Understanding Photography and Copyright Law

How well do you understand copyright low and how it pertains to real estate photography?

Here's a story about a guy named Dan, who took a photo he found on Google Images and used it as his own, when the photographer noticed he was successfully able to sue, and Dan found himself paying $37,000 in court fees and usage rights.

Most people would experience this and say something along the lines of:

"I should have known better, it was my own fault and I will be much more conscientious in the future.”

Not Dan, here he tries to explain why he feels he is the victim:

As of today that video has had over 200,000 views, and continues to grow. Here's Dan's overall opinion:

"To put it into context, the reason I was sued was because I used a picture that I found on Google Images. Now, I should have known better, yes, in my position I should know better. But, again, I never really thought that there are malicious people out there that maliciously put pictures on the Internet.

It never ever said on the images that it can't be used or anything like that."

The internet is a huge space of information, and when people are sitting at home, largely unmonitored, it is not uncommon to mistakingly think anything is free for the taking.

People write their own content and share articles, they share their own photos and promote products and services.  This creates a lot of content for one user, or one business, and they shouldn't have to have a Terms and Conditions disclaimer below every image just to let someone know they're copyrighted.

Dan goes on to talk about using images from search.CreativeCommons.org where he says:

"These images aren't going to be the best, they're not going to be super, super amazing images that are super high quality, but then you're also not allowing yourself to be open to vulnerable attacks.

Now the reason I was open to a vulnerable lawsuit like this wasn't because I used the photo, okay. Because let's face it, I'm one of millions of sites out there that are going to Google Images and going and getting images, and guess what? I still do that with little graphics here and there. So it didn't deter me from still doing it, it's just that there are people out there who will target you maliciously and go out and sue you for what you have."

Not surprisingly, Dan is positioning himself as the victim in this situation, when the law states that the photographer is the true victim, and that the photographer is simply asking to be compensated correctly for the work that they have created.

Dan does acknowledge that the free images from Creative Commons aren't very good, and seems to go on to suggest the images on Google Images are better!  He also seems to recognize that the reason they are on Google Images is because they were originally posted by a photographer or some other business selling products and services. In other words, the images someone has taken professionally, or had taken professionally, is the good stuff.  It doesn't occur to Dan that the good stuff should be paid for, as with any kind of quality work, and unfortunately this is a common misconception.

So what are the specifics of copyright law when it pertains to real estate photography?

Generally speaking, there are two common situations that trip people up:

  1. When an agent takes over a property listing and continues to use the images they haven't paid for, or takes images of a common area from around the property in a similar manner. So without consulting the photographer, they'll use images of the pool, exterior, or aerial shots without first consulting the photographer who produced them.
  2. Agents will find images of landmarks around a property such as a river, park or playground, and add them to their own listing.

Both these situations constitute breaking the law, because quite frankly, they are stealing. It is as if they walked into a studio, took the photos off the wall, discretely shoved the photos into their bag and quietly walked out again. It might not seem that way to that agent, but that is what they are doing.

What are the steps a real estate agent should take to ensure they are not breaking the law?

There are two options for using images legally and avoiding the headaches listed above:

One is to take the photos yourself.  Of course, you may end up with lower quality images like we spoke of earlier when referring to Creative Commons.  Many realtors will use this option, but unfortunately most aren't professional photographers and the images will end up lesser quality.

The other option is to hire a professional photographer.  This not only gives you the images you need, but also the permission to use them for an agreed upon period of time.  Just be aware of your limitations for use, and don't hesitate to ask your photographer for any clarification.  If you need to use the photos for any other reason, be sure to let your photographer know and you can work out an agreement that meets your needs.

Why is there a time limit on how long I can use a photo I paid for?

In order to keep photography for real estate prices low, photographs come with a limited time frame in which they can be used.  You can buy the rights to use an image indefinitely, but it will likely cost more up front.

To help you understand, photography is a media much like music, television, and movies. Let's say you go to the store and buy a newly released movie on DVD. Are you allowed to then make copies of that DVD and sell it to others?  No, it is widely known that you can't legally make copies of a DVD.

In the same respect, are you allowed to broadcast that movie online, or upload it to YouTube? No, you can't legally share a DVD in that way, as the content is for personal use only. Being "personal use only" means you can invite a few friends and family members over to watch it, but you can't buy a DVD for $15, then setup your own network to the public, using someone else material. If you want to broadcast a movie, then you have to pay more for it up front, because you're going to make more through advertising and promoting your network. In other words, that movie has more value to a TV network owner than it does to a family in the suburbs, so it's only fair and reasonable that the TV network pays more for it.

How does this relate to photography?

Well, if you're only going to be using a photo for three months to sell a home, then you'll be paying the lowest possible rate, because of that limited time frame you'll be using it.

On the other hand, if you would like to use a photo for a few years to promote yourself, then the time frame increases, and the photo becomes more valuable, and thus the reason for the higher price.

So why do photographer charge more for what they call, "extended licensing"?

Video photographer Thomas Kuoh explains in more detail here:

Here are some important points Thomas makes:

"Why don't I charge one fee and then do the work and then everybody can use it for free?

Number one is that it's not fair for the person who paid for the licensing for the commissioned shoot.

Number two, if my client doesn't want anyone else to use the photos they will pay a "buy out fee". And that potential "buy out fee" is enough to make up for any potential loss of income for additional licensing.

So in essence I'm saving my clients money. I'm spreading the cost of that photo shoot out a little bit."

Keep in mind most photographer are small business owners, and they have to charge accordingly in order to continue being able to cover expenses and make a living (this may be surprising to some, but photography equipment can add up quick!).

In the same way a musician does not get paid every time a song is played, a photographer doesn't get paid every time a photo is used.  So they must make their money in the initial transaction.  So if someone wants to use a photo forever, or make a photo freely available, then the photographer must charge a very high initial fee.  In order to keep the cost down, particularly for industries like real estate, the photographer limits the amount of time a photo is to be used.

Think of it like going for a drink at the bar - unless there's an event on, you're not usually going to pay $100 and then get unlimited drinks.  Reason being, some people want to drink a lot, and some only want one. So each patron is charged a small fee for every drink that they buy. Photography licensing works in the same way - each individual who wants to use a photo pays a smaller fee, depending on how long they plan on using it.

In the video above, Thomas continues with:

"Why wouldn't I want to let (a third party) use the work (without paying extra)?  Well, it depends. Is the benefit the same for you as it is for me? If you're a business and wanting to use my work to market your business then perhaps it's not a direct return on investment, but having high quality photography on your site builds trust with your clients and they feel more comfortable buying from you. So there's a value there. I'm providing value to your business, and of course I appreciate any free advertising I receive, but that should be in addition to the proper licensing and not instead of."

So again, if the client, let's pretend it's an interior designer, wants to use the photo forever, then the photographer is going to charge their top rate. However, if they only planned to use that image for a year then the photographer would charge them significantly less, because the image now has less value for the designer.

Another analogy Thomas used is the difference in value of a photo sitting on the shelf in a closet, versus one on the cover of Time Magazine.  It's going to be the same image, but in one instance it's sitting in the closet with no one looking at it, and the other it's being seen by millions and potentially making someone a lot of money, thus having more value:

"No matter what there has to be a "win-win", and it's all about a negotiation.  So if I can help another business grow, then I will have a client for life. And if your photographer has that mindset, then you're golden."

Hopefully this gives a clear understanding of how photography licensing works.

However, if not, then that's ok too - just remember it works in the same way as music and DVDs.  You can't reproduce and do whatever you want with either of those, and the same goes for images created by any photographer other than yourself.

Resources:

What is copyright law?

USA:

Click here for a description of copyright law in the United States of America.

And for a simple explanation, here's something from the Professional Photographers of America:

  • Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation.
  • Photographers have the exclusive right to reproduce their photographs (right to control the making of copies).
  • Unless you have permission from the photographer, you can't copy, distribute (no scanning and sending them to others), publicly display (no putting them online), or create derivative works from photographs.
  • Copyright infringements (reproducing photos without permission) can result in civil and criminal penalties.

or have a look at this video for a simple explanation of the copyright law in the US “Copyright Basics"

Australia:

Click here for a description of copyright law in Australia.

Canada:

Click here for a description of copyright law in Canada.

United Kingdom:

Click here for a description of copyright law in the United Kingdom.