Do You Have the Right?

Listing photography licensing and use.

In our digital world, pictures are used more and more to communicate a feeling, a look, or even a message. A post to social media that doesn’t include an image is simply words, and everyone just wants fewer of those! In real estate, photos are an integral part of any listing whether you are a buyer, seller, agent, or the MLS. Accessing images online has become so easy that we often mistakenly think that if it’s posted online then it must be okay to use in whatever way we choose. Unfortunately, too many of us across industries share this misconception and copyright attorneys are cashing in.

The Power of an Image

Reading about a cozy, updated, modern layout is just not the same as seeing it in the listing photos. The right image can play on a buyer’s thoughts and feelings in a way that a written description cannot, no matter how many adjectives you include. Agents and sellers know how important images can be in closing a deal. That may mean great sales numbers, but it’s a significant risk if all those images are not being used properly according to licensing agreements. And with the MLS pushing out listing information to third-party websites like Realtor.com, a single photo could be shared with hundreds, maybe thousands across the real estate industry.

Across the real estate industry, many experts believe ownership of images is “fractured” meaning it is unclear who owns them, who took them, and where they are being posted.¹

Whether an image is taken by a homeowner, agent, brokerage employee, or a professional photographer, there are basic guidelines that protect a subject’s privacy and dictate whether you may need permission to take photos. A basic understanding of these guidelines is a helpful place to start before venturing into ownership, licensing, and use of photographs.

Taking and Using Photos

Public Property

As long as you don’t create a safety hazard like standing in the middle of a busy road, you can shoot on public property without permission. Specific locations may have security, safety, or privacy issues—areas that assume a reasonable expectation of privacy like a hospital–that are exceptions. In most cases, photos taken on public property can be published without the need for permission even if they include people.

Private Property

Most private property owned by businesses, or public buildings such as concert halls, will have restrictions on what you can photograph. You will probably need permission to take photos and will most likely need to outline how you plan to use the photos to secure approval.

Commercial Use

If you’re planning to use any photo for commercial purposes like advertising a product or service (or selling a home), then you need a subject’s permission in the form of a signed release and you may even need to compensate them. Individual state statutes may further define “commercial use.” If you are selling photos to a newspaper or magazine, you generally do not need a subject’s permission since it is considered editorial, however some publications may require a standard release.

A photo release is a legal document granting permission to a photographer, business, or individual to obtain and use photos for commercial or personal use. When in doubt, secure a release.

Whether you are taking photos yourself or plan to hire a professional photographer, these same rules apply. Choosing a professional photographer may mean higher quality photos but also requires an agreement on the use and licensing of the photographs taken.

Photo Licensing Agreements

Many people mistakenly believe if they pay a photographer to take pictures, they own the photos and can use them in whatever way they wish. However, few professional photographers hand over full rights to their work. Most will offer a limited-use license for photos–a specific amount of time you can use the photos for a set fee. The photographer retains ownership of their work and you are simply renting it for a short period of time. Unless otherwise noted, you do not have permission to reproduce photos or share them outside of the original agreement. Keep in mind that an agreement you sign with a professional does not apply to anyone else besides you. Agents can quickly get into trouble if licensing agreements are misunderstood, ignored, or simply forgotten. Typical scenarios that can easily lead to copyright infringement include:

• Taking over a listing from another agent and continuing to use the original listing photos
• Finding photos of common areas of a condo or apartment complex from another listing and using them for your listing without permission
• Finding photos of the local area around a listing (parks, pools, etc.) and using without permission

Without knowing who took the photos or what the licensing agreement is, you are exposing yourself to potential liability. Listing aggregator Zillow continues to be charged with copyright infringement for scraping professional photos without permission even though they maintain once a photo is uploaded to their site they “own” the copyright.

The two most important questions to answer before uploading a listing photo are: Who took the photo? And, how can it be used?

Best Practices

Any photograph you plan to use for a listing should have an accompanying license agreement. If you are working with a professional photographer, it is helpful to know in advance how you wish to use the photos so those stipulations can be included in any licensing agreement. Specifically, if you wish to use photos beyond the active listing period or for other purposes beyond a listing, for example on your website, that should be spelled out in the agreement. As an agent, you may wish to provide your own license agreements to potential photographers that will fit your needs. The National Association of REALTORS^® has several sample licensing agreements that may be helpful.

You should maintain records of all agreements and regularly audit your use of photographs to ensure you are within the licensing agreement. If this sounds complicated, you can always take your own photographs if you feel confident in your abilities, or there are sources for public license materials. A public copyright license gives you permission to use photographs and other media provided you agree to their terms of use. One such site, CreativeCommons.org, offers photos, as well as audio, video, and other materials under a public copyright license for general use.

The important role photography plays in the real estate industry cannot be overestimated. A clear understanding of the rules surrounding use and licensing will go a long way to reducing potential liability and ensuring privacy and copyright laws are being enforced for everyone’s protection.

This article is for informational purposes only.

CITATIONS

¹“Who Owns Your Property Photos?” National Association of REALTORS®, 9 November 2016.

“Real Estate Photography and Copyright Law.” The Best Real Estate Photographer, 23 October 2017.

Freedman, Robert. “Protect Yourself Against Copyright Claims.” REALTOR® Magazine, 27 July 2018.

Schlackman, Steve. “Is Street Photography Legal?” Art Law Journal, 29 August 2018.

Vishneski, Bob. “Know Your Rights as a Photographer!” Photography Life, n.d.

Zimmerman, Cassie. “Copyrighted Real Estate Photos… Who Owns Them and Why?” Boise Regional REALTORS®, 10 October 2017.