clicking on photo

© Federica Bondoni

Wait! That’s My Listing Photo!

In the world of real estate photography, image quality isn’t the only thing that counts. To ensure you’re doing right by your clients and your company, you need to understand and follow best practices in real estate photography law and technology.

September
2019

It’s not unusual for Shannon Hall to be scrolling through her social media news feeds and find agents from other firms sharing listing photos that belong to her agents. “I find images weekly that agents share on Facebook or Instagram from their personal and business pages,” says Hall, broker-owner of Dwellings by Rudy & Hall, outside of Detroit. “A lot of them don’t realize they can’t use images they don’t own.”

When she spots a photo that she believes an agent doesn’t have the rights or license to use, she makes a call. She explains the issue and asks them to remove the photo from their page. If she can’t get through, or if the agent won’t cooperate, she contacts the broker. But even outreach to broker-owners can be an exercise in frustration if they aren’t vigilant about monitoring misuses or taking action, says Hall. “Most brokers are [not paying attention to] what their agents do on social media.”

Knowing how important attractive, high-quality photography is for marketing properties, real estate pros may spend considerable time on obtaining great listing photos but overlook some critical legal aspects, including who owns the photos and videos and who has the right to give others permission to use these images or videos. But ignoring questions of legal ownership is wrong and poses serious legal risks.

Real estate is in a similar state as the publishing and music industries of the early 2000s, when the internet and the proliferation of digital content forced those businesses to readdress intellectual property laws and licensing as illegal music downloads escalated. Now real estate photographers are grappling with similar copyright and permissions issues related to the unchecked use of images showing up on websites and social media feeds.

“Photographs get lumped in with listing data, but they’re not listing data; they’re intellectual property."

“Photographs get lumped in with listing data, but they’re not listing data; they’re intellectual property, and there are laws that govern how they’re used,” says Brian Balduf, CEO of VHT Studios, the nation’s largest real estate photography service and a leader in the burgeoning movement to crack down on misuses. Copyright statutes say that the person who creates a work owns it and can transfer rights only through writing. “If you don’t have something in writing from your photographer or photography partner, assume you don’t have rights,” Balduf says.

The number one step real estate professionals can take to ensure they aren’t violating image copyrights is to read and follow the licensing agreement provided by the photographer, says Chloe Hecht, senior counsel at the National Association of REALTORS®. In fact, practitioners should review the agreement before hiring a photographer to shoot a listing. Some photography companies put the licensing information in the terms of use statement on their website. But brokers and agents can consider using one of several listing photo agreements offered at nar.realtor that may fit the needs of the photographer and the brokerage.

“It’s incredibly important to make sure you know what you’re getting, what rights you have, and how third parties like MLSs real estate portals, and websites can use the photos,” says Hecht. “We recommend that practitioners try to obtain ownership of the photos, but if that’s not possible, then we recommend a broad license to use the photos.” Members can obtain ownership through an assignment agreement or a “work made for hire” agreement.

Copyright law not only protects the rights to images, it also protects the original work from being substantially altered, which can be construed as misrepresentation.

An example is an assignment agreement where the photographer assigns all rights, title, and interest in the photographs to the broker. There’s also an exclusive license agreement, where the photographer retains ownership of the images but grants the broker or agent an exclusive license (meaning, they won’t license the image to anyone else) to display and distribute the photos in connection with the listing or real estate business.

If you want to share a listing photo that’s not your own, call or send a message to the listing agent. Ask if the agent owns the image or has a license that allows them to sublicense the image. Request permission—which should be granted in writing—to share the image; under an exclusive license from the photographer, a listing agent can typically grant permission or sublicense listing photos. If you find your images being used without permission, as Hall has seen online, you can always consult an attorney and discuss enforcement options, Hecht says.

Amoura Productions, a real estate photography and video services company based in Austin, Texas, for example, grants its clients an exclusive license with full marketing usage rights to photos and videos, with no time limit or restrictions. It does retain rights to the images to use for its own marketing purposes. Amoura doesn’t resell or provide licenses to other parties for listing images or videos, and an agent is allowed to sell or grant use of the media to other parties, such as other agents, builders, or contractors. The agents just have to let Amoura Productions know in writing that they’re granting permission, though Amoura may charge a fee if they’re asked to send the image files to the third party.

How Brokers Address Photography

Hall, who oversees about 60 agents, characterizes her photography policy as “strict.” She requires agents to use professional photographers for every property and offers them a list of “trusted” vendors. “We follow the law and all guidelines,” she says. “If agents don’t like it, they can work somewhere else.”

Evelyn Rosling, who heads the Rosling Real Estate Group at Cascade Sotheby’s International Realty in Portland, Ore., with her husband, Steve, agrees that professional images are a necessity today—taking photos yourself with a smartphone is unacceptable. Her team follows best practices, such as getting fresh photos when they obtain expired listings. The only exception she’s made is with drone imagery of a property; in those situations, her company offers to pay the agent or photographer for the footage along with a license or sublicense.

Though Rosling has seen her listing photos show up on other websites in the past and heard about similar misuses from other agents, she’s seeing less of that lately. “Perhaps the business is a little more professional and standards are elevated,” she says.

Still, other issues related to professionalism and photography continue to arise. Nick Solis, broker-owner of One80 Realty in Brentwood, Calif., faced a two-pronged problem at his company—some agents were cutting corners by using their phones to take listing photos that were subpar and, even more frustrating, engaging “flaky” photographers who would cancel shoots at the last minute. Three years ago, a photographer Solis hired to take pictures of his own home bailed the day of the shoot, and another vendor who agreed to come the next day was a no-show as well. He knew he needed a new approach.

Solis brought the creative process in-house. He hired a full-time staff person to handle photography and spent $150,000 on creating a fully equipped marketing department. The investment has given his company the ability to do both 3-D Matterport and drone photography and to create six- to 10-page brochures and a custom website for each property. Staff members extract still images from their 360-degree photos and send the files to photo editing company BoxBrownie (a member of NAR’s Reach technology accelerator in 2018) for help with touchups or virtual staging. Agents pay $500 for the services once the sale closes.

“We are a very brand-forward company that focuses on using marketing to drive traffic for our listings,” he says. “We do this because we want our top producers and our newbies without a budget to have the same incredible tools to work with.”

Photo Liability Gray Areas

Even with the best intentions for securing correct photo licensing, copyrights can still be called into question, so it pays to think ahead. For instance, say an independent agent orders images to be taken by a professional photographer while selling homes for a builder, but later, the agent moves on to another firm, parting ways with the company. Who owns the rights to the media, the agent or the builder? It might not be clear, especially if it’s not spelled out in the written agreement.

Copyright law not only protects the rights to images, it also protects the original work from being substantially altered, which can be construed as misrepresentation. Agents who substantially modify an image that they’ve paid for beyond minimal cropping or resizing potentially can be held liable for copyright infringement. Adding grass to a photo of a barren yard or cleaning up a blemished wall, for example, are common requests, which may also violate MLS rules or Article 12 of the REALTORS® Code of Ethics, which says: “REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations.” And as NAR’s Hecht warns, “If an agent is making edits, they must be cautious not to change significant elements of the house as it appears in real life,” says Hecht. By contrast, editing out a garbage can is probably fine, as is adding a twilight effect to the sky, because those elements are not part of the property.

Many brokers and agents are surprised when photographers like Amoura Productions President Chuck Amoura won’t make significant changes to a photo. “Being asked to modify other people’s photos or remove property elements in one of our photos is a misrepresentation issue and a legal issue,” he says.

Another issue that can be troublesome: how some brokerages use listing photos commissioned by their agents. Amoura says his company shot listing photos for an agent based in Houston. He was surprised when she called complaining about a slideshow of the images she found online, which only included the contact information to her brokerage but didn’t mention her name or phone number. The agent assumed that the photography company had erred, but after Amoura did some digging, he found that her brokerage was creating slideshows with their agents’ listing photos and putting only the company name and number on them. “Agents need to ask questions,” Amoura says. “Know what your brokerage does with your listing photos. You have a brokerage contract with them, and you might be giving them usage rights.”

Photographers Get Organized

Just over a year ago, about a dozen owners of large real estate photography companies nationwide gathered in Washington, D.C., to consider a more organized approach to educating the industry on best practices and protecting intellectual property. The Association of Real Estate Photographers was born in September 2018, led by Executive Director Paul Rodman, former owner of Tourbuzz, a virtual tour system for pro photographers. Membership has already hit 2,500 individual photographers. The cost: $185 per year for a sole proprietor photographer.

Rodman compares real estate photography to the home inspection business. “In the early ’90s, the inspector was a handyman with a yellow notepad. Now, everyone knows there are much stricter standards, and it’s a basic part of the homebuying and selling process. Photography is going to get to that level,” says Rodman.

Copyright infringement is at the top of AREP’s agenda, with plans to advocate on behalf of industry photographers. The association will promote agreements allowing agents to use the photos for the life of the listing and for additional non-public facing industry purposes, such as CMAs and appraisals.

VHT Studios’ Balduf helped pull together the initial AREP participants based on a recognition that effective advocacy requires a more coordinated, strategic effort. Education is key, and it’s not easy because it’s a really big industry with a diverse group of participants,” says Balduf, who’s also a board member.

VHT has been embroiled in a four-year legal battle with Zillow over use of thousands of the company’s photographs in sold and expired listings and in its former home design and improvement Zillow Digs blog (now called Porchlight). VHT claims that Zillow’s use of the images oversteps the scope of the licenses that were granted to real estate professionals and MLSs (some of which expired after the sale of the property). VHT was originally awarded $8.3 million in damages at the conclusion of a jury trial, but that was reduced to $4 million in 2017. Most recently, in March 2019, the 9th U.S. Circuit Court ruled in an appeal that because third parties (real estate pros) uploaded the images to the website and indicated that the licenses were evergreen, Zillow is not liable for those copyright infringements. However, Zillow is liable for the listing images taken by VHT that Zillow tagged for use and search purposes on its blog, according to the court. Revised monetary damages are still to be decided.

“The lawsuit brought to light the need for our industry to have a voice. There are many big players in real estate and so much going on,” says Balduf. Most real estate photography companies do not have the muscle or deep financial pockets to fight flagrant violators. The majority are one- to three-person shops, Rodman points out, and the owners wear many hats, much like agents. They’re marketing and prospecting for business, meeting clients, shooting listings, and editing image files.

The association’s intent is to establish industry standards on the licensing of photographs with large franchise companies, brokerages, and MLSs, as well as address the misuse of photos by third parties. “Real estate photography isn’t a hobby; it’s something photographers do every day. They get up at dawn to get the early light, spend all day shooting, then process the images to get back to agents within 24 hours,” says Rodman. “The demand and grind are a lot. They need support.”

MLSs and Copyright Issues

Alexander Stross, a Texas-based real estate photographer and broker, is unusually proactive in his search for copyright violations. He’s sued several corporations and media entities for copyright infringement, including “The Today Show” for sharing one of his images on the air and on social media without permission or attribution.

In 2016, Stross sued Redfin Corp. for allegedly displaying more than 1,800 of his listing photos, which exceeded the time frame of the image licenses he had granted. However, the Texas federal court dismissed the suit on a technicality, noting that Stross should have notified the Austin Board of REALTORS® MLS about the violations before filing the claim.

Clear communications among parties, backed by written agreements, will go a long way toward eliminating problems with photo use.

According to NAR’s legal case summary on the matter, ABoR’s MLS rules say that a member who uploads images grants the MLS a license to use the listing content “for any purpose consistent with the facilitation of the sale, lease, and valuation of property,” and that a participant must “promptly” notify the MLS if he or she believes another participant is violating the rules. Redfin was also likely shielded by the Digital Millennium Copyright Act, a federal law protecting website owners that allows third-party content to be posted without liability.

Shortly after the case’s dismissal, ABoR hosted a forum in March 2017 about best practices in photography. NAR’s senior counsel Hecht participated and shared NAR’s photo licensing agreements. That was the start of a member education campaign to protect against future lawsuits, says Stan Martin, ABoR’s chief operating officer. Then ABoR created the Verified MLS Photography Partner Program, which reinforces for members the necessity of having proper rights to images.

ABoR is also inviting local photographers to become “verified partners” where they provide the MLS with a license to use the photos. It’s not an exclusive license and the photographer retains the rights to their images, but it adds a layer of protection for the MLS, its members who enter the listings, and any websites displaying listings via an MLS IDX feed.

ABoR’s program was influenced by NorthstarMLS in Minnesota, Martin says, another group committed to “good copyright hygiene,” according to its president and CEO, John Mosey. The issues came to light for NorthstarMLS when the group sued NeighborCity.com (owned by American Home Realty Network) in 2013 for copyright violation of listing images. The MLS accused the company of scraping listing data and images from other sites without permission. NeighborCity.com countersued NorthstarMLS, along with Metropolitan Regional Information Systems Inc. in the Washington, D.C., area, raising antitrust allegations concerning the rules set up by the MLSs to protect listing data. The case was settled in 2014; however, it kept the safeguard in place that third parties can’t use copyrighted MLS information without authorization.

Since then, NorthstarMLS has worked with VHT Studios and other companies to acknowledge the ownership of the images taken by photographers on behalf of brokers and agents and agreed that no rights were granted beyond a license to use the images for marketing the property listed for sale, Mosey says.

“MLSs don’t want to be brought into disputes between professional photographers and third parties who misappropriate images without compensating the owners,” he adds. But MLSs can help communicate the actual ownership status to all who access the listings “so that any infringement becomes willful, which is very expensive.”

Last year a photographer who was a member of the California Regional MLS sued Zillow over copyright infringements, says Art Carter, the CEO of CRMLS. The MLS’s  program is similar to ABoR’s, but goes further, asking partner photographers to agree to license to the MLS all listing photos they’ve taken, even those shot prior to the agreement and already uploaded into the MLS. Photographers who sign the agreement are allowed to directly upload their photos into specific listings that an agent has assigned to them. The photos can’t be sold to other agents or services; they’re used only on the MLS and its syndication stream to other platforms with the listing data. To be sure, photographers can still use their own contracts or agreements with agents. “It’s still up to the brokerage community to adhere to the licenses they sign,” Carter says. “Not all photographers are going to agree to or sign on to the CRMLS system.”

Rodman applauds MLSs for stepping up and writing their own terms of service with their members, but questions why MLSs need rights to listing photos for all time. “We want to work closely with brokers to understand why they’re letting MLSs have the photos in perpetuity,” Rodman says. “That’s where the misunderstandings come into play.” The photographers association’s stance is that licenses should limit the use of images by MLS distribution partners to active listings only.

Clear communications among parties, backed by written agreements, will go a long way toward eliminating problems with photo use. Photographers, brokers, agents, and MLSs have both common and competing interests that need to be spelled out to ensure that all are on board with who owns real estate images, who can use them, and for what purposes.

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