Property release sign by realtor or owner?

<p>Hi Group, <br>

So I'm starting to require all realtors and property managers I shoot for to complete a property release for each property I photograph. I have a realtor which is hesitant to compelte stating that he thinks he does not have the authority to sign the release on behalf of the owner but the release allows for a "representative of owner" to complete. What should I say or do?</p>

<p>Thanks</p>

 

<p>The realtor's contract with the seller would have to include rights that go beyond simply the sale of the property. Typical contracts limit the rights of the realtor/broker to actions taken to facilitate the sale of the property, which would not include anything that extends beyond the sale of the property.</p>

<p>In addition, you may have the problem that if you sign the property release with an agent representing someone who later does not own the property, you probably need to have the seller disclose the existence of the release (assuming it specifies that it applies to heirs and successors) for it to be valid after the sale. I suspect many sellers will have little interest in being required to include this. This is different than something like a business deal where there is an expectation that there can be contracts beyond the deal that need to be acknowledged. BTW, this probably also applies to any seller-signed agreements.</p>

<p>Now, 1) I am not a lawyer, and 2) this may depend on state laws. However, I have shot real estate and signed and read lots of contracts around this.</p>

<p>Property releases for images used to by a realtor to sell the property of their clients? Really? This whole property release thing is getting out of hand. It was a barely existing practice in the past for isolated situations affecting other intellectual property and collateral privacy concerns. Its slowly but steadily becoming a broader self fulfilling prophecy caused by people conjuring up reasons and scenarios to use them creating the impression by those asked to sign them that they actually are a right they are granting which will only become so common that courts, one day, will treat it as an accepted phenomenon to enforce. Its stuff like this contributing to it. <br /><br />In addition to the issues Jeff raises is why would YOU need them? Are you using the images for something? Isn't the realtor using them? If a release were needed, it would also should to set forth the scope of the use. Unless these are celebrity homes or something, I doubt there is anything of value to them and it is unlikely anyone will agree to third party of use via a real estate listing.<br /><br /><br /><br /><br /></p>

<p>in order to commercially license images on istock/getty a property release is needed. As of about 2010 all interior photography to be sold on stock sites needs to be released. prior to that, myself included we were submitting interior images and they have been selling regularly but to get new stuff in it has to be released.</p>

<p>Don't assume that because a stock agency asks for property releases they are a legal requirement. Stock agencies are motivated to avoid debates with their clients ( who in general are the people liable for any transgressions ) because they want further business and want above all to avoid being sued by their clients even if they win. By comparison, putting contributing photographers to a lot of unnecessary aggravation or simply refusing to accept unreleased shots that feature property prominently seems far easier to them.</p>

<p>But I'm puzzled why any work you get asked to do by a realtor or property manager should require a release, and quite understand a realtor/managers reluctance to get into discussion with the property owner on the reasons for and nuances of this which they possibly don't understand too well. Are the photographs you shoot for realtors etc ending up being used commercially elsewhere? This might involve aspects other than releases coming into play.</p>

<p>My main motivation for asking a realtor to provide the owner's release would be to obtain a debate-ending license to use the same photographs as promotional material in soliciting new business from other people. I've never actually looked into what happens when the property changes hands (something often quite likely to happen almost immediately in the wake of being paid to produce those very same images, if we're talking real estate).<br /><br />In my case, we're talking about slowly getting all of the legal ducks in a row as we prepare to more publicly offer low-altitude (drone-based) aerials of properties, including real estate for sale. At some point the FAA is going to get its delayed-past-congress's-mandated-date act together and provide the framework within which that activity can happen, commercially. There's going to be a whole new flurry of these questions as a result. Aerials can really help with some listings, but also greatly increase some people's level of discomfort. In other words, they love 'em when it's helping to sell their property, and then they (or the new owners) want them to go away. Some for of solid release/license that settles that issue in a mutually agreeable way will cut down on a lot of fuss.<br /><br />But I am curious if there's any general understanding (John H?) of what happens when the releasing party is no long the owner of the property. </p>

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<p>Are the photographs you shoot for realtors etc ending up being used commercially elsewhere?</p>

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<p> <br>

If they are being sold through stock agencies, which the OP says is the reason for the release requirement, then it would seem that is the case.<br>

</p>

<p>For the purpose of a release to use your photos, the agent or broker is <strong>NOT</strong> a representative of the building owner.<br>

The forms used by brokers vary from state to state, but are generally alike and pretty much follow the form used for MLS listings in New York, which says:<br>

"<strong>8. OWNERS Authorizations:</strong> <br />a. In order to facilitate the sale of the Listed Property, the OWNER hereby (i) grants to BROKER a non-exclusive, irrevocable royalty-free license to use, sublicense, publish, display, and reproduce any photographs, images, graphics, video recordings, virtual tours, drawings, diagrams, written descriptions, remarks, narratives, pricing information, and other copyrightable elements of or relating to the Listed Property provided by OWNER to BROKER (hereinafter referred to as OWNER Listing Content), and to prepare derivative works of the OWNER Listing Content, and to reproduce, submit to the MLS, distribute, and publicly display the OWNER Listing Content or any derivative works thereof...."<br>

Since most owners do not have photos to provide to the broker, the owner usually gives the broker permission to send over his or her photographer to take photos. Those photos are then deemed to be photos provided by the owner. The brokers' use of the photos is limited to listing the building for sale.<br>

<br />The broker and no other third party (including future owners) have any legal standing to sue the photographer for anything the photographer does with the listing photos. However, the current owner does have standing and the photographer must have the owner's permission to commercially use photos taken by or for the owner and used for listing purposes.<br>

Generally, the owner cannot limit a photographer's use of pictures taken from a public space and not on the owner's property that depict the exterior of the building or an interior area (such as glassed-in porch) that is visible from the exterior for any building in the U.S. The owner's permission is only needed to use interior photos. In this regard see 17 U.S.C. 120.<br>

<br />Note: I am not a lawyer but I believe I am correct.</p>

<p>Great explination. I'm starting to get a better feel for this subject.</p>

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<p>"If they are being sold through stock agencies, which the OP says is the reason for the release requirement, then it would seem that is the case."</p>

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<p>I wonder if the realtor or their clients know the photographer may want to place images of the property on a stock site? </p>

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<p>"Great explination. I'm starting to get a better feel for this subject."</p>

</blockquote>

<p>Unfortunately, that's not actually the case because Benoit is discussing and citing copyright ownership and licensing issues which are completely different and separate from the property release issues which is what you are asking about.</p>

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<p>"what happens when the releasing party is no long the owner of the property."</p>

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<p>Good question. I haven't researched in to it myself. Largely due to this article which showed that propery release research may have been a waste of time... <br /><br />https://asmp.org/tutorials/using-property-releases.html#.VSxnWpPxQih<br /><br />The authors speculated property releases would be attributable to new owners. But rights and obligations that "run with the land" are usually real property related rights. Easements, leases to tenants and such. Is a 'property' release really only a real property issue or is it like the association issue mentioned in the website? What new case law has been created since the article was published, I don't know. I strongly suspect whatever exists, if anything, is not, as they say, well settled. Contrary decisions, in the future and elsewhere, can be expected.</p>

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<p>"in order to commercially license images on istock/getty a property release is needed."</p>

</blockquote>

<p>The prophecy on its way to becoming fulfilled. I would hope that Getty at.al. have considered if a property release, properly drafted, applies in perpetuity as new owners come and go. Maybe they feel confident about future interpretation.</p>

<p>Photographers debating law is a bit like lawyers debating photography... :)<br /><br />But that said, what Benoit said about not needing a release for things you can see from public property is legal advice I have seen in many, many articles over the years either written by lawyers or quoting lawyers. <br /><br />Releases aside, my question is whether there is any market for stock photos of random houses. A photo of any given house might be of value to the owner or a realtor trying to sell it. And a stock agency might want a collection of generic house photos. But once the agency has maybe 50 generic houses (which they could get in the first hour they tell photographers to send them some house pictures) how many do they really need? I could see a real estate photographer getting property releases "just in case" he has a use for the image someday. But I doubt the market for the images would be large. And if a particular realtor or owner didn't want to cooperate it shouldn't matter since the odds of selling a picture of any one specific house is probably pretty slim. </p>

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<p>"Benoit said about not needing a release for things you can see from public property is legal advice I have seen in many, many articles over the years either written by lawyers or quoting lawyers"</p>

</blockquote>

<p> Citing a copyright statute in support. Where is the cite for property releases in that context?</p>

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<p>Photographers debating law is a bit like lawyers debating photography... :)</p>

</blockquote>

<p> <br>

I don't see any "debating" and would add that photographers and lawyers are not mutually exclusive.</p>

Thanks all for the responses. What I've decided to do is not make this a requirement for all clients but rather if I see a

property which photos will sell well, I'll ask the realtor to ask the owner to complete the release and I might even offer a

discount on the photoshoot to entice the realtor.

<p>What rights of the owners would/could the use of the image infringe? This might be interesting and might apply. Of course situations, locations and circumstances change: </p>

<p>http://www.photoattorney.com/is-a-property-release-required-for-use-of-photo-of-house-for-an-advertisement/</p>

<p>I think it's asking too much by the stock agency. Not that there aren't some times where portfolio building works for the agent, the photographer and even the home owner. But as a seller, I'm not sure I'd want to be bothered by the agent asking me to release the property for generic and unspecified uses that might gum up disclosures and escrow.</p>

<p> </p>

<p>Craig, your link is about exterior shots, the OP referenced interior shots requiring the release in his second post on this thread. One issue with interiors might be that they can include the owner(s)' possessions. I've been required to get a property release for an interior of a commercial building even though it was being completely gutted. Not sure why...</p>

<p>Craig's link IS interesting. It appears California does not currently see use of real property in commercial use as an invasion of privacy of the owners or occupants and South Carolina rejected other theories that were raised as to ownership of property.<br /><br />I noticed from the links in the link Craig provided that Attorney Carolyn Wright shares my concern over what I called a self fulfilling prophecy as to property releases when she writes...<br /><br /><em>"If the building owner signs the release, he will expect the next photographer to ask for a property release, too. If permission is not requested, will the owner sue the second photographer for doing something within his rights? Will all photographers then have to get permission or pay for something when it is not legally required?"</em></p>

<p>Certainly within at least some circle of acquaintance people could say, "Oh look, that's the "Smith" house in that ad." and make some connection to use with permission. It may turn on the level of celebrity of the "owner" or perhaps on the use. Using a picture of a home commercially might be different than using the same picture in an article on prostitution, urban drug running, etc. I think interiors are different from exteriors. There is an expectation of privacy inside one's home that one doesn't have outside in public view. And an interior shot suggests permission to be there so getting a release may be a hurdle but much less of one than getting one for an exterior that might have been shot from a public place with no contact at all with the owners.</p>

<p> </p>

I have a contract that I use for all architectural photography that, when signed, grants me permissions to use the photographs for

promotion, competition and stock sales and grants me all applicable property releases.

 

Never had a problem and many are flattered that their property may be considered for other publication.