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Using Someone Else’s Photographs and Transaction Information

by | Apr 6, 2018 | Miscellaneous

Using Someone Else’s Photographs and Transaction Information

Q:  I just changed Brokerages.  I suddenly have three questions regarding using some existing photographs and prior transaction information which I believe may be related:

  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 as well as in the MLS.  My Seller has copies of the pictures and she assured me that it is okay for me to use those photos for my marketing materials.  Is her authorization all that I need?

  1.    I am taking over a listing that had been handled by a different Sales Associate at my new Brokerage.  I wanted to save time and money so I used the same picture that had been used by the other Sales Associate and he objected!  Can he prevent me from using his photographs even if we are affiliated with the same Broker?

  1.    I want to advertise the many deals that I closed 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” these properties?  If I can do that, 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 three questions are related to each other in that use of photographs and sales data has become a significant marketing problem for real estate licensees.  The problems in using someone else’s photographs or using sales data from a prior brokerage involves potential copyright, contract, agency and ethical issues.

Basics of Copyright Law:  Copyright protection attaches automatically at the time the Creator creates the “Work”; the term “Work” includes an expansive list of items:

Written Works (including books, articles, blogs, screen plays);

 Musical & Dramatic Works (including songs, plays, choreography);

 Artistic Works (photographs, drawings, architectural plans, renderings, paintings;) and

 Software.

A Creator’s copyright can be legally enforceable without the need to register the copyright or to provide notice to the world that the copyright protection exists, such as using the © copyright mark. Although most “Work” is automatically copyright protected, the best practice to protect one’s rights is to add the © to any writing or photograph along with the date of the creation so that the world knows the Creator is claiming copyright protection and then register the Work with the Library of Congress.  Those steps clearly establish when the Work was created and who owns that Work.

Copyright protection belongs to the Creator of the Work (including the author, draftsperson or photographer) unless it is a “work for hire” (which generally occurs when the Creator in an employment relationship and the creation occurs during that employment relationship) in which case the person or entity who hired the author or photographer may be able to claim the copyright protection.

  1. PHOTOGRAPHS:  Any time that you consider using photographs that have been obtained from any other source you should proceed with caution; defending copyright infringement claims may well cost more than simply paying for new pictures.

 

  1. Photographer Contracts.  Usually the Photographer who took the pictures will claim a copyright for those images (since the photographer created the photograph); the Photographer will usually only allow the person who hired the photographer (such as the real estate Broker or Sales Associate) to have limited use of that material.  Most Agreements prepared by Attorneys for Photographers generally provide that the Photographer still owns the pictures.

For example, a Photographer’s written contract with a Listing Agent (who paid the fee to get the photos of the home) may specify that the Photographs can only be used by the Listing Agent for marketing and selling that Property during the term of the Listing.  If the Listing Agent tries to use the pictures in a personal promotional brochure after the home has been sold, the Listing Agent may be violating the Photographer’s written contract and may be liable for copyright infringement.  If the new owners try to use those same photographs in a lifestyle magazine featuring their home, the Photographer can make a claim against the Buyers for copyright infringement even if the Seller or the Listing Agent said it was “okay” for the Buyers to use the pictures.

Most of the Agreements created for the benefit of Photographers specify that the Photographer retains ownership rights to the images and the person/entity who hired and paid the Photographer has a very limited, non-transferable license for specific purposes.  If you are not the original person who paid for the photographs and/or if you do not have a contractual right to continue to use those pictures beyond what was permitted in the Agreement with the Photographer, you will need written authorization from the Photographer to “re-use” those pictures and you should expect to pay for the privilege of securing that authorization

  1. Listing Brokerage Hires Photographer.  If the Photographer was hired by the Listing BROKERAGE, then either the Photographer or the Broker owns the rights to use those photographs; but the answer as to which of those two people/entity owns the photographs will be determined by a phrase that should sound familiar: “What does the Photographer’s Agreement say?”  Even if the BROKERAGE owns the pictures, a Sales Associate affiliated with the Broker does not have any right to use those pictures except as permitted by the Broker.  If you leave that Brokerage and work for another Brokerage, you may not be able use those photographs without first securing written authorization from the Photographer and/or the prior BROKERAGE depending upon what the Photographer’s Agreement provides regarding who owns and who can use the pictures.

  1. Listing Sales Associate Hires Photographer.  If you, as the Listing Sales Associate, personally hired and paid the Photographer, then there are additional potential issues even if the Agreement with the Photographer specifies you own the pictures.  If you were affiliated with a Brokerage at the time the photographs were taken, that Brokerage may also be able to claim certain ownership rights because the Photographer was used to market the Property which was listed by the BROKERAGE.

 

Remember, under California law, all Buyers and Sellers belong to the Broker; the clients do not belong to the individual Sales Associates affiliated with the Broker.  Some Brokerages have written policies and/or provisions in their Independent Contractor Agreements which specify that the Brokerage owns all photographic and marketing material that was created and/or used in connection with the Brokerage’s clients.  Brokerage policies apply to licensee activities while the Sales Associate was affiliated with the Broker but termination of that affiliation does not necessarily change the Brokerage’s rights to retain photographs obtained by and used in connection with the Broker’s clients and their Property.

Thus, if you leave that Brokerage, even though you may have paid the Photographer, you may not be able to use those images without first securing written authorization from that prior Brokerage company.  You should carefully review the terms and conditions of the Independent Contractor Agreement that you signed with that other Broker (including any applicable policies and procedures) before “re-using” those photographs.

  1. Listing Properties Previously Listed by Another Broker.  If you list a Property that had previously been listed by another Broker, you do not have the right to use the photographs for any purpose.  The marketing and MLS photos that were used by that other Broker will not be available for you to use unless: (1) you have an Agreement with the Photographer that you have the right to use the photographs and (2) there is no other Agreement between the Photographer and the prior Listing Broker which would prohibit use of those images by anyone else.  Either the Photographer or that prior Listing Broker may prevent you from using their copyrighted work and they can make a claim for copyright infringement.  To secure the necessary written authorizations, you will undoubtedly be required to pay to use the pictures.  It may be faster and more cost effective to simply pay to obtain new pictures.

  1. Listing Properties Previously Listed by Another Sales Associate with Your Broker:Photographs that have been used by another Sales Associate affiliated with your Brokerage may or may not be owned by the other Sales Associate; your new Brokerage may or may not have any rights to assign use of the Photographs to anyone else. Before you go further with the Listing that had previously been handled by a different Sales Associate in your Brokerage, discuss the points in this Weekly Practice Tip with your new Broker and let your Broker sort out these issues. It may well be faster, more cost effective and less acrimonious if you simply pay to obtain new pictures.

 

  1.   Stock Internet Photos.  Sometimes you may see a photo on the Internet that would be useful for your marketing efforts, such as a neighborhood picture, a local landmark or a 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.  These digital watermarks enable tracking software to search the net to find unauthorized users.  These companies will have no qualms about enforcing their copyright protection if their Internet images are used for business, rather than personal, use.

            See Weekly Practice Tip: “Using Photographs from the Internet”

  1. PRIOR TRANSACTIONS WHILE AT FORMER BROKERAGE:

The NAR Code of Ethics only permits the Listing Broker and the Selling Broker to use the word “Sold” related to real properties that they listed and sold. Standard of Practice 12-7.

If a Sales Associate moves from one Brokerage company to another, there will be an understandable desire to advertise the sales in which that Sales Associate participated while at that prior Brokerage.  However, because all clients belong to the Broker, those prior transactions also belong to that prior Broker.  Your new brokerage was neither the Listing nor Selling Broker and thus when you transfer to a new Brokerage you ethically may not use or reference those prior transactions in any marketing or promotional pieces about your sales activities without the prior written consent of your former Broker.

You are not prohibited from using truthful statistics regarding total sales volume during specific periods of time that you were a real estate licensee but you need to use caution to make certain that you are presenting a true picture of your activities so as to comply with all of the Ethics provisions and you should cite the sources for those statistics.

PRACTICE TIPS

  1. When you want to use photographs from a prior Listing or from your prior Broker, obtain written permission from that Broker prior to using those images and request a copy of the written Agreement with the Photographer to determine if you also need to secure the written authorization from the Photographer.  Since it is often time-consuming and costly to meet these practical steps, the best advice is to secure new pictures.

  1. Do not advertise your participation in any specific prior listings or sale transactions when changing from one Brokerage to another without the written permission of that former Broker.

  1. Before you pay a Photographer to take professional pictures for use in your marketing material, you should consider discussing with your Broker any company policies and requirements regarding use and ownership of copyrighted material.  Unless your Broker objects, you should consider using a form created and released by the California Association of REALTORS® in December, 2017 entitled “Property Images Agreement” (Form PIA) to protect your rights to use the images that you are buying.

  1. Under standard MLS rules, to post a Photographer’s images, MLS members must have either an assignment of all rights from the Photographer or an exclusive license to use the images. The PIA was designed for use by a Real Estate Licensee (“REL”) and a Photographer that documents the rights of the REL to use, for specified purposes, photographs, videos or other images of Property taken by the Photographer. The PIA can be used by either the Broker or the Salesperson; and the PIA meets the requirements established for posting photographs onto the MLS.

  1. In view of the growing number of copyright infringement cases, it is anticipated that non-MLS on-line marketing sites, industry publications and other print media will also be requiring proof of either an assignment of all rights or an exclusive license agreement with the creator of the images.

  1. Whether you use the CAR PIA form or an Agreement created by your Broker or the Photographer, be certain that you understand any and all limitations in connection with your use of the Photographer’s images; and you should not use the images for any purpose other than as specifically permitted by the Agreement with the Photographer and/or as authorized by your Broker.

 

DO NOT FORWARD TO CLIENTS OR THIRD PARTIES.  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.

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