When another party wants you to sign an agreement that states they can help you promote your listings, make sure you understand the true costs and don’t give up your rights unwittingly. Also, make sure you aren’t making representations to this website of rights you don’t have. This creates even further risk when they ask you to indemnify them from all liabilities. There is a saying; “If a company is giving you a service for free, chances are you aren’t their customer, you are their product.”
Verifying that you have rights to use the content
If you work with a reputable photographer or photography company for your brokerage, you should have a written agreement from the provider that expressly grants YOU rights to use the photographs to market YOUR listings. Such a limited right is called a license.
This license typically allows your agents and your brokerage to copy, duplicate and display the photographs at will. Securing this license protects you from legal and financial liabilities. With this written agreement and the correct verbiage in place you can be confident in your ability to use those photographs in the normal course of your business.
These licenses are not boundless however. As mentioned above, some typical restrictions you may see in these types of agreements include: the right to sell the images (assignment), the transfer of those rights (sub-licensing), or the use of the images for purposes other than marketing a home for sale, an agent or your brokerage (licensing).
If you don’t have an agreement in writing from your photography provider, you should get one ASAP. Without this, you may not have all rights you believe you have and your capacity to use the images might be impaired.
If your agents are having their own photographs taken and you are using them, make sure they have secured rights from their photographers, and, more importantly, that the rights they have apply to your brokerage as well. If your agents take their own photographs, they should confirm for you in writing that they are giving you permission to use those photographs and should also clearly specify for which specific purposes they give you the rights to use the images. In a dispute – let’s say for example that an agent leaves your brokerage – this could become an area of contention.
Copyright law
A copyright differs from the artistic creation of the work. For example, if you buy an artist’s canvas, you generally do not secure the copyright. You cannot use the canvas you own to produce a hundred lithographs for sale in an art gallery. The same way, a real estate photographer (or his employer) owns the rights in the copyright even if they give you a license to use the digital image.
Just like any time you place an ad in a publication or make a copy at a copy store of that picture in your possession, the other party receiving the image needs to ensure that you actually have the rights to do what you are doing. Otherwise, the publication or the copy store will be equally liable for copyright infringement. Those rights will come in writing from the authors or creators of the content you are using. In the case of photographs, they will come from the photographer or his/her employer.
U.S. copyright law states that the author of a work (or his/her employer) is the owner of the copyright and has all rights unless they expressly (in writing) grant rights to someone else. If you don’t have an agreement in writing with anyone who has produced photographs that are displayed on your site, you should get them. Without that written consent, the owner of the copyrights could possibly take you to court for copyright infringement. U.S. copyright law stipulates that in some cases, you may be liable for very expensive statutory damages for copyright infringement; anywhere from $750 to over $30,000 per infringement. In some egregious cases, this damage can be further multiplied.
Remember, copyright law is designed to protect the author, or in the case of professional photography, the photographers themselves. The burden is often on the persons copying the image to prove they own or have secured the proper rights to the image. Using reputable photography studios is the best way to ensure this first protection.
What is a watermark? © ABC Studios
Unlike listing data, images are instantly protected by a Copyright, which befalls either on the photographer or the employer of the photographer on the day the image is shot.
The same way Picasso signed his paintings, Copyright owners are entitled by law to include a notice of ownership of their own rights. This initial notice is called a ‘watermark.’ Altering and cutting these watermarks is prohibited by law. The use of the watermark ultimately protects you.
- A Watermark assures you and any of your marketing partners and your brokerage that because you work with a professional studio YOU have the rights to use this image for marketing this home and your company.
- It conveys to others that the image is registered with the US copyright office and if someone uses it for unintended purposes they are subject to copyright infringement.
What now?
Contracts are two way streets. If someone wants to use your content for purposes other than yours, make sure you understand the ramifications and negotiate from a position of knowledge. Sometimes it’s as simple as using a red pen to say ‘no’.
Read this original post on VHT’s website, here. Email communications@vht.com for more information.
Brian Balduf has been actively involved in marketing, technology and media for over 30 years. He has built VHT Studios into the largest real estate photography, video and multimedia company in the country. A frequent speaker at industry events, Brian received his B.S. in Marketing from U of I Chicago and an MBA and Masters in Information Systems from Benedictine University.
