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CopyrightLawPhotography for Real EstateVideoVirtual Tour

That's my photo! A life lesson in copyrights.9421

immersivespaces private msg quote post Address this user
As some of you on here know, I am a strong proponent of copyright protection. As an image maker for over 20 years, I think I have literally seen it all at this point when it comes to clients and third parties trying to circumvent my rights as a photographer, and also my potential profits. That brings me to an interesting interaction with a past client of mine this week...

We routinely shoot high-end luxury properties for listings on the MLS as well as for editorial use in architectural and design magazines. When we shoot these properties, we typically give our realtor clients "unlimited usage for the term of the listing for the purpose of marketing the property for sale or lease." If they want to continue to use the image in marketing for their brokerage as it relates to that listing, we often include that at no extra charge.

Earlier this week I picked up a design magazine at the newsstand and to my surprise, the cover image was a photo I had taken for a broker a couple of years ago of this beautiful home. Inside was a great article about the 12,000 sq ft ocean-front home full of images that I had taken covering 8 pages and 12 images in total. The property had sold within a month of my photographing it, and as per the terms of our license, the usage granted for the use of those images expired with the listing. To my surprise, listed in the byline of the article, the photo credit was given to the broker for whom I had shot the photos. Of course, I immediately reached out to the broker, the magazine, and my attorney. The broker insisted that he owned the photos since he paid me to shoot the home and it was a "work for hire." (It wasn't.) He, in turn, sold the images to the magazine and claimed ownership of them.

The term "Work For Hire" should make every real estate photographer cringe. It is a legal agreement that transfers complete ownership of your images to the person or company that hires you to do the job. If you are ever offered one, you should be very cautious about signing it without negotiating a reasonable fee for the ownership of your images. In this case, I never signed such an agreement, and personally, I can only recall a few occasions when I have ever signed such an agreement. The longterm value of my photos as stock or resale for future listings is money left on the table with a work for hire agreement. More so, selling images to magazines have been a substantial boost to the profitability of my shoots over the years.

After much back and forth, the broker's attorney sent me a settlement agreement to compensate me for the use of my photos in the magazine. After a quick review, I immediately rejected the settlement because they tried to sneak in a cleverly worded work for hire statement and transfer of ownership of the images. They also had the audacity to put in a clause that would prevent me from shooting that property again for 10 years. At this point, I have realized that no reasonable agreement would be made and my attorney is drafting paperwork to file a federal copyright suit against the broker. In the course of my week, I have learned that there have been several photographers who have fallen into similar situations with this same broker. Sadly, most simply signed the settlement and moved on. They will have no such luck with me.

So, while this was fresh on my mind, I thought I would share some thoughts with you about copyrights as it pertains to property imaging professionals. These apply to photos, videos, and yes, virtual tours. These are just a few of the common questions I get when I do workshops about copyrights and licensing as it pertains to image makers here in the U.S. If you live in a different country, these may not apply to you equally. I am not an attorney, but I have been working commercial photography and imaging for many years and have a strong working knowledge of these things. Of course, you should consult with an attorney before adopting any agreements or signing anything with your clients that you do not fully understand.

Who owns your photographs?

According to the U.S. Copyright Office, if you pushed the button, you own the images... unless you sign the ownership of them over to a third party. Some providers of services (such as Matterport) have very "cloudy" terms with regard to copyrights and ownership of your work. If you work with these companies, be sure to review their terms carefully and understand fully what you own. It helps to consult an attorney.

Sell or license?

How much time and money have you put into perfecting your skills as an image maker? Your ability to create images is valuable and yet many photographers simply throw away money by failing to understand licensing. When you provide images to a client, you are not "selling" them the image, you are selling them the right to use the image in a way that you determine. This is called a license. A license simply says what they can use the images for, and for how long. In some cases, you can include a requirement for photo credit in the usage. For example, images that are going to be published in a magazine should include a credit to you as the photographer.

Do you have an agreement for shooting listing and/or editorial property images?

You should. Your agreement can be simple or very complex, the key is to make clear what your clients are hiring you for and what rights you are granting to them and retaining for yourself.

The National Association of Realtors provides realtors several boilerplate Listing Photo Sample Agreements on their website. They are TERRIBLE and you should never sign one unless you are handsomely compensated for it. As the service provider, you should consult with an attorney and draft your own listing agreements.

Do you register your photos with the U.S. Copyright Office?

Every month, I burn a disk of images I shot that month and register them with the U.S. Copyright Office. Photographers may register up to 750 photos with one application and one filing fee using the group registration option for photographs. The simple step of registration will ensure that as provided under U.S. copyright law, you, the copyright owner, will be entitled to recover the actual damages suffered as a result of the infringement, and any profits that the infringer made that is attributable to the infringement. So basically, a photographer could potentially be awarded the full commission on a real estate sale plus additional damages up to $150,000 per occurrence for each image. Without registration, being awarded these damages becomes much more difficult.

What are your images worth?

Probably more than you think. I have resold images taken years ago that have netted me many times over the initial fee I made when I shot them. You should consider all the potential uses of your images in the future when determining their value. Do you relicense images for listings? Are your images magazine quality with the potential to be used as editorial content? Could your images be used as stock? There are literally hundreds of ways to make money off your images long after the original use has passed.

Are you vigilant about defending your copyright?

It's important that you are, especially if you come to a situation where a lawsuit is warranted. If you have a history of just ignoring infringement, it could hurt you in a lawsuit. We are vigilant about immediately notifying any infringer of their actions, but we aren't militant about it. Our initial contact simply says, "Hey, we are glad you liked our images enough to use them in your listing, however, they are copyrighted and you will need to purchase a license to use them or remove them from your listing." More times than not, they will license the images. In the rare case where we need to push harder, we simply file an ethics complaint with the local realtor board. Most MLSs have a policy and related fines for using copyrighted images without permission. This includes the use of virtual tours which we have seen an increase of in recent years.

Have you visited copyright.gov?

Your rights as a photographer are protected under title 17 of the United States Code. It is worthwhile for every photographer to read through the law to gain a basic understanding of your rights. In addition to having the full text of title 17, copyright.gov has a wealth of information about copyrights and how to register your works.

Will defending your copyright hurt your business?

In my experience, defending my copyrights has actually increased my business. Sometimes our initial contact with an infringer leads to them becoming a long-term client. It's all about approach. In many cases, realtor's don't know about copyrights or perhaps a homeowner gave them photos and didn't tell them they didn't have rights to use them. Simply opening the dialog can create an opportunity to turn an infringer into a customer. At the end of the day, if you aren't able to resolve your copyright issue with someone, they probably aren't going to be someone you want to do business with anyway.

So there it is... I hope you found this information... well... informative. What kinds of copyright issues have you experienced? What lessons have you learned that would help other image makers better protect their rights?
Post 1 IP   flag post
ArchimedStudio private msg quote post Address this user
Great read! Thanks a lot.

Since January, we ran into 3 cases of realtors using our photos (taken for the previous listing agent).
Out of the 3, 1 cooperated and removed our photos. 1 was a total jack@$$, almost threatening us every which way possible - it took him 2 weeks to send a new photographer to take new pictures, and finally stopped using our photos. We didn't pursue any more actions with this guy as his negativity and awful vibes were draining.
The 3rd one started as the second one, but they finally agreed on paying the licensing fee we offered them.
2 and 3 were not aware that the photographer owns the copyrights. They all think that since they pay for the photos, they can do anything with them, including re-sell them to the next realtor if they want to (that's what happened in these 2 cases).

I really like your friendly message as a first contact. Maybe we were a little too by the book. We'll definitely try that next time. (and our lawyer is also preparing something a bit more scary and "official" on the side).

Thanks!
Matt
Post 2 IP   flag post
WGAN
Founder
DanSmigrod private msg quote post Address this user
@immersivespaces

Wow! Thanks for your thoughtful post about copyright.

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

Listing goes to another broker? Matterport?

Could you do a separate post about Zillow and copyright?

Hi All,

Some related WGAN Forum discussions:

PPA: Copyright Small Claims Action Alert
Matterport Terms of Service / Copyright Law
Why You Want to Retain the Copyright in MP
How do you add your copyright info to GSV?
Copyright Violation - What would you do?
Transfer Model Also Transfers Copyright?
Ever had your creative work stolen?

Enjoy the 3-day holiday weekend (in the US),

Dan
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GFHoge private msg quote post Address this user
Wow! I can't believe how timely this is. I just came from a Legal update meeting at my local Realtors Association as I am also a Florida Real Estate Broker. We discussed this very subject for quite some time. This business (photography) is very rewarding and as I spend more time learning, I appreciate the help from the veterans in the business.
The links are invaluable. Thank you all for your input as I had it on my to-do list to get a contract for my 3D 360 Homes business, now it is on the front burner as is now the registration with Copyright.
I am still looking for a good contract to start with as I am not a lawyer, but am familiar with pre-written contracts.

Thanks again, and have a great weekend with your family and friends.
Think of those who have sacrificed all.
Geof
Post 4 IP   flag post
mori private msg quote post Address this user
Does anyone know if Matterport has also changed the Legals and TOC´s with the pricing update or in general?

Besides in germany their legals are basically ineffective as the court in Berlin has made a judgement in 2016 on WhatsApp that the legals and TOC´s must be provided in the country language. Matterport is able to provide a lot translated marketing info to sell, but not the most important information - the sales conditions. I assume that this is also applying for some other european countries like France and Spain.

"Foreign language terms and conditions for consumers ineffective of the Data Protection Office | 21 Jun 2016 | blog

Many apps, online services & Co. from foreign providers also offer their services to users from Germany. However, it is not self-evident that also German-speaking terms and conditions are used. The Berlin Court of Appeal has now clarified: Terms and Conditions must be in German, as consumers are otherwise inadmissible disadvantage."

The above has been auto translated with Google. This is the original german resource:
https://www.datenschutzkanzlei.de/fremdsprachige-agb-unwirksam/

The legal file from the court of Berlin: https://www.vzbv.de/sites/default/files/whatsapp_kg_berlin_urteil.pdf

And their result: "The terms and conditions are thus ineffective for German consumers."

This makes MSP business even more difficult here as we can´t then refer on contracts to their legals or need to translate these in german.
Post 5 IP   flag post
WGAN
Founder
DanSmigrod private msg quote post Address this user
And, this from Photography For Real Estate Blog (29 May 2019) ...

What Do You Mean, “I Don’t OWN the Photos?!”

Dan
Post 6 IP   flag post
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