Copyright and Real Estate Images In Australia

It seems like almost weekly at the moment some issue comes up over Copyright of Real Estate Images.

It is a difficult subject to discuss sometimes and there are lots of opinions, some are based on knowledge, others on experience and others just make guesses that they defend as fact.

From the photographers perspective there are various attitudes, some photographers will pursue their rights at every turn, others will only pursue their rights when the mood takes them there and others just don't care. 

This varying attitude by photographers actually harms everyone, it creates a fairly blas'e approach by agents. Because they are used to photographers just not worrying about their rights they just don't think its an issue. When someone comes along and exercises their rights, they become the bad boy on the street. 

The industry is so full of people that do not understand the way copyright works and they are so used to getting away with whatever they think is ok they almost become their own experts on the subject.

So for the record I would like to debunk a few myths about Real Estate Photography in Australia.

The vendor owns the photos because they paid for them.

This is usually not the case, the only time this would be true is if the photographer has assigned the rights to the vendor. I do not know of any photographer that does this but there may be some.

The agent owns the photos because they paid for them.

This is usually not the case, for the same reason above.

The above two statements are pretty common but what the people that say this do not understand is that photos are rarely sold, the copyright is automatically assigned to the photographer when they make the image. 

Most images have 2 components to the fee, 

1. A fee for turning up, experience, skill, equipment and business costs and 

2. A license to use the image based on duration, location and media (print, web, TV, Signboards etc).

To simplify the transaction most photographers just present a fee based on the number of images required but that fee actually constitutes the above two components.

The license duration in Real Estate is typically for the length of time the agent has the listing, which hopefully is until sold. Usually the Real Estate Photographer will be engaged by the agent and paid by the agent so it is the agent that is licensed to use the images not the vendor. The vendor is not a party to the contract or agreement and the photographer generally has no relationship with the vendor at all.

This means, if the agent does not sell the property and a new agent is engaged a new license fee is payable. Personally I generally will not charge a new fee if the vendor had paid the agent for the use of the images. This is my choice to make, others are quite entitled to charge the second license fee. In all instances however it is prudent for the acquiring agent to ensure they know who owns the copyright and permission to use the images has been sort from them. The agent needs to understand that regardless of how they obtain the images only the copyright holder can grant permission to use the images, as above the copyright holder is rarely the vendor or the original agent.

Images uploaded to the internet become "Public Domain" and can be used by anyone.

This is no more true for Real Estate Images then it is for Blockbuster movies. Just because you can gain access to the Images does not mean you can use them without the owners permission. Copyright works will generally become public domain a period of time after the owner dies. In Australia the period of time is 70 years in other countries it will vary.

Images are not protected by copyright because there is no copyright symbol on them.

In Australia this is not required at all, copyright is automatically assigned when the images are taken and is not extinguished because there is no copyright symbol attached. Most digital images will carry copyright information embedded in the metadata. It is the responsibility of the person wanting to use the images to make reasonable efforts to locate the owner of the works prior to using them. In Real Estate it is usually as simple as asking the previous agent who the photographer was.

I subscribe to RP Data and have use of the content from them as part of my fee.

This is in fact a breach of copyright as well as a breach of the Terms and Conditions you agreed to with RP Data.

Extract from RP Data Terms and Conditions - http://www.corelogic.com.au/terms.html

3. LICENSE AND RESTRICTIONS

3.3 The Customer agrees not to use the Products or the Product Data except as in accordance with the licence granted to the Customer as set out in these General Terms and Conditions and any applicable Product Terms below.

3.4 The Customer acknowledges and agrees to use the Products and the Product Data solely for the purpose for which they are intended, and in accordance with all Laws. Except as expressly permitted under this Contract or to the extent permitted by Law, the Customer and its employees and representatives must not, or encourage any person or entity to:

(a) decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the Products, including any source code, object code, algorithms, methods or techniques used or embodied therein;

(b) modify, duplicate or create any derivative works based upon the Products or the Product Data;

(c) distribute, resell, disclose, market, publish, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer any Product or Product Data in any form to any third party, or use the Products or the Product Data on behalf of or for the benefit of any third party;

(d) remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Products or the Product Data;

(e) data mine, scrape, crawl, email harvest or use any process or processes that send automated queries to the Products or the Product Data;

(f) incorporate any portion of the Products or the Product Data into any other materials, products or services that are not intended for the Customer’s internal business use; and

(g) use, or offer to use, the Products or any Product Data for or in connection with any direct marketing activities (unless expressly provided for by this Contract) or with the intention of encroaching upon the privacy of an individual.

4.4 The Customer will be fully responsible and liable for any act or omission of any of its employees or agents.

5.2 The Customer represents and warrants to the Company and its service providers that it has the right to grant the foregoing licenses in and to the Customer Materials; that the Customer Materials do not and shall not infringe upon or misappropriate any rights, including, without limitation, intellectual property rights, of any third parties or the Company and its service providers; and that such Customer Materials are free of worms, viruses, Trojan Horses, and other disabling code.

5.4 The Company reserves the rights to remove or refuse to distribute or publish any Customer Materials which violates the terms of this Agreement.

9. PROPERTY RIGHTS; COMPANY INDEMNIFICATION

9.1 The Customer acknowledges and agrees that, as between the Company and the Customer, the Company or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Products and the Product Data, including any and all creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. The Customer agrees that it acquires no rights in or to the Products or the Product Data provided pursuant to this Contract except for the limited license set forth in clause 3, and that it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Company’s and its service providers’ ownership of the Products or the Product Data, or the creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. The Customer agrees that it will not make copies (other than for back-up or disaster recovery purposes) or derivative works of the Products and the Product Data. All other uses of the Products and the Product Data not expressly addressed in this Contract are strictly prohibited.

11. GOOGLE

11.1 The Products may incorporate Google Maps software provided by Google Inc. Where Google Maps software is incorporated into the Products the Customer agrees to be bound by:

(a) the “Google Maps Terms and Conditions” ; and

(b) the “Google Maps Legal Notices” ,

together the “Google Terms”.

11.2 If the Customer breaches the Google Terms, the Customer will indemnify and hold the Company and its service providers harmless from any claim whatsoever by Google Inc. relating to the Customer’s breach of the Google Terms.

13. BREACH AND TERMINATION

13.1 In the event that the Customer (or its agents or employees) breaches any term of this Contract, the Company may, at its election, do one or any of the following:

(a) suspend or terminate the Customer’s access to the Products or Products Data immediately upon written notice to the Customer; and

(b) commence proceedings against the Customer for any loss or damage the Company suffers as a result of the breach; and

23.3 The Customer must take all reasonable steps to:

(a) inform all of its employees or agents using the Product or Product Data within the Customer’s organisation of the permitted and prohibited uses of the Product and Product Data as outlined in clause 3 of the General Terms and Conditions and clauses 2 and 3 in these Data Terms; and

(b) ensure that its employees and agents comply with the General Terms and Conditions and these Data Terms.

Photographers are a dime a dozen, there work is all the same it isn't worth protecting

I actually heard someone say something very similar to this just the other day. I pretty much ignored it but regardless of the value or contempt they treat the work with it is still protected. A bad song has just as much protection as a top ten hit, it is not about how good the images are. If they aren't worth anything don't use them and take your own photos. The reality is, the reason they want to use them is because they are fit for purpose, they actually have value. They just don't want to pay to use them and they think they can just get away with it for free.

With regards to using images that you do not have permission to use, you will most likely be breaching the terms and conditions of the portals you upload the images to.

Most portals have very similar terms and conditions, below is an extract from realestate.com.au

Ref - https://about.realestate.com.au/terms-conditions-residential/

6.       Your obligations

(e)   you will ensure that your listings are not unlawful or uploaded for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;

Its not my fault the vendor gave me the images.

If the agent does not have permission from the copyright owner it is the agent that has breached their terms and conditions not the vendor. Remember the vendor in most instances is a third party, unrelated to any transactions. The agent cannot blame the vendor, it is the agents responsibility to comply with the law and the terms and conditions of the services they are using.

A word about Principles.. The office Principle cannot stick their head in the sand and pretend this doesn't matter. They have a duty of care to their staff to train them and ensure that they are complying with the laws. If the Principle does not understand the laws they need to educate themselves as well. Ignorance is not an excuse here.

I'm not a lawyer, and I do not pretend to be. This information is of a general nature only and I would encourage readers to seek their own legal opinion but do not bother asking a conveyancer about IP Law. Thats a bit like asking a gynecologist about neurosurgery, sure they will have an understanding but would you want them to operate?

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