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Photographers and Copyrights
Photographers and Copyrights…
Real Estate Photography
This article is written specifically with regard to real estate photography, but the same copyright principals can be applied to all forms of photography.
A client recently inquired about the ownership of photography taken on their behalf. Their thinking was that if they pay for the photography, then they should “own” the photos and can “sell” them at their discretion. The example is a situation in which a realtor (A) loses a listing to another realtor (B) who wishes to reuse the photos. Realtor A feels that they should be able sell the photos to Realtor B. They don’t think that the photographer should get paid again for the same photos, and they want to recoup the money that they initially spent on the photography. With this logic, Realtor B, in the same situation, could also “resell” the photos to another realtor, and so on. Although at first this may be understandable it is wrong.
This is a good question and worthwhile discussion. It may seem odd, but when an individual or company retains a photographer to take photos, that party does not own the photos – the photographer does. You are essentially commissioning the photography and purchasing the right, or license to use the resulting photos as agreed. The photographer (“artist”) owns the copyrights to all photos, and this copyright is protected the Federal Copyright Act of 1976. What the photographer does with the photos and how they are handled is up to his or her discretion, or as described in a mutually accepted agreement. A professional photographer rarely gives up copyrights or ownership of photos unless that is in specified in the terms of the agreement, and in those cases the photographer generally charges a premium to give up his/her ownership. You would be very hard-pressed to find a professional photographer willing to do so. I handle my photos in much the same way, and in every notification of “Your Photos are Ready” for realtors I include the following statement:
“***Important Licensing Information***
These photos are owned and copyrighted by JMAUROPHOTO, LLC. They are licensed only to you and specifically for the purpose of marketing your home listing, including print and on-line publication (MLS, FMLS, etc.). These photos may not be used or distributed to any third party, including the homeowner for any purpose without express permission by JMAUROPHOTO, LLC.”
When a photographer is commissioned for photography, the client is given the rights, or license to use the photos for the specified purpose and often for a specified period of time. Some RE photographers go as far as to limit the amount of time the realtor can use the photos, and if that time expires before the home is sold, they charge a relicensing fee. Additionally, some photographers are very specific about how the photos can and cannot be used.
In my experience, it is a rare occurrence that I discover that another realtor using photographs that I have taken for a specific client. It has only happened twice that I know of, and in one case the realtor actually made screen captures and used them in her listing. This effectively amounts to theft. In the other case, when I found that my photos had been given to a second realtor and were being used without permission, we had a very nice conversation and I ended up getting that realtor as a client.
According to copyright laws, unless otherwise agreed, photos can absolutely not be resold, or the rights to use them transferred without the permission of the lawful owner (the photographer). The easiest way to avoid any controversy is to never give or resell photos to another realtor or agency. If the other realtor is going to pay for photos, then they may as well hire a photographer.
There are agencies, such as the PPA (Profession Photographers Association) who fight for the rights of photographers to protect their copyrights and theft of their photos (considered art). Any photographer who simply relinquishes or gives up their rights and ownership of their photography without charging extra to do so is not doing themselves or the professional photographic community any favors.
Disclaimer: This is not a legal interpretation of photographic copyright law, but only a summary in layman’s terms.
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