Kitchen in Columbia, MD

Real Estate Photography and Copyright Law

How familiar are you with real estate photography and copyright law?

Earlier in 2017, a photographer successfully sued an internet entrepreneur.  Why was the internet entrepreneur sued? Well, when entrepreneur Dan decided to use a photo that he found by searching Google Images, he didn’t request permission to use the photo from the owner of the photograph first.

Most of the time when someone goes through this they’ll say something like:

“I know I shouldn’t use images I find online.  It’s my fault, and I’m going to be more careful about using images from now on.”

Except that isn’t what Dan did.  Here he is, explaining the situation in his own words:

As of today that video has had over 206,000 views.  Here’s what Dan says in this video:

To put it into context, the reason I was sued was because I used a picture that I found on Google Images. Now, I should have known better, yes, in my position I should know better. But, again, I never really thought that there are malicious people out there that […] maliciously put pictures on the Internet.

… It never ever said on the images that it can’t be used or anything like that.”

Why would someone think that just because something is online that it is free to copy and/or use?

People share articles, write their own content, advertise products and services, and upload photos that they’ve taken.  If they want to do those things to promote their own business or another business online then they shouldn’t have to let everyone know that each of the photos is copyrighted.

Dan also talks about using images from search.CreativeCommons.org and says:

“These images aren’t going to be the best, they’re not going to be super, super amazing images that are super high quality, but then you’re also not allowing yourself to be open to vulnerable attacks.

Now the reason I was open to a vulnerable lawsuit like this wasn’t because I used the photo, okay. Because let’s face it, I’m one of millions of sites out there that are going to Google Images and going and getting images, and guess what? I still do that with little graphics here and there. So it didn’t deter me from still doing it, it’s just that there are people out there who will target you maliciously and go out and sue you for what you have.

It’s strange that Dan views and portrays himself as the victim in this situation, when in actuality the photographer is the victim and is simply seeking compensation for the work he or she created.

He acknowledges the images available through Creative Commons aren’t very good, but seems to imply the the good images are the ones on Google Images and they are there only because they were uploaded to a photographer’s website or a seller of products and services.  In other words, the things that cost money to be photographed by a professional photographer are the good things.  Somehow, he doesn’t seem to understand that the “good things” should be paid for.  This type of thinking is very odd to me, but it seems that a lot of people do think this way.

So how does Copyright Law apply to real estate photography?

When it comes to using photos for real estate marketing, I see two possibilities:

1.  Some agents will take over a listing from another agent and continue to use the same photos, even though they haven’t paid for them or they’ll search for other photos of the same property online and use those.  They may also search for photos of apartment complexes or neighborhoods and use the images they find online in their own marketing without paying for the use of the images or asking for approval from the photographer.

2.  Sometimes agents will find local area images, and assume those photos are free for them to use.  So they may find another listing in the same area in which a professional photographer created some photos of amenities such as a park, school, tourist attraction, etc. and just use those photos in their own listing.

Regardless, in both situations the real estate agent is breaking the law.  To put it more bluntly, they are stealing.  It is no different than if the agent walked into a store, removed the photos from a shelf, put them in their coat and walked out. 

How can a real estate agent use photos legally?

There are two ways to use photos legally and avoid problems:

One way is to take your own photo.  The quality may not be any better than one found through Creative Commons, but it is one way to get the shot.

A second way is to hire a professional photographer.  This way an agent is sure to get the images needed, and the photographer will grant permission to use the photos in a particular way for a certain period of time.  Make sure you understand the limitations of usage.  If you aren’t sure, simply ask the photographer to explain it to you.  If you need different usage terms the photographer can help you with that as well, although there may be a different price depending on your needs.

If you pay a photographer to take images can you use those images forever?

Not unless the photographer grants you permission for this type of usage.  Some photographers will do this and some won’t.  In general, if you want unlimited use of a photo then you will pay more for it.

To further explain this, it’s important to understand that photography is similar to movies, music, TV shows, and other media.  If you purchase a copy of a movie on DVD, you aren’t legally able to make copies of it and then sell it to other people.  You can’t broadcast it online, or upload it to YouTube for everyone to see.  The content of the DVD is for ‘personal use’ only, meaning you can invite your friends and family members to come over and watch it.  But you can’t buy a movie on DVD, setup your own network, and broadcast that movie to the general public.  If you want to do that then you will have to pay more for the DVD because you’ll make more money from it through advertising and promoting your network.  In other words, the movie has more value to you as a network owner than to a family, so it’s only fair that the network pay more for it.

How does this apply to photography?

If you want to use a photo for up to 6 months to market a home, then you’ll be paying the lowest possible amount.  That’s because the timeframe to use the photo is limited as the photo will only be used until the home is sold.

However, if you want to use a photo for 5 years to market yourself then the timeframe for using the photo increases, and you should expect the photography fee to increase as well.

Why do photographers charge more for extended usage or longer licensing terms?

Thomas Kuoh explains why a photographer charges more for broader image use in this video:

Some of the key quotes from Thomas in the above video are:

Why don't I charge one fee and then do the work and then everybody can use it for free?

Number one is that it's not fair for the person who paid for the licensing for the commissioned shoot.

Number two, if my client doesn't want anyone else to use the photos they will pay a 'buy out fee.'  And that potential 'buy out fee' is enough to make up for any potential loss of income for additional licensing.

So, in essence, I'm saving my clients money.  I'm spreading the cost of that photo shoot out a little bit.

Photographers need to build operable businesses if they want to stay in business.  In order to do that photographers need to charge appropriate fees to cover their costs (you might be surprised at how expensive it is to operate a photography business).

So to charge one fee for unlimited use, or one fee and then make the photo available for free, then the initial fee would need to be very high.  In order to keep costs down then, photographers charge fees based on the amount of use a photo gets.

It may help to think of it like a bar.  They don’t charge an admission fee of $100 for unlimited drinks to their customers.  Some customers may want lots of drinks, while others may only want one drink.  So the bar charges each customer a small amount for each drink that they order.  Photography licensing works the same way – each person who wants to use the photo pays a different amount, depending on the length of time they want to use the photo.

Thomas also says:

Why wouldn’t I want to let (a third party) use the work (without paying extra)? … Well, it depends. Is the benefit the same for you as it is for me? If you’re a business and wanting to use my work to market your business then perhaps it’s not a direct return on investment, but having high quality photography on your site builds trust with your clients and they feel more comfortable buying from you. So there’s a value there. I’m providing value to your business, and of course I appreciate any free advertising I receive, but that should be in addition to the proper licensing and not instead of (the licensing).

In other words if the client, and let’s say it’s a builder, wanted to use the photos forever the photographer would need to charge that builder a high rate. However, if the builder only wanted to use the photo for a year then the photographer would charge them much less because the image has less value to the builder.

Thomas also compares the value of a photo sitting in a closet to the value of a photo that’s on the cover of Time Magazine.  It may be the same photo, but in one situation no one sees the photo so it isn’t worth anything, but in the other situation that photo will be seen by millions of people and potentially make a lot of money.  Therefore, the second photo is worth much more.

… No matter what there has to be a ‘win-win,’ and it’s all about a negotiation. … So if I can help another business grow, then I will have a client for life. And if your photographer has that mindset, then you’re golden.

Hopefully this helps you to understand copyright and image licensing.

If it still isn’t clear for you just remember that a photo created by your real estate photographer is treated the same way as a Top 10 hit for a musician.  You can’t do whatever you want to do with the music that the musician creates, and you can’t do whatever you want with the photo that the photographer creates.  Please feel free to contact us at Charm City Virtual Tours if you have additional questions about copyright and licensing.

Resources:


What is Copyright Law?

Here is a description of Copyright Law of the United States which includes links to the various chapters of Title 17.

A simple explanation can also be found through the Professional Photographers of America (PPA):

  • Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation.
  • Photographers have the exclusive right to reproduce their photographs (control making copies).
  • Unless you have permission from the photographer, you can’t copy, distribute (no scanning or sending them to others), publicly display (online), or create derivative works from photographs.
  • Copyright infringements – reproducing photos without permission – can result in civil and criminal penalties.

.. or look at this video for a simple explanation of US Copyright Law – “Copyright Basics.

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