Who Owns the Photo Copyright When One Professional Hires Another?

The January 23, 2018 blog post Who Owns the Copyright to Real Estate Photographs?

has prompted another Real Estate Professional to ask about what seems to be a more common scenario:

Homeowner Alpha hires Realtor Bravo to market and sell Alpha’s home.  Bravo hires professional photographer Cortez to take photos of the home for Bravo to use in marketing the home.  Bravo pays Cortez for the photography.

Who owns the photos? Is it the Realtor, who paid the photographer? Is it the homeowner, whose home is the subject of the photos?  Or is it the photographer?

Copyright Analysis.

As I wrote in the 1/23/2018 post:

“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.”

Note: professional photographers are often independent contractors as well.

In the scenario above, it is most likely Cortez who owns the photographs and has the right to use them in her further work.

Risk Management.

This is a situation that is ripe for dissatisfied clients, complaints to real estate regulators, and litigation.

How best to avoid these problems?

I hope you won’t be shocked if my answer is “Get it in writing!”

The Realtor is in a good position to ensure each party’s expectations are surfaced and satisfied.

Bravo should have a provision in his client agreement that spells out the additional services he is going to provide (or going to hire out).  This provision must make it clear who owns what!

Bravo also needs to have a written agreement with photographers or other third parties, spelling out who owns what. This is particularly important in cases where the Realtor or the homeowner expects to get something other than the “default settings” in the copyright laws.

Michael Oswald

michael@msochartered.com

www.msochartered.com

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

 

 

 

 

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