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Copyright Primer
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Having had a couple of infringement issues this year, and having just had a weird experience myself with a (sort of) stolen image, and then hearing from Ekday about how an agent essentially mugged him, re-selling his images, I thought maybe we'd better get our collective heads around this issue.
This is the sort of topic that gets recycled pretty much endlessly over on the Photography Business Forum:
www.flickr.com/groups/photobusinessforum/
and the Pro/Semi Pro Forum:
www.flickr.com/groups/procorner/
As a photographer, professional or otherwise, YOU OWN the copyright to your images. It's automatic, you really have no say in the matter, the default position is "copyright (date) John Doe".
When you "sell" your images to an agent, you aren't really "selling" them at all, unless you have a very specifically worded signed agreement stipulating a transfer of all rights. Needless to say, you should never sign such an agreement for less than several thousand dollars, and maybe not even then.
For one thing, most of us don't own "all rights" to the images in the first place. Do you have a signed property release for every house you shoot? I don't. But if your client thinks they have "all rights", what's to stop them from using those photos in any number of ways objectionable to the homeowner? Unrealistic, you say? What if, as in Ekday's case, your client re-sells the images to a third party. Are you sure you know what will happen then?
So first and foremost, it's good to strike the word "sell" from your vocabulary. Instead, start licensing your images. My RE license covers any usage directly related to marketing the property, for the life of the listing with my client. When the house closes escrow, the license terminates. If they lose the listing, the license terminates. If the seller pulls it off the market, the license terminates.
This is also why RE photo prices are so much cheaper than "regular" photography rates -- the license is so short-lived.
Here is what we should all be doing to protect ourselves:
1) Make sure your copyright info is embedded in the IPTC data.
2) Use the word "License" with your clients, and have a conversation with them about who owns the copyright (and thus the photos). Make it clear that they cannot give your photos away to the seller, builder, etc. You should be in control of who licenses your work, and for how much.
3) Make sure your invoices have EULA text on them. I use a short boilerplate paragraph that spells out very generally what is licensed, to whom, and for how long. Never changes from invoice to invoice, so I can just cut-and-paste it in. For most of us, this is the only piece of paper we have connecting us with our clients, so this is important documentation.
4) Register your copyright. You can register images in bulk, it's pretty cheap, and it's VERY important if you actually end up in court someday. Even though copyright is automatically yours the instant you press the shutter, you'll be much stronger in court, and if you want a lawyer on your side, you'll need to have done this or they'll laugh you right out of their office.
Above all, DO NOT just bend over and take it - defend your rights!
Originally posted at 2:33PM, 22 November 2007 PDT
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Scott Hargis edited this topic 55 months ago.
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Hope this doesn't sound too preachy....
Posted 55 months ago.
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Not preachy - perfect! I think this is a much needed topic here. We've had discussions here related to this, and in my case, I knew what was going on around me, but didn't have the time to deal with it. Of course, in the end, I'm left feeling like a tool for not standing up for myself, but sometimes the school of hard knocks is the best form of education.
You got me curious though, Scott. You said, "Make sure your invoices have EULA text on them. I use a short boilerplate paragraph that spells out very generally what is licensed, to whom, and for how long."
This is my biggest downfall, and the reason, I think, what happened to me, did. As I said in the other thread, I had a discussion about licensing with my client, but nothing more. I give my invoice at photo delivery, and I don't have them signed, or acknowledged in any way. In your opinion, does the acceptance of payment on the invoice equal acceptance of the terms ON the invoice? Does that have any chance of holding up?
Posted 55 months ago.
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Also, thought I would put this link here:
www.flickr.com/groups/procorner/discuss/72157594190929874/
It's from the "Pro Corner: Semi-Pro and Professional Photography / Photographer" group and has a large amount of info on copyright laws, etc.
Posted 55 months ago.
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Scott,
I greatly appreciate you taking the time to pass on this information to us. It's very relevant and I've encountered issues with this in my business. And it helps for me to know more about this. About to dig into the The buisness of photography book this winter.
Mark
Posted 55 months ago.
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Scott,
How does one deal with some MLS services that seem to take over rights to photos?
I don't think I have this problem here, but just in case.
A few weeks ago, a property we sold 6 months ago came back up for sale by the buyers agent. There were my photos in the MLS, the franchise website, and on Realtor.com.
I happened to be the one to attend the original closing so I met the agent previously. I phoned him and politely asked him to remove them and he said sure but asked for a day or two since it had been raining since he listed it.
He removed all of mine and put up his own as promised. It was probably better for him since mine were shot back in the pre-strobist days. Not the worst, but not great.
Posted 55 months ago.
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Nobody can "take over rights". Any sub-licensing (in Australia at least) has to be in written form.
What you may find however, is your agent has handed over some photos to "MLS" or someone else and have "agreed" during upload that they own the photos (mistakenly). This may cover MLS, so if you sue them, they then proceed to sue the agent to recover the costs. In some cases the agent has already agreed in the fineprint to cover the costs of any law suits.
Whether that fine print is enforceable- I don't know.
What you should be doing however is put a terms and conditions file with every download and every CD supplied-they then have no excuses.
Posted 55 months ago.
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@scott,
NIce primer!
@Malcolm,
I'll have to go research this again to verify it but as I recall the MLS in our area use to have statement in their rules and regulations that the first photo on the listing becomes public domain. I assume this is the kind of thing you are referring to by taking over rights.
Posted 55 months ago.
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I found the paragraph in our MLS rules that as Malcolm says, "takes some photographic rights". I didn't recall incorrectly... photos don't become public domain but almost as bad... members of the MLS get to use them before AND after the sale. The rule reads:
"By submitting photographs to NWMLS, a member warrants that the photographs may be used as set forth herein. By submitting a photograph to NWMLS to be used as the primary photograph for display as such on NWMLS’s on-line system (“Primary Photos”), a member thereby irrevocably licenses NWMLS and its members to use that photograph, during the term of the listing and thereafter, for any purpose related to the listing and sale of the property. By submitting to NWMLS all other photographs, including virtual tours and the like (“Additional Photos”) a member licenses NWMLS and its members to use those photographs, during the term of the listing only, for any purpose related to the sale of the property. Both Primary Photos and Additional Photos may be used by NWMLS and its members, during the term of the listing and thereafter, for off-market purposes, such as appraisals and comparative market analyses. No further license to use photographs provided to NMWLS by a member is intended or implied."
This is not written very well and it's been modified many times but what I think they mean the only use allowed by members after the sale is just by appraisers and for use in market analysis. You can bet that other MLSs have similar kinds of rules.
Posted 55 months ago.
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aaron2005 [deleted] says:
I find nothing objectionable in the NWMLS rules of use. The only hazy loophole MIGHT be if another agent took over a listing and the listing number didn't change and they kept the original photographs up. But I have yet to hear of an agent posting images against the photographer's wishes.
Most people aren't out to scam photographers, they just don't know about copyright issues. Like Scott said above - definitely make it clear to agents that you own the images and that builders, contractors, architects etc may not use the images without your permission. You could be missing out on a lot of money.
Posted 55 months ago.
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While I have not been as savvy and aggressive as would have been in my Commodities trading days (3 years in the Pit) another 9 years working different trading posts around the world. Protecting your rights is tantamount to your reputation and image. I would never let someone accuse me of trading improperly, I take people to task when they use my images without my permission. I routinely see images in advertisements for builders that an agent has given them.
These Images have a limited use and value and for the most part I just remind people who owns the actual rights. If someone is using those images for marketing, I request half of my original invoice - for limited use.
M. James
Posted 55 months ago.
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@aaron - In the MFRMLS (Orlando), the listing number changes when a new agent takes the same listing. I've seen a few times where the new agent will go into the "Taken Off Market" listings, and take the photos from the prior listing. Actually that happens very often. I haven't been the victim of this yet, although I did have an agent steal my write-up for a house. He was selling the same model home as me, about 6 doors down. He decided to "borrow" my extensive write-up, word for word. When I confronted him about it, he said the information on the MLS is public domain. I went to his broker and the Dept of Business and Prof Regulations and filed a complaint. He eventually changed a few sentences, but to this day, his license is clean of complaints. Good ol' politics.
Originally posted 55 months ago.
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Ekday Realty edited this topic 55 months ago.
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@James... Pit Dawg, Rolling Stones fan...I'm building a picture here :-)
Posted 55 months ago.
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Watch out for differences in law outside of the USA. This is from the Canadian Intellectual Property Office's guide to understanding copyright, available here www.ic.gc.ca/sc_mrksv/cipo/cp/copy_gd_protect-e.html#9
"Generally, if you are the creator of the work, you own the copyright. However, if you create a work in the course of employment, the copyright belongs to your employer unless there is an agreement to the contrary. Similarly, if a person commissions a photograph, portrait, engraving, or print, the person ordering the work for valuable consideration is the first owner of copyright unless there is an agreement to the contrary. "
Commissioned work in Canada belongs to the person who pays for it unless the contract states otherwise.
Posted 55 months ago.
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@jon - I think I have reinvented myself 8 times now - and photography and graphics while not the most lucrative to start with has always been the most satisfying and rewarding. This is truly a great profession to be in as it is just birthing right now and there are fortunes to be made in doing it well and competitively.
I am fortunate in that I am for the most part trusted and left alone to get it done - how we get there is no ones business.
Oh and I still trade Live Cattle and Pork Bellies from time to time on the CM - keeps me off the streets.
M. James
Posted 55 months ago.
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@mj we should talk. Cattle trading hits very close to home for me.
Posted 55 months ago.
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Anyone know how to fill in the text file template in photoshop so that it automatically appends your name & contact details into the metadata?
In CS2...
File / file info /click arrow in top right corner of panel / show templates / accesses a blank text file named FileInfoLibPrefs
I wonder what the format is to add info to this blank txt file, which I imagine can then be saved as a template
Posted 55 months ago.
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I just d/loaded info from www.iptc.org/IPTC4XMP/ which should get me going
Posted 55 months ago.
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As they say..."Too Easy!" No need to type directly into that text file.
For a first image, manually fill in the IPTC info panel and use the top right arrow to save it as a template. Open a different image, access the panel, click the top right arrow and choose your template from the list. One click populates the panel with your info.
Posted 55 months ago.
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OK, I think I have a potential problem. Our new MLS director is very proactive and I see how this is an attempt to protect the data and even protect our (as in Realtor) photos from being reused by other Realtors.
However, this goes way beyond the license worst case above and the sample contract in the NAR that has similar wording.
Realtors can log in and see it here, or I can upload it later if needed but it's pretty much "give it all up to the MLS."
www.realtor.org/LetterLw.nsf/pages/thirdpartyindependentc...
There is no way I am giving up my copyright, it means I can't even use the photos on our Point2 site (Point2 tried to pull this and backed off by the way). Technically my work will be done by my corporation and licensed to my wife.
Does anyone have any suggestions? This is in Pennsylvania and I am willing to pursue it. Should I contact Carolyn Wright?
This is from the email today:
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Data (including photos, videos, and virtual tours) when submitted
to the MLS becomes the copyrighted property of the MLS. This is
so the MLS can use copyright laws in its efforts to protect MLS
data from non-authorized users. Also, the MLS does not authorize
members to copy data from other listings in the MLS for the
purpose of submitting a new listing. As professionals, members
are expected to directly take measurements and photos as well as
write their own remarks so data is up-to-date and accurate.
Posted 52 months ago.
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I've thought about this, too. I think getting the MLS to change it's policy would take a push from the Association of Realtors, and the only way they are going to do anything is if they're getting heat from their photographers, which until a majority of them are using a photographer ain't gonna happen.
But how about this:
Upload a slightly cropped image for MLS and let them "copyright" THAT, as a derivative, while the original, uncropped version remains under your copyright, and is used everywhere else other than MLS.
As I mentioned elsewhere, MLS is way, way down on the priority list for my clients, so frankly image quality there is completely irrelevant.
Posted 52 months ago.
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Wow Scott, thanks great for us newbies, so much good info!
Posted 52 months ago.
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My conclusion after researching this issue with the Seattle MLS , the NC MLS and Carolyn Wright is that unless you license your clients to use the "primary photo" (the first photo or exterior front in most cases) to use "during the term of the listing and thereafter, for any purpose related to the listing and sale of the property" that you are setting your client up to violate your license agreement. I think this is similar on most MLSs through out the US because it's a NAR standard. The primary photo is different and should be treated differently in photographers license agreements if you expect agents to use your photos on the MLS.
In short, most agents are currently violating their photographers license agreements without even understanding they are doing it.
Posted 52 months ago.
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Lohrman, thanks for looking into that.
How are people creating the verbage for their EULA? Is there a link to some good text or are people hiring an attorney and drafting custom license agreements?
Posted 52 months ago.
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Larry,
Can you elaborate on that? Why is the primary photo different from the rest of the set?
And how does that licensing text avoid a "copyright clash" between me and the MLS?
Posted 52 months ago.
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Thanks to everyone for responding.
It looks like in my case they want copyright on all the photos. In my case the MLS software is really pretty good and I have not been happy with Point2 lately. Since the MLS has all the houses and not just a subset I have been planning on enhancing that part of the search. Not to mention the number or people we get from realtor.com.
Since it appears that the goal of our MLS is to protect the package of data, I wonder if there is some sort of licensing agreement that would satisfy that, and still allow us keep the copyright.
>>This is so the MLS can use copyright laws in its efforts
>>to protect MLS data from non-authorized users.
Grant the MLS the ability to fight unauthorized use.
Posted 52 months ago.
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@Scott and all,
This is the language that is in the Seattle area MLS rules:
"By submitting a photograph to NWMLS to be used as the primary photograph for display as such on NWMLS’s on-line system (“Primary Photos”), a member thereby irrevocably licenses NWMLS and its members to use that photograph, during the term of the listing and thereafter,"
Someone posted the NC MLS rules and it has an almost identical phrase. My guess is most MLSs have a similar phrase because they are getting it from the NAR.
What it's saying is that when an agent uploads the front exterior photo (primary photo) to the MLS they "warrant "that the photo is licensed to the MLS "for the term of the listing AND THEREAFTER".
The intent is that the photo can stay on the sold listing and be used by appraisers and agents forever. Ever seen a home appraisal with all those spiffy photos of other properties in the neighborhood of the home being appraised? Those are your photos that you took several years ago!
As Carolyn Wright says, the agents are in violation of most of the photographers license agreements because they just don't read and understand the photographers license agreements or the MLS rules.
So my point is if you don't want your photos (primary photo only) used beyond the term of the listing on appraisals and for future listings you'd better not license it to agents because that's what they will do with the photos... MLS rules are setup to violate your licensing agreements.
Agents are caught between photographers needs and MLS conventions.
In the long run this can probably be changed but it's a huge job.
Posted 52 months ago.
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The good news in my case is that the email was sent out in attempt to stop agents from copying photos, and lots of other things like remarks and not taking their own measurements.
There is very little copyright wording in our rules and the listing agreement only talks about license and sublicense. That sample from the NAR needs to go though.
If anyone has any ideas of a model for an MLS to use I'm certain they would be interested. I would think there would be wording that would make photographers and the MLS happy.
Even that statement about the primary photo could be tightened up. The MLS obviously needs a record to keep for historical purposes but they could state that it cannot be used for marketing by anyone else. I would think it could have a heavier watermark after closing, cancellation, or expiration.
Posted 52 months ago.
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I think the way photographers should be lobbying is to treat all the photos the same. That is, they are all licensed for use on the MLS ONLY for the term of the current listing. If the listing agent changes the photos go away. Or if the listing is sold the photos go away. Appraisers and agent doing comparative market analysis can live with out photos!
This even makes sense from the point of view of the MLS and the appraisers because once the home has a new owner the photos no longer are as relevant because the new owner is likely to paint the home or make material changes so the photos will not represent the property.
Posted 52 months ago.
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Does anyone do work for Appraisers? If no, then I doubt that we're loosing any money here. I say let 'em have the curb photo via the MLS system.
It sounds to me like our goal is, is to prevent/educate agents that they have to pay each time and can't pass our images around like cards in a poker game as the listings cycle through various agents who can find a buyer.
I found It takes a long time to copyright a photo and costs much more than I can afford. I also cannot purchase a "running" copyright as one can for some continuous print publications. By the time I get a copyright processed with the feds, the house may have been sold. Is there a better way?
/kt
Originally posted 52 months ago.
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TrinaKelly edited this topic 52 months ago.
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Trina - the copyright is created and belongs to you, legally, the instant your finger presses the shutter button.
Registering the copyright with the US Copyright office gives you added benefits, including the ability to recoup legal costs in the (unlikely) event that you wind up in court over an infringement. It also helps you get an attorney to represent you, since they have a better chance of getting a fee if you're registered.
And it's CHEAP -- you can register an entire CD of images all at once, for $35. There is no limit to how many images you can copyright in a single submission.
Most photographers do it monthly, by burning low-res copies of every image they shot to a disc and mailing it in with the appropriate form.
Read up on it here:
www.asmp.org/commerce/legal/copyright/
And for more info than you can handle on copyright and licensing:
www.flickr.com/groups/lawgroup/discuss/72157600204864389/
Posted 52 months ago.
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