Photograph and Video Transfers to Third Parties
The next step in the entire process is transferring the photographs and videos to a third party site.
There’s not much point walking around with them in your briefcase. Unless they can be uploaded to the internet, they are not of much value.
So, where might they go:
1) 1) MLS, both local board and CREA,
2) KIJIJI,
3) Craig’s List,
4) Google sites,
5) Facebook,
6) Instagram,
7) Pinterest,
8) Various external sites,
9) 9) Brokerage’s website(s), and
10) Your own personal site and one you have created for this listing.
The difficulty here is that to some extent, you have lost control. You have agreed to the “transfer and use” provisions of each of the third party sites, and other than #10, you have no control. Perhaps, you just uploaded them without reading the 20 page (in some cases) terms of use.
To the Third Parties, you likely said:
1) I own these photographs and videos,
2) I have the copyright in these photographs and videos,
3) I hold a licence to use these photographs and videos,
4) I have the right to transfer by licence these photographs and videos.
So, if you took the pictures on your own camera, you are good to go. But, if your retained a professional photographer, you might not have that right. What did the contract say? Likely, you don’t know, since that was just another contract where you didn’t read the fine print.
Most contracts would provide restrictions in favour of the photographer.
Many Third Party sites (including MLS in certain boards) require the transfer of ownership and the permitted continued use in the public domain. That’s means, that once they are gone, they are “gone”!
This little situation could place many agents in a rather precarious situation. They never acquired the right to re-licence the photographs and videos, but they did.
And, one more problem, after the deal closes, they want to take down all the pictures, but they can’t. Furthermore, they can’t require anyone else from using them. So, who has that right? The photographer, that’s who! You have to get the photographer to sue you for improperly and without authority transferring the material, and then they can sue the Third Party too, and prevent others from using the images.
Brian Madigan LL.B., Broker
Comments(2)