Attorney Steve® Photo Infringement News for Real Estate Professionals
My law firm is a boutique intellectual property law firm with a strong focus on copyright issues, including photographs and drone videos. We are seeing more and more disputes involving the use of unlicensed photographs. I wanted to set forth a few things I am seeing lately and provide a few general tips.
1. All images are subject to copyright (even if you do not see a copyright symbol on the photo or video). Typically, it is the one who shot the photo who has the rights. If you want to use that photo/video then you need to get permission, or a "license" as its called. If you do not, and you post a picture on your brokerage website, or on a social media channel like Instagram or Facebook, you need to realize you are opening yourself (and potentially your broker) for a copyright infringement demand letter. So, always make sure all images you use are properly licensed.
2. If you are hiring a photographer or drone videographer to do a photo shoot of a home, apartment, office building, even land, you want to make sure you have a contract in place that explains WHO OWNS THE COPYRIGHTS. This can help you avoid problems down the road.
3. If you have an employee of the brokerage taking the images, this can be deemed a "work for hire" giving the brokerage the rights since the employee is doing it as part of their job. But again, always try to put this in writing in your employment contracts and employee handbooks for example. This can also prevent unwanted problems from popping up.
4. Also, make sure your CLIENTS understand who is getting the copyrights. For example, disputes can arise where the first listing broker takes the listing, has photos or drone aerial footage shot, and then the seller later FIRES the broker and wants to use the pictures that were already uploaded to the MLS. Do you have a disclosure or contract term in place that makes clear to your client who owns the photos? Putting this in a clear and unambigous writing can save you time and money down the road by being able to clearly point to the person or entity that owns the rights to the photos.
5. The same goes for architect plans. These can also be subject to copyright protection, and many architects routinely copyright their creative designs and blueprints for the same reason as discussed above. If they are fired, they want the rights to their work and not to let others use it for free. For this reason, these contracts and disclosures need to be well-thought out and executed in advance.
6. I have seen photo infringement cases that can cost up to $7,500 or more for just ONE INFRINGEMENT. So, this is a very serious issue to consider and if you end up in court, you could face not only paying your own attorney fees, but those of the other attorney if they are deemed the "prevailing party."
7. The best time to scan your online media for potential violations is NOW before an issue arises. I have represented brokers that have had to take down most of the pictures on their website (after paying a settlement fee), to make sure they are not subject to future litigation. Check all your social media.
If you find yourself in a copyright photo or video dispute, contact us for a free consultation at (877) 276-5084. We have helped hundreds of clients sort out these sometimes complex legal issues.
Steve Vondran, Esq.
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