Strategies to Stay Within the Law When Editing Digital Photos

I hesitate to do another post on photo editing ethics again since we have pretty much beat this subject to death in the recent past. However, the Real Estate Trends + Technology Magazine of the California Association of Realtors have a pretty definitive article by John Edwards, titled Have you crossed the line?

I think this is a great summary of the issues on this subject. And I feel like it pretty much summarizes the conclusions that we collectively came to on the ethics of real estate photo modification.

I think the statement in the article by Teresa Hoffman, president of the Association of Real Estate License Law Officials, a Montgomery, Ala.-based organization that represents governmental agencies and other organizations that issue real estate licenses, regulate real estate practice and enforce real estate law gets at the essence of the issue. She says:

“Remember, if a consumer claims they relied on a representation as real and true, and it turns out to be an enhancement and false, the licensee will have to defend the action. Why would anyone wish to incur this risk?”

That is the Realtor is the one that is at risk of having to legally defending themselves from a potential law suit and if they are smart they will error on the side of caution.

Who Owns The Photos? Not All Realtors Understand Photo Licensing

Do your clients think they own the photos that you shoot for them? Mike over at www.martinvirtualtours.com told me about an misunderstanding that he recently had in which he shot a tour for a new construction agent where he included some neighborhood photos in the tour. Later, he provided the same neighborhood photos to a different agent for a resale listing in the same neighborhood. When the first agent saw “her” photos being used by a different agent on the resale listing she “went ballistic” because she thought the photos BELONG to her!

Mike asked me for my opinion on the subject. Here’s what I told him:

In my opinion I don’t think you did anything wrong. The problem is most agents have no experience with photographic rights issues and in real estate photography most times there is no explicit contract so everything is implicit, leaving opportunity for assumptions. Some photographers (not usually real estate photographers) make clients sign a statement that defines what the client usage is allowed. For real estate photography it may be a good idea to hand out a statement that describes client usage and the photographers rights.

I’m not a lawyer and don’t give legal advice but here is my interpretation of the conventions for real estate photography:

• Photographer owns the photographs i.e. owns copyright
• Photographer licenses the client to USE the photos on the MLS and flyers for a particular listing until the listing is sold. It use to be common in our MLS for agents that listed the same property in the future to use some or all of the photographs. Recently our MLS made it more difficult to get the listing photographs from a listing.
• Photographer may use the photos for marketing their own services or re-license them to other clients if the photos are general in nature.
• If the photographer licensees the photos for MLS use, the agent cannot use one as a cover for Homes and Land magazine or other use without paying the photographer for the additional use. This is easy to control by just giving agents downsized photos for the MLS so the won’t work for print media.
• Some photographers license the photos for only one particular use… that is for ONLY a brochure or ONLY the MLS.
• Photographer needs to understand that use on the MLS implies that photos are propagated to other many real estate websites that the MLS feeds automatically.
• Use on the MLS also usually implies (this can be different depending on different MLSs) that the initial external photo becomes public domain when uploaded to the MLS. That is, other agents can use this photo when they list this same property in the future. Chcek with your local MLS for their conventions in this area.

Understand that this is just my interpretation… You could decide to do it differently but all this is involved enough that it would be worth writing down your particular interpretation of these conventions and at giving a copy to new clients the first time you shoot for them so you don’t leave yourself open for misunderstandings like Mike encountered. Mike has decided to address this on the back of his business card after this experience. It’s not good business practice to have clients upset.

REALTORS® Required to “Present a True Picture” to The Public

Jason Soles commenting in the last post poses a great question: “Does anybody (photographers or agents) have/use some sort of written code-of-ethics for these situations?” Since as a RE photographer you are working for the REALTORS® I think  the NAR ethics should set the ethical guideline.

As a  REALTORS® I knew that the National Association of Realtors (NAR) does in fact have a written code of Ethics so I Googled the phrase “Realtor code of ethics” and found the current version at: www.realtor.org/mempolweb.nsf/pages/printable2007Code . Standard of Practice 12-8 says in this code of ethics says REALTORS® have:

“The obligation to present a true picture in representations to the public includes information presented, provided, or displayed on REALTORS®’ websites.”

This is a high standard. How does this relate to the yahoo.com/realestate article referenced in yesterdays post? My interpretation is that the standard set by the NAR is higher than the what John O’Brien is claiming that you can get away with in court in most states.

So, REALTORS® need to “present a true picture in representations to the public” which to me means don’t remove power lines, don’t change the grass or any other material items in the photograph. But it’s ethical to modify non-material things like remove refrigerator clutter, remove garbage cans or cars from the driveway, pump up the saturation or remove leaves from the sidewalk.

Advertising is Held to be Boasting and Bragging

Drew from NJ just pointed out an interesting recent article on yahoo.com/real estate by Vanessa Richardson of Bankrate.com titled- Altered Photos: Taking the Real From Real Estate.

The article bottom line is that according to John O’Brien Chairman of the Illinois state Real Estate Lawyer Association:

“Advertising is held to be boasting and bragging, not to be taken as holy writ in many states. Consumers should have enough sense to know to visit the house and do their due diligence on the condition of the property. At least for now, power lines are not the thing that will cross the line into reason for a lawsuit.”

Via: yahoo.com/realestate

Photographers Legal Guide – By Carolyn Wright

Back in May of last year I pointed out that there’s a blog ( photoattorney.com ) that covers legal issues associated with photography. A few weeks ago Carolyn started shipping a book on the subject called “Photographers Legal Guide”. I purchased the e-book ($9.95) version and allthough I haven’t had time to read it from cover to cover (128 pages) I think it would be pretty useful for real estate photographers. The book gives some good basic business tips as well as covers issues like copyright, liability and contracts.

Legal Resource for Photographers

I know a many readers of this blog are photographers rather than real estate agents. I recently ran across Carolyn E. Wright’s PhotoAttorney blog which appears to be a good resource for legal information for photographers.

As a real estate photographer there are legal considerations associated with photographing people's homes. One example is that the external shot made for a listing that is going to be placed on a MLS becomes public domain once the property is listed on the MLS.

One question that comes to mind is if you photograph the interior of someone’s home does the photographer have the right to use those interior photographs to advertise his or her business without getting a signed release from the home’s owner?

Another question relates to virtual tours of peoples homes. Some people are concerned about the security risk of having detailed interior photographs of the interior of their home posted on the internet. Is their any risk in this area for photographers? That is could a photographer that shot the virtual tour be legally responsible for harm done to the home owner as a result of having their photographs of the interior of their home on the internet?

Hmm. Maybe I’ll pose these questions to Carolyn.