Window to the Law: Copyright Best Practices for Listing Photos

A crucial risk management strategy for real estate professionals is understanding the rights they receive to use listing photographs as well as the rights they grant to others to use listing photographs. A misunderstanding of these rights may increase the risk of a copyright infringement allegation, so consider implementing the following best practices to avoid being the target of a copyright infringement lawsuit.

First, review your existing photography agreements.

• Determine whether the agreements provide that (one) the photographs are works made for hire or (two) the photographer assigns ownership to you. If so, great! In either case, this means that you own the listing photographs and may use them however you like. The same applies if you took the photos yourself – you own them, and are free to do whatever you want with them.
• If, however, the photographer licenses the photos to you, this means that the photographer still owns the photos, but is allowing you to use them under certain restrictions. It’s important then that you understand what those restrictions entail because failure to comply could result in copyright infringement liability.
• If you’re shaking your head and thinking “What agreements?”, well, we strongly recommend that you begin using written agreements that clearly define your rights. Check out NAR’s sample photography agreements available on nar.realtor. The sample agreements include a work made for hire agreement, which means you own the photos as soon as they are created, an assignment agreement, which means that the owner is transferring ownership of the photos to you, and third, a license agreement, under which the photographer retains ownership of the photos, but permits your broad use of the photos in connection with the real estate industry.

Alright, so you’ve reviewed your agreements, now what? Well, if you own the photos either through a work made for hire or assignment agreement or because you took the photographs yourself, you may use the photos however you’d like, which is why ownership is the best case scenario. If you licensed the photos, you want to be sure to comply with the licensing restrictions, so take stock of how your use of the photos compares to the relevant license agreement. Read your agreements carefully to determine the restrictions that apply to you, and periodically audit your use of the photos to ensure compliance with the relevant agreement. If you discover any discrepancies, take prompt action to modify your use of the photos to achieve compliance. Moving forward, try to obtain ownership of your listing photos or, if that is impossible, a broad license that permits any use of the photos in connection with the real estate industry.

So far we’ve focused on the rights you receive to your listing photos. It’s equally as crucial though to understand any rights you grant in the photographs to third parties, like an MLS, an online management platform, or a portal.

• [slide 4] Always carefully read any third-party agreement. If you agree to the terms before understanding them, you may inadvertently give the third party a right that you either don’t have the ability to grant or don’t want to grant, such as ownership of the photos.
• If you are using the photos pursuant to a license, the license restrictions imposed on your use of the photos will probably also apply to a third party’s use of the photos, so make sure the third party’s use of the photos will not exceed the scope of your license.
• Finally, keep in mind that most agreements include a clause in which the parties represent and warrant that they have the necessary rights to enter into the agreement. If you grant rights that you don’t have the ability to grant, you could be liable for breaching this representation, so make sure you are able to do what the agreement requires of you.
• Protect yourself, and your listing photos, by implementing the best practices we covered today
• Use written agreements for your listing photos. Check out NAR’s sample photography agreements on nar.realtor.
• Review your photography agreements to determine your rights in listing photographs.
• It’s best to own your listing photos, but if that’s not possible, then obtain a license that permits broad use of the photos in the real estate industry.
• It’s important to understand the rights you grant to any third party to use the listing photos and to also ensure your rights conform with those granted.

Thanks for watching this month’s episode of Window to the Law.