BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Using Another Broker’s Photographs and Transaction Information
Q: I have two related questions regarding using other brokers’ photographs and transaction information:
1. I am listing a property that had previously been listed with another broker. The prior listing agent had some beautiful pictures of the property in their marketing brochure and in the MLS. My seller says it is okay to use those photos for my marketing materials. Is that okay?
2. I recently moved to my current brokerage and I want to advertise my prior sales while I was at my prior brokerage company. Can I advertise that I was the listing agent and/or selling agent and that I “Sold” the properties? And can I use the photographs of the properties I sold while at that company? In many cases, I hired the photographer and paid for the photos myself.
A: You are correct that these are related questions.
Basics of copyright law: Copyright protection attaches automatically at the time a work is created. If a person writes an article or book, or takes a photograph, the copyright automatically and immediately attaches to that work or photograph when completed. There is no need for a registration of a copyright, and there is not even a need for a notice to the world, such as the © copyright mark, to bestow copyright protection on that work or photograph. However, adding the © to a work or photograph does let the world know that a copyright is being claimed.
This copyright protection belongs to the author/photographer who created the work, unless it is a “work for hire” in which case the person or entity who hired the author or photographer can claim a copyright.
1. Photographs. You have to be very careful anytime you are using photographs from another source.
A. Photographer Contracts. Usually the photographers who took the pictures will claim a copyright for those photos (since they created the photo) and will allow the person who hired the photographer (i.e., the real estate broker) a limited use for them. For example, the photographer may have a written contract with the broker/agent who hired them for the photo shoot of the home to use the photos for marketing and selling the property. But, the photographer may object to other uses, for example, if those photos are later used in a lifestyle magazine featuring the home.
B. Listing Broker Hires Photographer. If the photographer was hired by the listing BROKER, then either the photographer or the broker own the rights to those photos depending on the agreement between them. The agent does not have a right to use them except as permitted by the broker. If you leave that brokerage and work for another broker, you may not use those photographs with your new broker.
C. Listing Agent Hires Photographer. If the listing AGENT hired and paid the photographer things are not so clear. Because the agent was working as an agent for the broker at the time, that broker may claim that those photos still belong to the broker because you hired the photographer to market the property listed by the BROKER. (Remember, under California law, all clients belong to the broker). Some brokers’ written policies may state that the broker owns all such “works for hire.” Thus, if you leave that broker, he/she may still claim that you may not use those photographs.
D. Re-Listed Properties. If you re-list a property that had previously been listed with another broker, the same issues apply to any marketing and MLS photos that were used by that prior broker. Either the photographer or the prior listing broker may claim that you do not have a right to use those photos. This is also true for photos of properties which an agent had listed with the prior employing broker. If the property is then re-listed by that agent when with the new broker, those prior photos of the property may not be used by that agent without the permission of the prior broker.
E. Stock Internet Photos. Sometimes you may see a photo on the internet that would be useful for your marketing efforts, such as a neighborhood photo, a local landmark or beautiful scenic view. Many companies, such as Getty Images, which is the largest image purveyor in the world, have hundreds of thousands of stock internet images which have “digital watermarks” embedded in them which can be tracked on the internet by software which searches the net to find unauthorized uses. And they will enforce their copyright protection if these images are used for business, rather than personal, use.
See Weekly Practice Tip “Using Photographs from the Internet”
2. Prior Transactions While at Prior Broker
The NAR Code of Ethics allows only the listing broker and the selling broker to use the word “Sold” related to properties that they listed and sold. Standard of Practice 12-7.
If an agent moves from one brokerage company to another, the instinct is to want to advertise the sales in which that agent participated while at that prior brokerage. However, because all clients belong to the broker, those prior transactions also belong to that prior broker. The agent’s new brokerage is neither the listing nor selling broker and so the transferring agent may not use those prior transactions in any marketing or promotional pieces without the prior written consent of the prior broker.
PRACTICE TIPS
1. When using photographs from a prior listing or employing broker, obtain written permission from that broker prior to use.
2. Do not advertise prior sale transactions when changing from one brokerage to another without the permission of that prior broker.
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© Copyright Broker Risk Management 2014 03/21/14