Of course I own my listing pictures … or do I?

I’m not a real estate broker or sales person but I’m guessing one of the first things you do when you get a new listing is arrange for pictures to be taken of the house.  Once you get the pictures I bet you use them to create brochures, upload them to your Board’s MLS® System, make sure they appear on REALTOR.ca and you likely send those pictures to other third-party destination websites used to market your listings. I suspect that house pictures are arguably the most important part of a listing.  But, do you know who owns these pictures?  Do you know if you have the rights to do the tasks above with your listing pictures?

Let’s start with a super-short primer on copyright law. Copyright is a complex concept but in general it protects “works” that have some element of originality.  A “work” can be almost anything, like a book, a picture, a song, a video, a sculpture, a computer program – the list goes on and on.  Copyright protection arises as soon as a “work” is created and it gives the owner of the copyright the sole right to reproduce the “work” or any substantial part thereof.  It also gives the owner a number of derivative rights, like the right to translate the “work” and to communicate the “work” to the public.

Now for the question of the day: who owns the copyright in pictures? In general, the person who creates a “work” is the owner of the copyright in that “work.”  However, this hasn’t always been the case with respect to pictures. The Copyright Act used to say that if a photographer was retained to take pictures for another person, then the person who commissioned the pictures would be the owner of the copyright. This section of the Copyright Act was removed in 2012, which means pictures are now treated as all other “works” under the Copyright Act.  What does that mean?  It means that if you retain a photographer to take listing pictures for your brokerage, then the photographer likely owns the copyright in those pictures.

But don’t worry, there are steps you can take to ensure you can use those pictures for all of your marketing needs! Copyrights can be assigned or licensed to other people.  This is why it is important to have contracts with photographers that either assign the copyright in the pictures to the brokerage or license the brokerage to use, display, and reproduce those pictures. Not sure exactly what those contracts should say? Relax, we’ve created a template contract for you to use.

Remember though, and here comes the lawyerly part of this post, template contracts should always be reviewed by legal counsel to ensure they work for you personally.  Also, if you have contracts with photographers that were created prior to 2012 then you should have those reviewed to ensure they contain the proper assignment or license, too.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.

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