By Grant Harpold
Even in today’s market, photography, pictures taken for a listing, are still a critical process in the sale or purchase of a property. The photographs themselves are tangible property of value and belong to someone. The question is: who owns the photographs that were taken of your listing? I would image most REALTORS® don’t know or think that they own them. Why does it matter? If the REALTOR® does not own the photography, then the true owner who has registered the copyright can seek compensation for unauthorized use of the photos, better known as copyright infringement. If found liable for infringement, statutory damages alone can range anywhere from $200 to $150,000 per photo, depending on the conduct of the infringer. Lack of knowledge, a familiar defense in a property defect case, does not defeat liability in an infringement claim. Ask a blogger in Nebraska who got hit with an $8,000 claim for using one not-so-good photograph of Omaha in a post.
There are two ways that photos can expose you to liability. First, if you have no agreement with your photographer giving you ownership or full use of the photos. Second, if on your internet site, you have photos of properties from various sources that are not your listings and that do not have the proper consent from the photograph owner. This might occur when photographs are used after a listing has expired, like for marketing purposes, and the original owner, the photographer, did not authorize their use past the listing period.