Re-using Listing Photographs—Easy, Eh?

Have you ever reused listing photos? Some REALTORS® (let’s call them REALTOR® “A”) may be re-using listing photographs that were taken in the past by other REALTORS® (let’s call them REALTOR® “B”), for use when advertising a property.

REALTOR® A may have obtained the listing photographs from any number of sources, but for the sake of this blog post let’s say they asked REALTOR® B if they could re-use the photographs and the reason they are asking is simply it’s easy to do so.

The issue arising is in some cases, perhaps a few weeks later, after getting permission from REALTOR® B, REALTOR® A may be the unfortunate recipient of an angry email from the photographer of the listing photographs stating REALTOR® A had no right to use the photographs and demanding REALTOR® A pay for their alleged unauthorized use.

There may be several legal issues with re-using photographs taken by someone hired in another context but the one I want to focus on is copyright.

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

The legal gurus over here at CREA have talked about copyright in the context of listing photographs before. The following paragraph from our 2017 blog post (is it just me or doesn’t 2017 seem like ancient history now?) is particularly relevant:

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.

So that may explain the scary photographer emails! REALTOR® A may have asked REALTOR® B if they could re-use the photographs and REALTOR® B may have granted them permission to do so but without realizing they lack the necessary rights to grant the subsequent use. Worse, even if REALTOR® A takes down the photograph, the photographer may still be within their rights to ask for payment for the use that has already occurred.

More on copyright:

How to avoid angry emails

Fortunately, the 2017 blog post helpfully explains how this type of situation can be avoided:

Copyrights can be assigned or licensed to other people. This is why it’s 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.

The challenge, however, is without verifying that the proper contracts were entered into, it will be difficult for someone in REALTOR® A’s shoes to know if REALTOR® B obtained the proper rights to permit them to authorize the subsequent re-use of the photographs.

Now it’s possible some MLS® Systems have been set up to more easily permit re-using of listing photographs by their members. REALTORS® who have questions about this should contact their board to discuss what is and is not permitted.

Regardless of where old listing photographs are sourced from (another REALTOR®, their board or elsewhere), it would be prudent for all REALTORS® who wish to re-use photos, to get some kind of written assurances that using these photographs won’t come with a whole bunch of angry emails.

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

Simon Parham, Legal Counsel, is always on hand to provide helpful advice to CREA, Boards, and Associations on all aspects of federal legislation that can be reduced to an acronym, including: PIPEDA; FINTRAC; and the DNCL. In his spare time, Simon enjoys running, camping, discovering the world with his daughter, and planning his “big year.”


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