Last Updated on January 17, 2021 by Jose Barrios
Full disclaimer, I’m not an attorney, nor is this legal advice. If you think your rights as a copyright holder have been infringed upon, or just have legal questions, seek the advice of a legal professional that is licensed in your state or country, as laws differ from one place to another.
The short answer is whoever took the photo unless they signed away their rights in a written agreement. This means you the photographer own the images, not the real estate agent, not the homeowner, and not the MLS unless you signed an agreement with one of them transferring the rights to your images.
Section 204 of the Copyright Act states that the only way copyright can be transferred is for the copyright owner to sign an “instrument of conveyance”.
Quick section links:
- Four common questions about real estate photos
- Have a written agreement
- Do not use real estate agent provided photography agreements
- Intended use changes the price of your photos
Four common questions about real estate photos:
1. Does the MLS have copyright over my photos?
No, they don’t, that is total BS, they just have the right to display them in a limited capacity, i.e. they can only use the photos for the purpose of the sale and promotion of that particular property.
Your images cannot be used in promotions, advertisements, or anything else that is not related to the sale of that property at that moment in time.
2. Can the real estate agent use the images for other media besides the MLS?
As long as the images are used for the express purpose of marketing the property, they are OK, especially in today’s digital world where photos are posted on the MLS, Zillow, Instagram, and Facebook.
What is not OK is for the realtor to use the photos for other activities not related to the sale and promotion of the property (this is called “Derivative Work”).
Good examples of this would be advertisements that promote the real estate agent or the agency they work for and use your photos. It can be as simple as a banner in their office, a Facebook banner, or a book cover. They are not promoting the property, they are promoting something else entirely and using your photos to do it.
3. Can your photos be used again at a later date or by a different agent?
Your real estate photos can only be used one time and only for the purpose of selling or renting the property. They can only be used by the agent that hired you or their brokerage (this again can vary from state to state and country to country.)
4. Can agents transfer or assign image rights?
Real estate agents cannot assign or transfer the usage rights of a photo without your express written consent, be it by a bill of sale or contract that specifies usage rights.
The image rights are not theirs to transfer or assign to anyone.
Have a written agreement
Even though the law (at least in the United States) has always sided with the photographer, it is best to always have in writing the limits of what the real estate agent can and cannot do with your photos.
Especially make clear to the agent what the limits are, and that for any other use they should contact you first for approval.
Do not use real estate agent provided photography agreements
Without wanting to hurt anyone’s feelings, any agreement that is written and provided by your customer is more than likely to benefit them and not you the photographer.
I suggest that you place the following disclaimer on your website, quotes, and invoices:
This license provides the Client with the limited right to reproduce, publicly display, and distribute the Photos only for promotional or advertising purposes directly related to the sale of the Property. Photos used for any purpose not directly related to the sale of the Property must be with the express permission of the Photographer and the payment of additional fees unless otherwise agreed to in writing.
As I stated before, I’m not an attorney, so if in doubt, hire one.
Free Real Estate Photography Licensing Agreement
Docracy.com is a website that offers free to use “Open Legal Documents”. They have a great free template for an agreement you can download.
Intended use changes the price of your photos
If you go to any stock photo site, the intended use of the image will change the price. Your customers might argue that they already paid you for the images once, why should they pay again?
You have to explain that the images are sold on a per-use basis and usage rights. If they want to own an image in perpetuity with all usage rights, the price will be drastically higher.
A simple photo of a house on Getty Images goes for about $500 with their “royalty-free” model. For this price, you get a Non-Exclusive image. This means that the image you just bought can be sold to and used by other people, you do not have an exclusive right over the image, so you may end up seeing it on other advertisements and websites.
Things that can change the value of an image:
- Perpetual usage rights vs limited time use
- Geography (where it will be used)
- Media (website, print, billboards, etc.)
- Exclusive use or Non-Exclusive
Your photographs are worth money, don’t leave it to chance and misunderstandings. Be upfront and explain that your photos are yours and they can only use them in a very limited way.
If your clients require other types of agreements, be sure to state the purpose and use in writing, try to be as clear and concise as possible, and avoid vague or generic descriptions of allowed use.
Hope this quick guide helps you be a better photographer and puts more money in your pocket.
“What can I say? I love taking photos of houses.”
Based in Orlando Florida, Jose is a real estate photographer specializing in vacation homes, working for realtors and property managers to make their properties look great.