Sometimes we’re asked if copyright infringement is more common in certain areas of photography than others. Image theft occurs in every field, but we’ve been surprised at how often it occurs in real estate photography. According to our case management team, over 7% of all infringement cases we handled this year alone were connected to real estate.
Is there a reason for this? We took a look at some of the worst infringements in real estate photography and identified three reasons why real estate photographers have their images stolen more often.
Reason 1. Underappreciation of the work: “It’s just a picture of a house”
When people hear about real estate photography, they usually think, “Oh, you mean pictures of houses?” This attitude is reflected in the infringement rates.
People would hesitate before misappropriating Eisenstaedt’s V-J Day in Times Square, but many wouldn’t think twice before lifting a photo of a suburban home.
Yet these photos often require as much time, effort, and creativity as work you’d find on a gallery wall.
In his book Photography For Real Estate, Larry Lohrman, renowned author, blogger, and real estate photographer with over 30 years of experience, outlined just some of the challenges real estate photographers face to produce one “picture of a house”:
- You use a wide-angle lens [...] since you are frequently shooting within constrained spaces. [Note: price of a high-end wide-angle lens normally reaches $1,000 and higher]
- You are faced with lighting problems that are more challenging than when shooting outside or in a studio [...] You often exceed the brightness range capabilities of your camera when you try to include bright windows and a dimly lit interior scene in the same photo.
- You often shoot under tight time constraints, having only between 1 to 2 hours to shoot a house.
Creative work set aside, photos are often what make the sale in real estate.
Research of National Association of Realtors (NAR) shows that as much as 87% of buyers found online property photos essential for the purchase.
Conveniently, even giant corporations seem to forget about this. Just ask the Today Show, which earlier this year was sued for using the set of photos of ‘tiny house compound’ without permission on air. The story of “Bestie Row” built for long-term best friends went viral, and Today Show was one of the many sources that covered it.
However, when it came to crediting the photos, they put the name of an architect ("Matt Garcia Designs") instead of Alexander Stross, the actual photographer who took the shots.“We approached the Today Show about its use of my photographs and after receiving no response, eventually filed suit," commented Alexander.
We’re not always right, but we venture to guess that this would not have happened to Ansel Adams.
Reason 2. Real estate agents and brokerages treat MLS’s as an “open buffet” for images.
Real estate brokers rely on MLS (Multiple-Listing-Service) databases to find and market properties. They serve as the primary data source for agents and often hold a regional monopoly -- if it’s not on a MLS, the home might as well not exist. With MLS being the only game in town, photo thieves need to only access it to take a pick of the photos they like. As it happens, the MLS design makes infringers’ job almost too easy. Here’s why:
- MLS doesn’t usually provide any protection against scraping or downloading. In most cases, a realtor can just right-click a photo he likes (according to this poll, they have a wide choice of at least 25-30 photos per listing) and use it later.
- Photographers are almost never credited in the listings.
- Most MLSs remove photographers’ watermark, substituting it with their own. While watermarking might not be the best way to protect your photos, it can add an additional layer of protection to your work. Real estate photographers are stripped of this right.“My local MLS here in Oregon actually puts their own copyright notice on listing photos when they are uploaded. Even though the agent agreed to my TOS that said that I retain the copyright, the MLS puts a copyright notice on all photos uploaded to the MLS,” says Larry Lohrman on his acknowledged real estate blog.
- Many MLSs claim to own the copyright for the uploaded photos, when, in fact, they are just licensed to use and syndicate the photos for the duration of the listing.“The [MLSs] that are claiming they own the copyright are doing so to protect [themselves] from people that may sue them for having [their] photos stolen from their sites or sites they syndicate to,” explains Lohrman.
Thanks to the facilitated MLS access, last year, Zillow home improvement website were able to grab the photos of already sold properties and use them to advertise design elements displayed on the photos.
Redfin real estate agency seems to follow the same code of conduct. Just recently, already mentioned photographer Alexander Stross accused them of using the photos of sold properties to make additional sales.
“Redfin, through its comprehensive website, has made the photos and data available for its users to ‘play’ with, while also using the photos to keep people on their website and to translate those users into leads,” says Stross.
It’s not surprising that a realtor would understand the higher value of professionally-taken real estate photos. After all, (ironically enough) Redfin themselves estimated that homes with professional photos sell at least 21 days faster and for more money (we’re talking anywhere between $934 to $116,076) than the ones with the point-and-shoot images.
The problem is that with the easy access to photos through MLSs a realtor don’t bother asking for photographer’s permission.
“Redfin sets a bad precedent,” explains Stross. “The environment they have created is one where people do not know (or care) what they can and cannot do with other people’s work.” Which brings us to Reason 3.
Reason 3. Some agents just don’t care.
Let’s be honest. We can give some real estate agents a benefit of a doubt and say “Oh, they just didn’t know any better!” But, in fact, most of them DID know and just decided to take advantage of someone else’s work anyways. In answer to our request, National Association of Realtors commented:
“NAR offers its members extensive education and information for securing copyright registrations, enforcing those registrations, and ensuring agents’ own use of photographs and digital content is proper under the law.
”While there’s no clear mention of ‘copyright’ in the NAR’s Code of Ethics, its very first article reads:“When serving a buyer, seller, landlord, tenant or other party in a non-agency capacity, REALTORS® remain obligated to treat all parties honestly.”
Where does that “honesty” go exactly when an agent decides to lift someone else’s photo?
Frank Llosa, realtor and a photographer, summed it up nicely:
“Today, [Realtor’s name] stole my photos. Not only did he steal my photos, I emailed him a month ago to take down the photos. He got the email and ignored it (he told me that). His excuse was that his client emailed him the photos. Um! So when I tell you they are stolen, you are just going to keep using them?”
What can be done to change the current situation?
Educate the client.
While many brokerages and real estate agents are well aware of the line they are crossing when misappropriating the listing’s photos, some deserve a good faith effort.
“It mostly comes down to educating the client. Many realtors assume that they are paying for images outright, and delivery of images means they now own the copyright. Just educate them about copyright law (can be a 30 second conversation), and they’ll get the point,” says Jeff Morris, Denver real estate photographer.
Educate yourself and other photographers.
Often photographers are not aware of their rights or of the means to protect them.
“Photographers often do not know that their work is being exploited beyond the scope of the licenses they issue, or don’t have the resources to protect and enforce their intellectual property rights in their photography,” says Alexander Stross.
Make sure to check carefully your license agreements, copyright policy of your local MLS, monitor where the images you upload end up (you can always use Pixsy for that), and be smart in your client communication.
“I still have a blanket agreement for all my clients stating they acknowledge that I retain full copyright of all images provided to them. It ensures that ignorance is no excuse,” notices Jeff Morris.
Make sure to register your work with the local copyright office.
Registering your work (for the US, it’s with U.S. Copyright Office) makes it much easier to prove the authorship of the photos should any copyright dispute ever occur. However, according to this poll, the majority of real estate photographers don’t bother registering their copyright or even relicensing the images to kindly remind the agents and other parties they are protecting their work.
Do yourself a favor and register your work today. Bonus: it will make the lives of infringers much more difficult.
“Having experienced this myself and reading many times from others who have also had to deal with legally questionable MLS practices, I have sadly come to the conclusion that this will not end until someone or some group files a successful lawsuit against these offending MLSs. My hope is that it won’t end in enormous damage rewards but will get NAR, the FTC, or some other [government] agency to develop a uniform MLS policy which protects the rights of the independent photographers […] as well as the data the MLS feels it has a need to protect.”
The level of copyright infringement in real estate photography is devastating. However, the change won’t happen unless real estate photographers learn their rights and people outside of the photographic community learn to respect them.
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