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Court case shows why agents and creatives must read the fine print

The opposite is true for creatives who supply to real estate agents – they may be giving up their rights, without even knowing it.

According to O*NO Legal founder and legal strategist, Kristin Porter, agents often make the mistake of thinking because they had paid someone for a creative service, they then ‘owned’ the end product.

“You may have contracted a professional to take photos or create a floor plan you’re looking to sell and list, which you’ll no doubt want to use for print advertising, listing platforms and social media,” Ms Porter said. 

“It might seem simple – you paid for the photographer, you should be able to use the finished product however you like, right?

“Well, this is where things can get messy,” she said. 

It all comes down to intellectual property rights; more specifically, copyright. 

Copyright is a type of intellectual property right, said Ms Porter. 

“Copyright protects the expression of creative ideas, such as texts, artistic works, films, and music, by allowing the creator to decide how that work can be used,” she said.

“These rights also allow the copyright holders to stop others from using their creations, or, on the other hand, give them the licence to do so.”

Copyright happens automatically – if you created it, you own its copyright.

But, if you’ve completed the work for someone else, such as a real estate agency, the informal contract effectively assigns copyright rights away to the client.

But it’s where the agent uses the photo that can create issues for both parties. 

A case in point

In a recent court case, a photographer who created photos for an agent, accepted their use of the images to market the property.

However, part of the agent’s marketing included uploading images to realestate.com.au – and the photographer objected to REA’s further use of his work – this is where the issues started. 

To upload to platforms like REA agents would first have to agree to the terms and conditions (T&Cs) of the website. This means they become bound by them,” Ms Porter said.  

“It’s a good idea to read through the T&Cs so you know exactly what you’re getting into.

“In this case, some of the REA T&Cs should have been looked at by both the photographer and the agents.

“By granting REA a right to upload creative work, the agents would also be giving them a free licence to publish, copy, or licence to third parties a right to use or adapt the material for any purpose related to their business.

“In this case, REA had given a licence to (CoreLogic) RP Data to use material that users uploaded on their website.”

The photographer argued that since he wasn’t the one to give RP Data the licence, they were infringing his copyright.

The court did not agree.

What does this mean?

That intellectual property rights can be passed on through a chain of permissions, even without you knowingly doing it – and it all rests in the contracts you make and the terms and conditions you agree to.

“If you are someone who provides creative work to real estate agents, and you want to be specific about the scope of what can and can’t be done with your content, then you should consider making formal, rather than informal, contracts with your clients,” Ms Porter said.

“If you are a real estate agent or agency, it is always a good idea to not only go over the terms and conditions of any website you use when it comes to marketing, but also have a written contract in place so everyone is super clear on who owns the IP rights and what you can do with the creative material you have paid for.”

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Nicole Madigan

Nicole Madigan is a freelance journalist for Elite Agent.

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