Don’t Get SUED over Realty Photos! Here’s What you Need to Know

What do you need to know about real estate photography so that you do not get sued? What do you need to know about choosing a photographer where you can use the photos again and again? 

Know your rights and learn how to not trigger a lawsuit from real estate photographers. In this blog and episode of The #RealtyHack Podcast, Will Durham with the Austin Board of Realtors and Tyler Jackson of Optica Photography Services joined us for a discussion about real estate photography ownership and copyright.

Real Estate Listing Photo Ownership

Because everybody loves the photos, there is a huge point for marketing a listing and from our side of things on the MLS when working with agents and brokers. We want to make sure you all have as much clarity as possible to understand how to properly navigate using photos, and copyright usage. There are a number of elements that get complicated quickly, just due to all that legal fun there. 

The best practice or the safest measure you can do is to not input any listing photos in the MLS without knowing the proper ownership agreement between you, somebody else, or the photographer. You have to know who you’re working with and who owns these photos. See if you are good to use these photos within the MLS and on social media.

Photographer Agreement With Real Estate Photos and the MLS

The Austin Board of Realtors has a great resource and reference for photographers through their ABoR MLS Verified Photography Partner Program. This is a group of local photographers who have entered into a specific agreement with the MLS as a kind of a two-party agreement. What that agreement is designed to do and what it does is it simplifies the process for agents and brokers who owns those photos and who is licensed to use the photos. 

In that agreement, the photographer remit retains ownership rights of those photos, but the MLS does have a license to distribute those photos for advertising the property and listing. Those are input through the listing agent and or broker within that system. With ABOR’s MLS Verified Photography Partner Program, you’ll find in that program are photographers who have entered into that agreement.

Real Estate Listing Photo Ownership

Agents need to know that this is not giving them the freedom to use those photos. Using a listing photo again from the same past listing is considered to be a violation if you don’t get permission from the photographer. You have to ask the photographer the right questions at the right time, do I actually I got them for this specific listing, listing presentation, or whatever amount of months or years later it is, or will you be able to reuse the images given.

You might have an agreement with a photographer where they transfer the full ownership rights to you, but that type of permission should be laid out. Right-clicking images and saving them from the MLS to be placed onto your own listing is not the proper usage without the ultimate permission from the owner of the photos which is most likely the photographer.

It’s important for agents to make sure that you know what your licensing is and that you’re not going to get in trouble for it. If there are photographers that give you the rights to the photos, why not use them?

MLS Photo Violations

On the MLS side, they are mostly about education and enforcement in terms of getting the photos corrected or removed so the owner understands that they do their best to track it down and remove it.

For photographers, whoever is citing ownership of that and their creative work can put any dollar amount. Locally, we’ve heard disputes such as the photographer and the new listing agent because the photographer has ownership, we connect with them and try to figure something out such as paying them a flat fee or taking new photos. 

Unfortunately, most times, it really does resolve the case and it’s able to work out. That’s where the conversation begins about the terms of who owns the photos, what the claims are, and what they need to get in return for it.

Can Real Estate Agents Use Another Agent’s Listing Photos?

One of the most common myths and misconceptions is reusing the images from a past listing to use with a similar listing. You may have permission from your broker or an agent that previously marketed the listing, but it’s not the permission you need, which should come from the owner – the photographer.

In ABOR’s Verified Photographer Program, for the photographer and MLS, here’s what the agent and the photographer laid out and you need to stick to what’s documented and if it needs to change. But to your initial point, whoever owns those photos is going to be the one that the permission needs to come from whether or not somebody else uses them and is licensed in a different way.

If you’re a real estate agent that is hiring a photographer to list a property, take note of this:

1. Make sure you know what the licensing agreement is. Do you have use of that continually? In most cases, no and you need to know if you can use them again, but you’ll probably pay a licensing fee.
2. Look for a photographer that will give you the rights to those photos.
3. If you’re an agent that is emailing a listing agent that had photos of their listing, that listing agent does not have the right to give you permission to that.

Using MLS Photos for Social Media

Social media such as Instagram and Facebook are different mediums. This is an area where you want to play it safe not make any assumptions or not take any risks. If you don’t have the proper ownership and it could be made that you’re having monetary gains from somebody else’s creative works, that’s where it gets sticky and that’s where you’d want to get ahead of anything like that.

If you’re working with a photographer, verify who has the ownership. The last listing agent may have been the photographer or have used a nice phone or camera, and in that case, they can fully claim ownership of the photos. Don’t make any assumptions, play it safe, and do your due diligence at any time.

How to Not Get Sued By Real Estate Photographers

We’re joined by Tyler Jackson from Optica Photography Services who will give us thoughts on how to not get sued by real estate photographers. With photographers suing Zillow and Redfin over their property photos, Tyler sees this as a complex issue so as a photographer, he simplifies it. 

His take is that he is somebody who is for hire by agents and that he’s providing a service for agents that they can use. Tyler sees this as something that is not worth his time to go after photos. After he has given the photos to his agents, he has better things to do such as getting new clients or trying to better his skills to take better photos in the future. The last thing he wants to do is make a client feel that they’ve done something wrong.

If you’re taking photos of downtown and landscape for Shutterstock or other stock photography companies, you know that’s your photograph. But when you’re doing something for a home, I think real estate agents should not have to worry about getting sued.

How Optica Licenses Their Real Estate Photos

For some photographers, they pull the trigger on the camera button and that copyright is the photographer’s, but with Tyler, he considers himself work for hire. He mentions that he is providing a product for you and you can use it however and as many times are you want.

Copyright Issues With Real Estate Photos

This is a very valid issue. Let’s say I’m a listing agent, you come and take photos for me. A buyer’s agent helps the buyer buy that property. Two years later, they want to sell it, they call and ask me if I if they could have my permission to use the photos. Well with that, it’s not my permission they need. It’s the real estate photographer.

There was a company in Houston that got sued hell and back because they used photographs of an upcoming development and it now became a huge lawsuit. We don’t want to worry about that. The agent should work with someone that will allow you to own the photos so you don’t have to worry about it.

It’s kind of like the ambulance chasers, there are attorneys who love to go into litigation for copyright, and then that kind of encourages real estate photographers or any type of photographer, but since we’re talking about real estate, and encourages them to get on with that, they see as an extra source of income.

As a photographer, Tyler says that you would not want to potentially burn a bridge with an agent. Let’s say he sends you a cease and desist from an attorney, would you want to hire him again? No. Your name will be tarnished for anybody else that you’ve talked to. Tyler would rather pack his day with more photoshoots with new clients that could share his name too. 

It’s encouraged that any photographer out there protect their art when they take images of the skyline, hiking trails, or anything like that, but to this notion of home interior and exterior photos, they should be the agent’s photos.

Connect With Tyler in Optica Photography Services

• Optica Photography Services Website
• Optica Photography Services Instagram

What do you think about this issue with photography? Should real estate agents own it or not? Maybe I’m wrong. Let me know what they think if you’re, if you’re watching this, and you’re photographers set me straight. I want to hear it.

To listen to more of our podcast episodes, visit The #RealtyHack Podcast Page. The #RealtyHack Podcast is also available to listen to on Spotify, Google Podcasts, Apple Music, and your other favorite podcast directories.

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