Between the seller, agent and photographer the law around who actually owns photos commissioned for a property sale is not well understood. Agents and Real Estate Principals may be exposing themselves to copyright infringement liability or claims for compensation by photographers and/or home owners.
Photographs of homes for sale are now a given in the selling process. But who owns those images? And if the property comes up for sale again with the same agent can they simply re-use the images to avoid the delay and expense of having to commission new ones?
Increasingly our Intellectual Property and Property + Commercial Law teams, are seeing examples of situations where sellers (or their agents) are using images of a property without permission.
When a photographer is engaged to take shots of a home for sale, unless an agreement is signed transferring ownership in the work to someone else, the photographer retains ownership in the images and the seller obtains a licensed right to use those images for that sale transaction alone.
The agent is simply using those images on the seller’s behalf. Again, if there is no agreement in place to the contrary the agent has no ownership of those images at all.
Some legal background
The Copyright Act 1968 (Cth) protects a range of materials including photographs. A photograph is protected automatically from the moment it is taken.
There is no need to register for copyright protection in Australia, nor does an owner of copyright in a photograph need to give notice of a claim of copyright. The symbol © is the notification used when claims of copyright are made, as well as the name of the owner and the year the photo was taken, but there is no formal requirement to do so in order to claim copyright.
And if the photographer does not enter into an agreement with someone to transfer ownership of those images the photographer is only providing them with a licensed right to the use of the images.
One potential scenario
Mary and Bob ask Mitch, a real estate agent working for Selling Is Us, to sell their home. David and Betty are the Principals of Selling Is Us. Mitch gets a photographer, Rachael, to take some professional shots of the home, staged for sale.
Rachael charges Mitch $220 for the images, which Mitch pays and passes on as an outlay to Mary and Bob along with realestate.com.au advertising costs. There is nothing in writing between Mitch and Rachael, nor between Rachael and Mary & Bob. Everything is done in a hurry and by phone call.
2 years down the track, the buyers of the house decide to sell and contact Mitch because he was such a good agent to deal with. Mitch asks administrative staff in the Selling Is Us office to help put the listing together so he can focus on sales. They find the images in the system from a few years ago, and decide it will save everyone time and money if they just use those for the new marketing campaign.
Original owners Mary and Bob find out about this, and are upset that their images are doing the rounds again. They take offence and contact Rachael. Rachael knows exactly what the law is regarding retention of copyright in the photographs she takes.
While the value is relatively small, Rachael, who might consider it important to prove a point, decides to make a claim against David and Betty as owners of Selling Is Us.
David and Betty are annoyed at the claim and blame agent Mitch for not paying closer attention to how his listings are done.
Mitch is annoyed and recommends to all his agent friends that they no longer use Rachael for photographer work.
In a community where “everyone knows everyone” the story of the photographs becomes public knowledge and everyone involved finds their business reputation and community standing damaged.
Protecting your business
If you are involved in a business that regularly uses commissioned photography, particularly real estate agencies, it would be worthwhile ensuring every member of your team understands the legal ownership of photographs and exactly how they can be used.
Implementing the right procedures to ensure you don’t purposely or inadvertently use images that you may not own or have a license to use is critical.
This article was written by the Intellectual Property Specialist team at Clifford Gouldson Lawyers and has been republished with their permission.