless you specifically granted that!

Dan
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immersivespaces private msg quote post Address this user
We run into this often...

Photos, virtual tours, and floor plans are our copyright, we license to the end user (agent or broker) exclusively on a per listing basis, for the life of that active listing (a single MLS number). Should that listing be expired, canceled or closed, the new listing agent has the option to license the assets for their use (under a new MLS number). We usually offer a 10-20% discount on the license for the new listing agent. We also allow the original listing agent to use the assets for their own marketing and portfolios beyond the license period as a courtesy, but we do not pay them for any income we derive from resales.

This model has worked well for us, especially for the higher-end real estate we deal with. We have seen assets resell 2 or 3 more times over the initial contract.
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MarkCantu private msg quote post Address this user
@DanSmigrod , you are totally right. I just think in real day use, having a good working relationship with a Realtor who has been using your services, I would probably transfer. It wouldn't hurt to remind the Realtor in a friendly way about photographic licensing.

I see from @immersivespaces that there is another route. Now I know why I am so poor! The immersivespaces concept seems like a good idea. Realtors can be fickle, and since they are in the habit of negotiating all the time, they may see it differently. I believe that having a good working relationship with a Realtor, especially one that refers other Realtors to you is so valuable.

This new concept presented here has given me food for thought.
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WGAN Forum Founder DanSmigrod private msg quote post Address this user
@MarkCantu

I like how Quote:
Originally Posted by immersivespaces
We run into this often...

Photos, virtual tours, and floor plans are our copyright, we license to the end user (agent or broker) exclusively on a per listing basis, for the life of that active listing (a single MLS number). Should that listing be expired, canceled or closed, the new listing agent has the option to license the assets for their use (under a new MLS number). We usually offer a 10-20% discount on the license for the new listing agent. We also allow the original listing agent to use the assets for their own marketing and portfolios beyond the license period as a courtesy, but we do not pay them for any income we derive from resales.

This model has worked well for us, especially for the higher-end real estate we deal with. We have seen assets resell 2 or 3 more times over the initial contract.


@immersivespaces handles this better than how I handle this

While I made two - what I believe are generous offers to help retain our client:

-- if he loses the listing, we will shoot the next listing for this client at 50 percent off
-- we will spit the revenue 70/30 in favor of the broker.

... We Get Around could do a (much) better job explaining licensing to clients upfront, it's an edge case for us. Hopefully, our clients feels good about the two concessions above.

Best,

Dan

P.S. Are you saving your Matterport Spaces etc for re-licensing?
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jfrankcole private msg quote post Address this user
I'm a Realtor and a Matterport photographer. Usually with marketing photos, if a listing has changed hands (meaning it is being listed by a new agent for whatever reason) the previous listing agent will sometimes sell the photos that they paid for to the new listing agent. Personally, I like this option because it is simple. The last thing I want to do in a busy day is get into a heated back and forth over a few hundred dollars. So that is probably what I would suggest as a first option.
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immersivespaces private msg quote post Address this user
@jfrankcole I would urge extreme caution in that model. That may work for you as the realtor and photographer, however, from a photography business standpoint, this is a terrible, terrible idea... and likely a violation of your MLS board rules. Most MLS providers strictly forbid distribution of intellectual property without permission from the copyright holder. (It's a $5000 fine on most of the MLS boards here.) Not to mention the fact that it violates copyright law as willful infringement and entitles the photographer to damages up to $150,000 per work if they registered the copyright (which they should).

The photographer who shot the photos actually own the copyrights to them, and should receive any proceeds from the sale of their work. The realtor has simply purchased a non-transferable license to use them for their listing. Unless the photographer agreed to allow the agent resale rights (which they should never, ever do), the agent would also be committing a federal copyright violation for illegal distribution, as would the new agent publishing the photos.

As a realtor, you'll likely make several hundred, if not thousands of dollars off a listing, so a few hundred dollars may not seem significant in the grand scheme of things. But as a real estate photographer, our livelihood is made up of those few hundred dollar jobs. When a realtor tries to resell that work, they are literally stealing from the photographer. It's bad practice, unprofessional, and illegal.
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immersivespaces private msg quote post Address this user
@DanSmigrod Yes, we save all our Matterport spaces for potential resale. We also get a property release from the homeowner that owned the property at the time it was captured as an extra layer of protection.
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WGAN Forum Founder DanSmigrod private msg quote post Address this user
@MarkCantu
@jfrankcole
@immersivespaces

Wish I had your collective insight before I had a follow-up (train reck) conversation with our (likely x-Client).

I made a mess of things. Lots of good learning from my self-inflicted kerfuffle.

@jfrankcole

Would it change your thinking knowing that the original job was $2,833?

As a result of my phone conversation yesterday (18 April 2018):

✓ our likely x-client is unhappy
✓ I am unhappy
✓ the agent that the new listing is likely happy, but likely not to use us on future projects

So, what happened in that call?

✓ Client felt (strongly) that he owned our intellectual property
✓ I felt that We Get Around owned the intellectual property
✓ He felt 70/30 (70 to him was not fair)
✓ The paperwork is silent on ownership. My understanding when the paperwork is silence on ownership, the photographer still owns the copyright
✓ While we typically include one year of hosting, in this case, I had included "Monthly Hosting Year 2 Courtesy No Charge to help you win more and bigger listings"
✓ When he seemed to accept the 70/30 (at the same or higher price), he wanted to do the deal with the other agent directly and pay me. I said, he did not have the right to license or sell our intellectual property and that whatever price he arrived at with the other agent, that the other agent would need to pay my company and that I would remit 70 percent back to him.
✓ That made him angry and then he started to talk about the other agent had another Matterport Pro that would do the project for less
✓ (He did say he loved working with us and everything - until this conversation - was white-glove treatment (my words to sum-up his discussion)
✓ Since he had another 12 months of no charge hosting, I decided that I would allow him to substitute the new agent (for clarification, a competitor of his)
✓ While that calmed us both down, I'm not thrilled with this
✓ I could imagine that he somehow sold our work to the new agent (get paid at closing) and we will not see any of that money

I will write an additional post on lessons learned.

I am will then ask for your thoughts.

Dan
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WGAN Forum Founder DanSmigrod private msg quote post Address this user
Hi All,

The irony of the above, is that I was just reading a book on one of my favorite topics, surprising and delighting clients.

Obviously, this did not happen.

Going forward, I need to make it clear to clients that the pricing is based on:

✓ licensing the content
✓ for a specific purpose
✓ for a specific length of time

How would you have responded to this email?

Quote:
Originally Posted by @DanSmigrod
[redacted] Unfortunately, I think that the owner of [redacted] is changing brokers. I want to make sure that the work that you all did for me is my property. I’m not willing to allow the other broker to get our pictures, walk through, website, etc without buying it from me. Please let me know if any calls you to get any of this info.


What will you do differently, having read this discussion?

Dan
Post 11 IP   flag post
WGAN Forum Founder DanSmigrod private msg quote post Address this user
Hi All,

BTW, while I wrote the above, this email arrived from the original broker:

Thanks Dan. I’ll be in touch with you in a day or so about a possible Land deal. We would need to target Chinese investors specifically [I had shared this on Saturday to try to help him renew the exclusive on his listing]. The adjacent [redacted] acres has already been sold to Asian investors, but I own the key [redacted] acres entrance to the master planned community. It may require you coming out here and lets taking a preliminary look at the property together to see what you think we could do with it in way of marketing. I would ultimately want to yield [redacted] per acre by selling [redacted] shares to investors. That is what they did with the Neighboring Land.

Thanks

[Redacted]

--

I was surprised that he expressed interest in doing another project with us.

How would you reply?

Da
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jasondavidpage private msg quote post Address this user
How do you not have a contract that outlines the licensing agreement with your clients? I include a link on EVERY invoice that goes out as well as my emails that include photo and tour link information with my "Real Estate Photography Terms of Service" highlighted so that agents can't claim they didn't know.


In 8 years of photographing properties, it wasn't until this year that an agent who was fired by their client (the seller) was angry because I relicensed the photos to the new agent. The first agent filed a complaint with the local board to punish/fine the new agent and ended up losing the complaint because the board looked at my licensing and agreed that I have every right to re-license images if the new agent feels that the photos still materially represent the property.
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jasondavidpage private msg quote post Address this user
@DanSmigrod it looks like he might have cooled off but I'd be cautious. Any time my clients show their crazy side, I really sit down and determine whether it's worth my time to deal with it. I fired one of our area's top producing clients because a) they were cheap and b) they took up ALL my time. Can't work like that.
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WGAN Forum Founder DanSmigrod private msg quote post Address this user
@jasondavidpage

My bad judgement likely cost me $2,833 in re-licensing and risk loosing a (very) good client.

I would encourage WGAN Members to follow your lead - and @immersivespaces - to maximize value.

While we just scratched the surface on re-licensing, I could imagine some Community Members have re-licensed to the home seller (vanity) and the home buyer.

I actually do not have licensing terms and conditions. Our point of view is that if the client is not happy, no charge, and we move on. We do not even send an invoice until we have delivered everything. We trust that if we do right, our clients will do right, and pay us promptly (and refer us). Anyway, that's been my thinking the last four years. Looks like there is a lot of room for improvement by We Get Around Atlanta.

I replied to our client: "Good morning, [name redacted] … Yes. I am happy to look at the property together … Best, Dan"

I did give a lot of thought to not doing another project with this client and decided the misunderstanding was my fault: not our client. While I may be right about ownership of our intellectual property, I could understand that without me managing his expectations, he felt that he owned "our" work and could resell it to the next agent.

I am thankful that we can put this chapter behind us and move forward on a new (and exciting) project (that will likely include Capture Google Street View via Car (which will be a great learning experience to share with WGAN Forum Members.

Hi All,

How might the above discussion affect your Matterport Service Provider business? Changes? No changes?

Best,

Dan
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WGAN Forum Founder DanSmigrod private msg quote post Address this user
Hi All,

What have you learned from my mistakes?

Best,

Dan
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VTLV private msg quote post Address this user
I need to re read my terms link on website to better reflect copyright. I wrote up the copyright agreement that needs to go with every invoice.

However, most agents could care less about previous agent photos and tend to want new. As if the listing looks old using previous photos or tour. Which must be the reason why the home didn’t sell according to their listing presentation. Lol.
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