Who Owns Your Property Photos?

Listing content fuels the real estate industry, and displaying photographs of real properties online is now a vital part of the real estate professional’s marketing plan. Sellers use photographs to market properties, and buyers rely on those images to select which properties to visit. MLSs distribute property listings through proprietary databases that include the listing photographs. Moreover, MLSs in turn often license their property listing databases, including broker-provided photographs, to third-party portals, such as realtor.com®, and other websites and vendors.

Improper use of listing photographs, however, can create legal problems for agents, brokerages and MLSs. Authorship and ownership of photographs within the real estate industry is “fractured”. Who authored the photograph and who can use what photograph and in what way varies across the industry. Listing photographs may be taken by homeowners, real estate agents, MLS or brokerage employees, or professional photographers. Photographs may be owned or licensed to different parties in a variety of ways. A misunderstanding of how you may use the photographs for property listings could make you vulnerable to a copyright lawsuit.

For example, copyright infringement of listing photographs is central to the recent lawsuit VHT, Inc. v. Zillow Group, Inc., 918 F.3d 723 (9th Cir. 2019). VHT purportedly retains ownership in the listing photographs and only grants non-exclusive licenses to brokers to use the photographs solely in connection with marketing active property listings. In the complaint, VHT alleged that Zillow used VHT’s photographs without authorization in connection with “sold” properties and on Zillow’s home design website, “Digs.” After a jury trial, a judgment notwithstanding the verdict and an appeal, Zillow was found to have directly infringed VHT’s copyright as to photos that were displayed and searchable on Digs; the amount of damages is still pending. However, one of the primary reasons that Zillow was not found to have directly infringed the listing photos on Zillow’s listing platform was VHT’s inability to produce signed licensing agreements with the various listing brokers who provided the photos to Zillow.

It is crucial to know what rights you own in photographs and how those rights permit you to use the photographs. To reduce your risk of copyright infringement, you should:

Review photography agreements to assess what rights were granted or conveyed;
Audit your use of listing photographs to ensure compliance with the relevant agreements;
Determine how you will use photographs and ensure future agreements permit those uses; and
Maintain records of all photography agreements.

Sample Agreements

In order to assist members and member firms, NAR Legal Affairs created Work for Hire, Assignment, and Executive License sample agreements, which should be modified as necessary to fit your particular needs.

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