Lights, Camera ... Lawsuit!

Can Your Photos Get You Sued?

A picture, as they say, is worth a thousand words. Most buyers browsing online listings aren’t going to read a thousand words, but they will view photos of the property. And, as we all know, a video tour can be the difference between a listing that gets shown and one that lingers on the MLS. As such, photos and video have been crucial arrows in the real estate professional’s quiver for decades, and social media outlets like Facebook, Twitter and Instagram help agents reach a wide and ever-growing audience with photos, video and audio. But who owns all these photos and videos? The answer may surprise you.

  • Commissioned Work
Photos and videos fall under the definition of what we in the legal world refer to as “intellectual property”; that is, an original work that someone creates, either by snapping a photo, recording audio, writing something original, etc. When you hire a photographer or videographer (i.e., the author) to create something for you, most often the person you hire owns the work they create. The author gives you a license to use the photo or video for the purpose for which you had the work created, such as listing the photographed property for sale through the MLS. The author, however, retains ownership rights to the work he or she creates. Therefore, always make certain that your use of photos and videos falls within the agreement you have with the photographer or videographer. If you decide to use the photos in a different way or if the new owners of the property ask you for the photos, get permission from the owner of the photos before making a move.

As the market slows down and properties stay on the market longer, you may find yourself taking over another agent’s listing. Don’t simply assume you can use existing photos or video tours of the property simply because you now work for the owner. The photos and video tours likely do not belong to the former agent or the property owner but, again, the creative professionals that created them. Get permission from these folks, or commission your own work.

  • Free Content
There’s lots of free content out there in the ole’ interwebs, isn’t there? Well, that depends. Before you click “save as file” on that beautiful photo of the sun setting over the Bay, remember that you don’t own that photo. Using it for a commercial purpose, such as the backdrop of the homepage of your website, likely will put you on the receiving end of a lawsuit for copyright infringement.

“Ha! I downloaded it from a site that said all photos were free,” you say. I’m sure you did, but did you read the fine print? Did you see where your “free” use of the image was subject to your compliance with Creative Commons? Did you properly credit the image’s author in a manner that complies with Creative Commons? No? Get ready for that lawsuit we just talked about.

“But … I hired someone to put content on my real estate blog; I thought they were complying with all applicable laws.” Most people do, but many content suppliers and social media folks don’t know the finer points of intellectual property and copyright laws. If you’ve hired someone to populate your website, social media accounts and blogs with content, make absolutely certain that they carry their own insurance in case they get you involved in a federal copyright lawsuit.

  • The DIY Approach
So, all this talk of intellectual property and copyright lawsuits has inspired you to simply shoot those photos yourself. “I’ll just be my own darned creative author and own the rights,” you declare as you whip out your phone and snap an award-winning photo of a certain well-known hotel on the beach in Coronado. You’re really going to hate me here, but no sooner than you’ve uploaded the image to your blog do you get a cease-and-desist letter from the hotel’s legal department because you’ve used their likeness (also protected intellectual property) in your endeavor.

Where can you point your camera if everything is protected? It’s a thin line, but likenesses that somebody else owns, such as hotels, buildings, even houses, can only be featured “incidentally” in photos that are used commercially. This means that you can take a photo of the beach in Coronado and part of that famous hotel or landmark can be in the photo if it’s merely incidental and not deliberately the main focal point. Again, it’s a thin line, so tread cautiously.