Question on the ownership of a photograph

[w cole]

Hey guys,

First post here, I have a question about what someone did with some photos of mine and after reading the posts on here it looks like you guys will know if what he did was legal or not.

I'm a realtor and I contracted a photographer to take some pictures of one of my houses (spending a sizable amount of money to do this). I took these pictures and made an ad for the home and posted it on the internet.

Another realtor took my photos and posted them on craiglist advertising the home (and photos) as his own listing.

Is this legal? Is there anything I can do to prevent this? Watermarks?

Thanks in advance,

William Cole

 

[Sideburns]

Wait a sec...two different people are selling the same house?

Either way...the pictures probably belong to the photographer. He can then sell the use of them to whomever he chooses. Sorry, but you're probably out of luck. When a photographer has a job, he gets you to sign a paper basically saying "I can do whatever I want with the pictures I take of your stuff/you...so don't complain later"

Good luck.

 

[w cole]

Wait a sec...two different people are selling the same house?

Either way...the pictures probably belong to the photographer. He can then sell the use of them to whomever he chooses. Sorry, but you're probably out of luck. When a photographer has a job, he gets you to sign a paper basically saying "I can do whatever I want with the pictures I take of your stuff/you...so don't complain later"

Good luck.

Im the only one selling the home, the other realtor took my photos, made an ad and posted it on craigslist as if he was selling the home. You can see why I would be upset...

I know for a fact the photographer did not ever give him permission to use these photos, but I was under the impression that if I contract someone to take photos for me I own them - it seems I may be incorrect?

Thanks,

Will

 

[astrostu]

It depends on where you are. But most likely, the photographer retains all rights to the photograph unless (s)he specifically signs them away.

 

[w cole]

It depends on where you are. But most likely, the photographer retains all rights to the photograph unless (s)he specifically signs them away.

So this other realtor (or anyone else for that matter) can't take the photos and use them for commercial purposes without the photographers permission, corrent?

 

[RacePhoto]

So this other realtor (or anyone else for that matter) can't take the photos and use them for commercial purposes without the photographers permission, corrent?

Two questions here, and probably more.

No he can't steal your photographs off the web and use them, especially if they are off your website, because the minute you post them, on your site, they are copyrighted. If you paid for the photos they may be yours, or they may still be the photographers, depends on your contract with the Photog., but that isn't the major issue here.

If he didn't get the photos from you or the photographer, NO he can't use them, in any way.

If he bought the right to use them, from the photographer (which from your original question, I'm assuming he did not) then he could use them.

Some people just don't understand the law at all, and think, if it's on the web it's free. It's not. It's that simple.

First step is notification. Not threats, just notify him that he is illegally using your images, and he needs to remove them. (a cease and desist request) If he doesn't respond and doesn't remove the photos, he's in violation of the copyright laws. Here's where it gets a little more complicated.

First you have to figure out who actually owns the photos. You or the photographer. Unless the photographer sold them to you, you are basically just paying for a use license.

Then, should you want to sue the guy who's using them, you'll need to formally copyright the photos. Even though your website is copyrighted and the laws say that the photographer has rights, if you need to go to court for damages, you need to register the photos BEFORE you file a claim.

Which translated means the photographer has to register his work, and the photographer is the one bringing the lawsuit, not you, because the photographer probably owns the photos.

Hope that helped?

1) Ask nice, and explain they aren't free and you have paid for them and have the only license to use them.

2) If it's worth your time, find a lawyer who will write a letter, on his stationary, warning the other agent, that if he doesn't stop using your photos, you will take legal action. Depending on the lawyer or if you know one as a friend, a letter might cost $50 or nothing.

3) The lawyer will tell you if it's worth taking further action. As in, you can't get blood from a turnip. If it costs $10,000 to win the case and you get nothing, it's not a worthwhile action.

4) Next the lawyer will tell you, that before you can file criminal charges, which wouldn't be you, but the DA or the local authorities, or file for civil damages, you have to legally register the photos.

Do #1, it usually ends right there, especially if the offender made a mistake and doesn't understand the laws or free use. If he's a jerk, #2 will usually show you are serious.

Alternate plan. Go get cousin Guido to knock on his door, and explain that he won't walk so good with a broken kneecap. (just kidding!)

You can also have the photographer contact Craig's list with a complaint, and contact the website that's hosting the photos, if they aren't being stored on Craig's list. That will often cause them to disappear.

Here's one more possibility. Is he linking to your photos on your site? That's theft pf bandwidth. A nice entertaining trick is change your site to renamed copies of the photos, and change the original photos to something that says "(insert agents name here) steals photos." with a photo of a pig or a horses back side.

 

[w cole]

Racephoto,

VERY informative, thank you so much, I appreciate it. I already contacted him and am awaiting his reply to my voicemail. Now that I'm informed I will be able to take care of this guy.

I didnt even check to see if he directly linked the pictures off of my site, I'm going to go check now - this could get interesting

 

[tr0gd0o0r]

The first question I would want to know is where you posted the images online. If it is some type of large classifieds webpage, it is possible that simply posting on the site makes them public property (it would be in the terms of use). Barring this, the guy who used the photograph without permission is most likely not acting legally.

As far as your rights to the photographs. There should be a phrase in the contract giving the photographer rights to his work. However, there also needs to be something protecting you from exactly this scenario. The photographer should have limited rights, at least for a certain time period. For example he could use the images in a portfolio but not sell them to your competitor.

Keep in mind, I am not a professional and this just seems like how things should be. I can't imagine photogs making it very long in the commercial market with full rights to the images. Companies wouldn't go for it (or shouldn't).

To me it sounds like this other guy is infringing on someone's rights. If it is a big deal, go talk to a lawyer to get some real advice. Or get the photog involved if he has full rights to the image.

 

[Anubis]

My understanding of copyright is that if you pay a photographer to take a picture (or if you commission any work for that matter) the images and their copyright belong to you and not the photographer.

A quick search for american copyright law returns this

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Taken from http://www.copyright.gov/title17/92chap2.html#201

It is also the case that you do not need to register your copyright over them, it exists as soon as they are created. Registering merely exists to help prove via noted dates that you were first to have them created.

The fact that he/she is trying to sell a house you have been hired to sell sounds nothing short of fraud, perhaps you should involve the police in that side of it.

As a final point I will add that I live in the UK, so you should check your own country/state laws to be sure.

Good luck!

 

[MACollum]

I don't really know, but at the very least I would think that it would be unethical for the photog to be paid by you to take the pictures, then sell them off to another party, regardless of who owns the copyright. If the other party wanted pictures of the same thing, they should pay the photographer for their own shoot. JMO.

 

[skieur]

I should point out also that the Realtor's Association takes a rather dim view of members stealing each others listings or acting in an unethical manner.

skieur

 

[jstuedle]

Works made for hire clause in the copyright law refer to a photographer who has been hired by a party, as in full time job. Think the newspaper photographer whose total output is owned by the paper. This would be just like the design engineer who works for a major firm and invents the next generation jet engine. He owns nothing but the recognition of doing great things, the employer owns all copyrights to his invention. But a freelance or professional photographer who is hired on a job by job basis owns his work until he "releases" the copyright in writing in some way. I.E. sells the rights to another party.

 

[Bevel Heaven]

hopefully, he simply linked to your website for the image to show up on craiglist. If that is the case, takeyour photo down, and in it's place put something along the lines of "THIS IMAGE WAS STOLEN FROM ME, THE REALTOR HIRED TO ACTUALLY SELL THIS HOME - WOULD YOU WANT TO DO BUSINESS WITH A THIEF? CALL XXXXXX and XXXXXXX IF INTERESTED IN THIS HOME" in big bold letters across the front of the photo, save it with the same name and upload it back onto your server. Now it will post in the craigslist ad. I would then contact someone on Craig's staff and complain asking them to take it down immediately, which they will. OK for your website, simply put the original photo back up with a new name and change your htm to point to that on your site. Watermark your images with your company logo or whatever.

I would talk to a lawyer about this as some advice you may receive may not have anything to do with actual factual LAW regarding this issue but only what the poster thinks SHOULD be the law. Good luck on this.

 

[Tim Ellis]

Just out of curiousity. If your listing the house......that makes you the listing agent. Every other realtor in the area are trying to sell your house which gives you and them a commission. Why the problem. Unless your a realtor that sells a high percentage of their own listings , you need other realtors to market your listings to their clients in order to make money. If he's willing to spend the advertising bucks to post the property on his site and spend the energy why not let him ?