No, it might not be the sexiest topic, but it’s an important one to have an honest discussion about. And if we get our expectations about copyrights out there in the open right away, there shouldn’t be any confusion later on.
Copyrights don’t have to be a dreaded topic — they exist to protect everyone involved — both the photographer and the client. I’d like to note upfront that we at Picture KC want you to be successful and are always open to negotiations regarding copyrights.
But this whole thing with Zillow has my head spinning.
If you’re unfamiliar, here’s a quick breakdown.
The Zillow vs. VHT Lawsuit
Back in July of 2015, real estate photography company, VHT, filed suit against real estate giant Zillow for copyright infringement. In February 2017, a jury in the U.S. District Court in Seattle ruled in favor of VHT, declaring that Zillow violated the copyrights on 28,000 photos. The court ordered Zillow to pay $8.3 million in damages to VHT (which was appealed and reduced to $4 million).
But Zillow appealed the ruling AGAIN in March of last year. The 9th U.S. Circuit Court of Appeals then ruled that Zillow did not “willfully” infringe on the copyrights of a large portion of these photos (yes, not all of them, it’s very confusing) and the suit remains unresolved. The exact amount of photos Zillow infringed upon and will be on the hook for damages has yet to be determined.
The argument is that VHT didn’t give Zillow enough notice about the infringing photos before filing suit. Therefore, Zillow was not given enough time to flag and remove each photo in question. However, that’s not even what caught my attention — what did was whether or not the photos will be judged individually or as part of a compilation.
“If the VHT photo database is a ‘compilation,’ and therefore one ‘work’ for the purposes of the Copyright Act, then VHT would be limited to a single award of statutory damages for Zillow’s use of thousands of photos on Digs. But if the database is not a compilation, then VHT could seek damages for each photo that Zillow used.”
This is a problem because copyright is simply not black and white in the real estate industry.
Copyrights & Real Estate Photography
In many photography industries, there is blatant copyright abuse. People will take photos and post them to their website and social media at will, knowing full well that they don’t own the rights to the photos.
Real estate photography prices are kept low because agents are only supposed to have exclusive rights to the images for the duration of the sale. These copyrights end once the sale is concluded unless extended rights are purchased.
What appears to have happened here with VHT and Zillow is a situation that is becoming commonplace in the real estate industry. Zillow kept using the images after a sale (and therefore the contract for the copyrights) had ended. In this case, Zillow used the images for a different part of its website focused on home improvements, (then called Dig, now known as Zillow Porchlight).
An Emerging Trend in the Real Estate Industry
Unfortunately, it seems to be becoming an industry standard for photographers to sign away their copyrights at the end of a gig. The contract will include language like “Photographer is not permitted to use photographs in any way.”
I’ve seen it myself!
And listen — I get it.
Real estate agents want full rights to the images to show how many houses they’ve sold or how experienced they are. In this way, they’re able to build an online portfolio that showcases all of the beautiful homes they sold. This shows your credibility and builds trust with prospective buyers.
But my question is, why can’t the photographer do the same thing? We should both be able to benefit from the images.
The value of an image is the same as it is in advertising. The more an image is seen, the more valuable it becomes. And it goes both ways — both for the real estate agent and for my photography business.
Finding A Compromise
I understand that real estate agents are not photographers, which is why I’m putting out these educational materials. As long as agents don’t expect me to sign away the right to use these images in my own marketing then we can work together.
I do also have the option for agents to buy extended rights to an image for an extra $50. Typically, your website only needs one exterior image to showcase the past sale, but I do also offer a flat rate of $250 for an entire album.
That gives the real estate agent full rights to the images and covers my licensing. But I will not sign a contract that says I cannot use the images in any of my own materials.
In this way, we can have a mutually beneficial relationship. I’m giving real estate agents full rights to my photos at no extra charge. Agents are free to use the images for whatever they want, as long as they please.
All I’m asking is that I can use the photos as well.