Best of 2015: Why Reusing Listing Photos Could Mean Legal Trouble

We're continuing an annual tradition of counting down our top 10 articles of the year. The following article was originally published back in March and is #2 in our countdown. See #3 here.

That house you sold in 2012 has just come back on the market. You know you still have a picture somewhere--there it is--and the home still looks pretty much the same. You upload the photo and relist the property.

No problem, right?

Well, actually, you could be stepping into some dangerous legal territory.

We spoke with Larry Lohrman, a real estate photographer and blogger in Salem, Oregon. He frequently writes about issues at the crossroads of real estate and photography. One of the most common topics of discussion on his blog is usage rights for photographs commissioned from professional photographers.

"I have a friend who's an agent and photographer in Seattle," he says. After a conversation about just this subject, Lohrman's friend went back to his office of more than 80 agents and asked around. "Down to a person, no one" -- not the managing broker, not a single agent -- "understood that when the agents pay a photographer for photos, they aren't getting ownership of the photos. They're only licensing those photos for a specific time and purpose."

A number of recent high-profile cases have brought this issue to light, and may be cause for concern if you're not 100% sure of the legal status of your listing images:

• In 2008, photographer Liz Ordonez-Dawes was awarded more than $12 million when the court agreed that her client's distribution of seven photographs to third parties constituted copyright infringement.
• In 2013, Palm Beach County photographer Andy Frame sued several websites over misuse of his photos of Olivia Newton John's home in Jupiter, Florida.
• In 2014, a class action lawsuit was filed against CoreLogic for allegedly tampering with and distributing proprietary photographic works to their MLS clients.

Why is this such a worry for professional photographers--and for you?

Many photographers--especially those with a portfolio consisting of images of high-end homes--stand to make thousands of dollars in secondary markets. They might, for example, license their photos to architects or builders for use on their websites. Or they might sell their images to stock photo libraries. This is a high-stakes issue for many photographers, and some will, justifiably, go to great lengths to protect their intellectual property.

So, how do you protect yourself and your practice?

When real estate photographers license their work to an agent, it's typically for the length of time it takes to sell a property. If your property takes a year to sell, that's how long you've got the right to use the photograph. If it takes a week, that's how long you can use it.

What about the scenario in the opening paragraph? You've got the photo in your archives. It still accurately represents the property. It doesn't make sense to bring a photographer out for another picture.

What do you do?

That's really up to the photographer. Depending on your relationship, he or she may simply give you the go-ahead to reuse the image. It would also be well within the photographer's rights to insist on payment--either at the original, full price, or at a discount.

Whatever you do, you want to make sure you keep a clean house, legally speaking. Be sure you understand the terms of service you agreed upon when you commissioned the photographs--and that you have everything in writing.