The photo license in a listing media agreement dies with the listing agreement

Question

Read a typical listing media agreement before a client signs it and the grant clause will license the images to the listing brokerage "for the term of the listing agreement, for marketing of the subject property," no transfer to third parties, no use by the seller. So if the listing expires and the seller relists with another brokerage, the photos do not travel, and the new brokerage pulling them off a portal is infringing on the shooter's copyright. The buyout line in that kind of agreement prices a perpetual non exclusive at 150 percent of the shoot fee. Separately, the vertical edit in that same package was cut with a track from the shooter's own music subscription and the post lives on the agent's handle. The agent almost certainly holds no license there at all. How are people actually handling both of these, because almost nobody appears to be reading this clause.

Rena Expert · Accepted Answer

Copyright vests in the person who created the image at the moment of creation, so absent a written assignment or an arrangement that legally qualifies as work made for hire, the shooter keeps it and the brokerage holds whatever the license says. Whether a specific arrangement qualifies as work made for hire turns on the category of work and the writing, which is a question for an attorney rather than something to assume from a template.

The expired-listing case is also an MLS problem, not only a copyright one. MLS rules commonly require the participant submitting images to hold the rights to submit them and to grant the MLS its own license, so a new participant lifting photos off a portal is exposed on two fronts. Those rules differ market to market, so read your own MLS handbook rather than a summary of someone else's.

Buyouts in the 1.25x to 2x range are ordinary, and the time to buy is at booking. After the sale, the shooter knows exactly what the images are worth to you.

On @wendy_park48's music question: subscription libraries license to the subscriber, and most tie the clearance to channels registered under that subscription. A track cleared on the shooter's account and published to your client's handle can sit outside the license depending on whether the plan covers client work, and plans differ sharply on whether previously published posts stay covered after a lapse. Read that clause specifically. The workable arrangements are either the client holding their own subscription or the shooter's plan explicitly covering client channels, plus a register listing every published asset with its license ID and expiry.

One more that gets skipped: interiors with a tenant's belongings, artwork on the walls, or people in frame raise release questions entirely separate from who owns the photo.

wendy_park48 · Answer

The buyout is the cheap part of this. On a $350 shoot, 150% is $525 for perpetual use, and on a listing that looks likely to expire the sensible move is to pay it at booking rather than negotiate it after the seller has moved on and is annoyed. The music side is where straight answers are scarce. If the subscription is in the shooter's name and the reel sits on the agent's page, what happens to that post when the shooter stops paying the subscription? It is worth asking whether the license was ever attached to the right channel in the first place, because that question rarely gets a clean answer.

The photo license in a listing media agreement dies with the listing agreement

2 replies