Entries from January 2020

  • January, 2020
  • Copyright, is your marketing above board?

    Many, if not all real estate agents use photographs to help promote the properties they are marketing. However, it is important that the right precautions are taken to ensure that agents do not expose themselves to unnecessary legal risk due to lack of knowledge regarding the relevant laws.

    Matt McCormick, founder of McCormicks Law , in Brisbane explains,
    “A person or other entity seeking to use a photograph, especially for a commercial purpose, should ensure that they have the appropriate permissions before using the work.”

    Under the Copyright Act 1968, copyright of artistic works, such as photographs, generally resides with the author (photographer) unless agreed otherwise or an exception applies.

    In the context of images used to promote the rental or sale of property, most photographers license the exclusive use of the images for the duration of the respective listing to the real estate agency. A real estate agency that has licenced particular photographs may also have an implied licence to make reproductions of the photographs and to use them on several mediums, provided the use of those photographs complies with the agreed commercial terms. However, once the property is rented, sold, removed, or no longer listed with the particular agency, the license for those photographs most likely expires, meaning that those images cannot be used for additional listings or other commercial purposes.

    “It is important to understand that the ownership of a particular work has not necessarily been transferred because payment has been made for the use of that work. If it is an employment relationship or for a private or domestic purpose, then this might be the case, but in a commercial context where a photographer is contracted to take photographs for a particular purpose, it is likely that those images have only been licenced (and paid for) for that particular purpose. It is important to note that this may vary based on the particular circumstances between the parties, and may also be modified by an agreement between the parties.” said McCormick.

    Some real estate photographers take a rather “laissez faire” approach to their rights, creating a situation where agents and principals assume that photography is like buying a shirt. The idea that ‘I paid for it, therefore it is mine’ is a common misconception.

    Rather than buying a shirt, photography is similar to catching a taxi. When you take a ride in a taxi, you do not own the car and your subsequent rides are not automatically paid for as part of a previously paid fee. When you pay for photographs, you do not automatically gain ownership of the photographs or the right to use those photographs for subsequent purposes.

    Photography pricing will generally include two components: the first component compensates for the effort of turning up, fixed costs and a fee for skill similar to the flag fall fee for a taxi ride. The second component related to the usage of the images much like the kilometres driven by a taxi. In commercial photography, the second component will generally cost more than the first component. Charges are usually calculated based on how long the images will be used, what geographic regions it will be seen in and what media use is required (print, web, billboards, TV, etc).

    In real estate, most photographers will simplify the charges and provide a fee based on the images required and the fact that it is obvious that the images will be used to market the home on the web, newspaper and signboards and will likely only be required for the life of the listing (which is often less than 3 months).

    So what are the potential penalties for not seeking permission to use the images?

    Essentially if a copyright owner’s rights have been infringed, they are entitled to seek relief based on that infringement. While there are a number of avenues for relief, in a commercial context it is likely that a photographer would want to seek damages as a means to help remunerate them for the use of their work.

    Most real estate photographers will be happy for the Seller/Landlord of a property to have a copy of the images of their property; however some Seller’s may be under the misconception that they own the images taken of their property because they paid a real estate agency for the marketing costs of their property. However, the licence obtained by the real estate agency for those images will not usually allow for the redistribution, transfer or use of those photographs to another person.

    Therefore problems may arise if a Seller/Landlord wishes to use the photographs for another purpose. This could occur where a Seller/Landlord changes agents, decides to delist the property or relist it for rent using the same photographs. If photographs of the property are to be used for another commercial purpose, additional permissions (and payment) will most likely be required.

    It may be prudent for principals to train their team in order to avoid the hassles involved when someone calls and says, “Sorry to bother you but I think you are using my images without permission!”

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