Sometimes real estate agents wonder why they don’t own the photos they hire me to take. “There wouldn’t be any photos if I didn’t hire you, no?”
As a real estate photographer, I periodically get questions from brokers about image copyright, image rights and licensing. It can be a confusing subject – who owns the photos after they are taken and what agents may do with them.
Let’s look at the common, but often confusing, terminology and and how it applies to real estate and selling homes.
What is Copyright?
In the most basic sense, copyright is the ownership of a digital or physical image. Under the Federal Copyright Act of 1976, whenever any literary or artistic work is created in the US, the copyright is automatically assigned to its creator. Creator of that work doesn’t need to register or file any paperwork to get the copyright. It’s automatic.
When you snap a photo on your phone of your kids, friends or their dog, you automatically own the copyright to those photos.
There are two exceptions to this rule. The first one is when a photographer is an employee of an organization, such as a photojournalist. The second exception is when a photographer does work-for-hire and signs a written agreement that explicitly states that work is to be considered a work made for hire and ownership of the copyright is transferred to the client.
Otherwise, the copyright stays with the person who presses the shutter button. If you hire a photographer and absolutely must own the photos, copyright transfer must be explicit and done in writing. But do you really need to own the photos to sell a house?
In most cases, no. Full copyright transfer generally costs much more money than image licensing and is almost never needed for real estate listings. So, how do you then know what you can and can’t do with the photos? A photo licensing agreement is that key document. It spells out exactly how images may be used. It needs to be in writing, and reviewed and agreed-upon by both parties before the first shoot.
Image licensing
When I start working with a new client, I ask her to read and review my Taku Homes Agreement. The agreement goes over a number of things, which I mentioned in a different post (see Photography Agreement… Should You Bother?). One of them is image use licensing. Here’s how my licensing agreement reads:
Photographer grants a non-exclusive license to use the above images to [Client’s Name]. License covers publication and display of images in the following media: the Internet and print, editorial, publicity, broadcast, and display throughout the world. License is valid in perpetuity. Images may be submitted for entry in contests. License is not transferable. Third-party usage, except as defined above, is not granted with this license.
My licensing agreement is an industry standard and boils down to one key message – the photos may be used by the client and her parent agency to promote the listing and her and her parent company’s brand in any way she chooses. However, the photos cannot be given or sold to a third party, such as stagers, architects, other real estate agents, etc. The license is non-exclusive, meaning I can use the photos to promote my work and license the photos to others.
Are you buying my photos?
“Wait,” you might ask, “how is it fair that the photographer can keep relicensing the photos that an agent has paid me to shoot?”
Think of it this way: when you “buy” a song from iTunes for 99¢, you can listen to the song as much as you want and keep it for as long as you want on any number of your devices. But do you actually own the song? No! If you read Apple’s agreement that you agreed to when signing up for iTunes, you will see that you are just licensing the use of the song, not actually buying it.
The difference is, for 99¢, you cannot use it commercially – as a soundtrack to your advertisement or on your website, for example. You can’t sell it to others. Technically, you can’t even give it to others for free. Your 99¢ license only lets you listen to the song.
The same principal applies to real estate photography as well. My ability to relicense the photos helps me and other real estate photographers keep our fees lower. While a two to four-hour commercial photo shoot with image copyright transfer can easily cost over two thousand dollars, image licensing allows us to keep real estate photography fees much lower.