The January 4, 2018 blog post Real Estate Professionals Need to Minimize the Risk of Getting Sued for Copyright Infringement has prompted a Real Estate Professional to ask about the following scenario:
Homeowner Roberta Smith decides to sell her home. She signs a representation agreement with Garcia Realty, a local Real Estate brokerage. Broker James Garcia assigns agent Mary Thomas to assist with the sale.
Using her own smart phone, Mary takes several photographs of Ms. Smith’s home. Mary posts five of the photos on the Garcia Realty website, and uses those same five photos in flyers and brochures.
Ms. Smith’s home sells right away, and closes without a hitch.
Ms. Smith then claims that she owns the copyright to all of the photos Mary took of her home. She sends a letter to the brokerage demanding that (1) electronic copies of all of the photos be provided to her; (2) the brokerage and Mary each refrain from using those photos in any way; and (3) all copies of the photos must be destroyed.
Who actually owns the copyright to the photographs?
The copyright laws of the United States provide that the copyright to a work of art (such as photograph) belongs to the creator of the work of art. There is an exception for works of art that are created by an employee, at her employer’s direction, and as part of her job. In that instance, it is the employer who owns the copyright.
Bear in mind that Real Estate sales professionals typically are independent contractors, not W-2 employees.
In the above scenario, it is most likely Mary who owns the copyright to the photos. She has the right to use those photos in her subsequent work. If she leaves the Garcia brokerage, she can take them with her.
What else should Mary consider before using the photographs?
Mary needs carefully to evaluate each photo to make sure none of them could reasonably be characterized as violating Ms. Smith’s privacy. For example, Ms. Smith might be a very secretive person who doesn’t have any social media accounts and doesn’t publicly display pictures of her minor children. One of the photos from inside the home captured images of all of her children.
Even though Mary owns the copyright to all of the photos, she would be wise to give Ms. Smith a gift of the copyright to the photo with the images of the kids, and then to destroy any copies in her possession.
Michael Oswald
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2018 Michael S. Oswald
Michael S Oswald, Chartered 
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