What REALTORS® Need to Know About Copyright Law and Photography

The internet has been both a blessing and a curse for professional photographers.  The ease at which you can market your works to anyone in the world has changed the industry.  The consequence of that, however, is the challenge of protecting your intellectual property.

REALTORS® often infringe on the protected works of photographers without even knowing.  While showing a picture of a beautiful town center can increase the quality of a listing, it can also put you at serious risk.

Applicable Copyright Law

Copyright Law is meant to protect original works, and attaches to those original works immediately after they are created.  Registration with the U.S. Copyright Office is not necessary, but recommended to protect the original work.

Some Real estate professionals cite the exceptions to this rule, or what is known as “fair use”.  “Fair use” is highly misunderstood, however, and does not apply to the Real Estate transaction because it is commercial in nature.  For this reason, REALTORS® MUST obtain permission for use of another’s photos.

Forms of Licensing

Photo permission comes in various forms of licensing.

Rights Managed (RM) – Rights managed is a restrictive form of licensing which specifies the particular use of a photo.  This can include the geographic region, the period of time, and the size.  These factors will change the cost of the license.

Royalty Free (RF) – Royalty Free is the most popular modern form of licensing.  The image providers create a one-time fee for “free” use of all of their images.  This is a non-exclusive license that anyone can use.

Extended Licenses – Extended licenses are an extension of a Royalty Free license that allows for a use that was originally prohibited by a Royalty Free License.

Creative Commons – Creative Commons is like Royalty Free, but without the fee.  It allows for the free use of images from the image provider for various specified purposes.

Explicit Permission

Beyond these forms of licensing, it is the responsibility of the REALTOR® to obtain permission.  Thankfully the National Association of REALTORS® (NAR) makes this easy.  NAR has three available sample listing photo agreements.

From the NAR Website

Work for Hire Agreement: This sample agreement provides that the commissioned photographs are a “Work for Hire”, which means the commissioning party is the automatic owner of the photographs from their creation.
Download: DOC | PDF

Assignment Agreement: In this sample agreement, the photographer assigns all right, title and interest in the photographs to the broker.
Download: DOC | PDF

Exclusive License Agreement: A photographer may want to retain its ownership of the photographs. In this sample agreement, the photographer grants to the broker an exclusive license to display and distribute the photographs in connection with the real estate industry.
Download: DOC | PDF

The Digital Millennium Copyright Act (DMCA)

The DMCA allows for website operator protection from copyright infringement by third parties who post content on their website.  For example, this might be the case for a website operator that allows others to post listing photos on their website.  This protection is referred to as “Safe Harbor.”

Here are the steps to qualify for “Safe Harbor” protection.

  1. Designate a Copyright Agent. This will be the point of contact for any alleged infringement.  You can do so hereEven if you have already registered, you need to reregister digitally by December 31th. 
  2. Comply with the DMCA Takedown Procedure. This consists of the Copyright Agent responding to the Takedown request.
  3. There must not be knowledge of the infringing activity.
  4. There must not be direct financial benefit attributable to the infringing activity.
  5. There must be a repeat infringer policy on your website.

NAR created this handy little video explaining this process.

For any other questions, please contact us.

Disclaimer – This update is intended as a general advisory, and is not intended as a substitute for individual legal advice. Advice in specific situations may differ depending upon a wide variety of factors. Therefore, readers with specific legal questions should seek the advice of an attorney.     

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