Q: I hired a Photographer to take videos and pictures of my new listing, including using a drone to capture aerial shots of both the home and its beautiful surrounding area. The Photographer insisted I sign his contract; he then flew the drone taking pictures and video. After the Photographer left, an irate neighbor came over and complained that his privacy had been invaded by the drone. Today, the neighbor’s attorney sent me a letter threatening to sue me, my Broker and the Photographer for damages claiming trespass, invasion of privacy and emotional distress. Can I be held liable for what the Photographer did? What do I do next?
A: The use of drones has become a popular aspect of real estate marketing. Unfortunately, that use has also given rise to an increased number of complaints from neighbors who are making claims like the one you received; and Agents can be held liable. At this point, you need to give the attorney’s claim letter to your Broker so that the Brokerage’s attorney/insurance carrier can handle the claim.
Although there is not much that you can do now with respect to the neighbor’s claim, there are some things that you and your Broker can do in the future to protect yourself from this type of problem.
i. THE LAW
A. FEDERAL: The Federal Aviation Administration (“FAA”) has issued different rules governing the commercial and recreational use of drones, which are legally known as Unmanned Aircraft Systems (“UAS”). Using drones for marketing real property constitutes a commercial purpose and, before you hire a drone operator, make sure that the following requirements are met:
- The drone pilot must possess a current valid Remote Pilot Certificate; and
- The drone must be registered with the FAA and be issued a registration number.
Here is the link to current FAA rules for commercial drone operators:
https://www.faa.gov/uas/commercial_operators/Part_107_Summary.pdf (faa.gov)
B. CALIFORNIA: California’s privacy laws address the issue of invasion of privacy by one who enters into the airspace of another’s land to take photographs and/or videos:
”A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” Civil Code Section 1708.8(a)
II. HIRING A PHOTOGRAPHER
A. CERTIFICATION: Before hiring a Photographer, request proof that the Photographer has a valid, current Remote Pilot Certificate from the FAA, and a registration number for the drone.
B. PHOTOGRAPHER AGREEMENT: Review the contract before signing it. Does that contract address the use of drones and/or does it include an indemnification provision that the Photographer will defend you and your Broker from any claims relating to the use of the drones?
CAR has a “Property Images Agreement” (form PIA on zipForms) which currently does not address the use of drones. It is anticipated that CAR will be adding a “Drone Use and Indemnification” paragraph in June 2021. If the contract with the Photographer does not include a drone paragraph, we recommend using the PIA June 2021 version with that paragraph, or insist that the Photographer agree to add an Addendum with the following provision:
DRONE USE AND INDEMNIFICATION: Photographer understands, acknowledges and agrees that it is Photographer’s sole responsibility to be knowledgeable about and to fully comply with all rules and regulations applicable to the use of drones (unmanned small aircraft) in connection with Photographer’s work pursuant to this Agreement, including, but not limited to, the Remote Identification of Unmanned Aircraft (CFR Title 14, Part 89), the Operation of Unmanned Aircraft Systems Over People (CFR Title 14, Part 107), and any California laws respecting the airspace privacy rights of a person’s real property. Photographer further agrees to indemnify, defend and hold harmless Broker from any claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees and costs, related to or arising from, any actual or alleged damage of any kind to persons or property resulting from Photographer’s use of drones.
PRACTICE TIPS:
- Before hiring a Photographer or anyone else to use a drone, confirm their compliance with all FAA requirements and make sure that the Photographer/Drone Operator affirms in the contract that the Photographer/Drone Operator will comply with all state and federal laws regarding the use of drones.
- Insist that the Photographer/Drone Operator contract includes language that will indemnify you and your Broker for liability arising from the use of a drone.
- Be aware that neighbors may object for fear of privacy intrusion or noise. It is best to contact nearby neighbors and alert them to the drone video shoot and that the Photographer/Drone Operator will be required to respect their privacy rights.
- Brokers may wish to establish a list of approved Photographers/Drone Operators who use drones to take aerial photography, and add them to the Brokerage’s list of approved vendors.
- When you receive any communication alleging any type of claim, immediately bring that communication to the attention of your manager/Broker for further handling and possible reporting to the Brokerage’s insurance carrier(s) as a claim or potential claim.
DO NOT FORWARD TO CLIENTS. This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2021 03/05/21