Real estate photographers need to be cognizant of what rights they are giving up vs. what rights they are retaining when delivering photographs to their clients. Today’s lesson thus focuses on the intersection of contract and copyright. And while this is a valuable lesson for all professional photographers, it is particularly relevant to real estate photographers given how often realtors, brokers, and other businesses seem more-than-happy to infringe their photos.
Let’s start with the basics. Who owns the copyright in photographs created by real estate photographers? Generally speaking, the photographer does (unless you signed a work-for-hire agreement that specifically provides for transfer of ownership to your client). From the moment you press the shutter button on your camera, you own the copyright in the photograph you created (congrats!). Keep in mind that owning the copyright in a photograph and registering the photograph with the US Copyright Office (which we strongly recommend all professional photographers do) are two distinct concepts, but that’s a lesson for a different day.
Ok… I own the copyright… blog over? Not quite. Real estate photographers are typically hired by real estate agents/brokers to capture interiors, exteriors, aerial shots, photographs of local landmarks/places of interest, etc. They pay you a fee, and you deliver the photographs to them (often after spending hours editing such in Photoshop or Lightroom) for their use.
But what terms (if any) should you include on your invoices and/or delivery e-mails to your clients? And why does it matter? One question at a time, people. Because you own the copyright in your photographs, it is important to consider invoice terms that dictate what your client can do with the photographs, how long he/she can use them, and perhaps most importantly, who he/she can provide the photographs to.
Here’s an example. A real estate photographer is hired to create photographs of the interior of a condo in addition to exterior shots of the building (using his nifty drone to get beautiful aerial photos). Because he wants to please his client, he also throws in some photos of a local stadium and nearby park.
If the invoice to your client has his/her name, the price, and nothing else, your client arguably could use the photographs to sell 100 other properties (especially the aerial, exterior, and local landmark photos). And maybe the condo doesn’t sell or a different agent is hired by the owner and asks your client if he/she can use the photos… sure, why not? It’s not like I’m restricted by any invoice/contract terms that would prohibit me from sharing my photos with you. This, unfortunately, is not a hypothetical. It happens all the time and, when it does, it takes money out of your pocket.
If only there was some magical spell you could cast to stop this from happening. I forgot my robe and wizard hat, but I did bring my law degree. If you want to limit the use and/or distribution of your photographs, put language in your invoices and/or delivery e-mails that accomplishes such. Make sure to state that all rights, including copyright, remain your sole and exclusive property. Include a statement that the photographs are non-transferable and may not be provided to or used by anyone other than your client (you may even want to identify specific examples like architects, sellers, buyers, magazines, and others who may want to use the photos).
Here at CopyCat Legal, our lawyers regularly represent real estate and architectural photographers in developing strategies to protect their works and, when necessary, enforcing their copyrights against infringers. If you have questions about invoice terms and how to protect your copyrights, we’re standing by to work with you. An ounce of protection goes a long way, and it all starts with the contract terms that real estate photographers choose to include (or not include) when providing their finished product to clients.
Disclaimer: The information contained on this blog post is provided for informational purposes only and should not be construed as legal advice on any subject matter.