Generally speaking, no. It’s usually never a good idea to use another agent’s listing photographs even if you’ve received explicit verbal or written confirmation from the agent that you can use his or her photographs.

We don’t recommend using another broker’s photos even if you have paid them money for it, or even if you’ve signed some sort of agreement with them or their firm.

There’s simply too much legal risk that makes it not worthwhile to pursue using another agent’s photos. From a risk and reward perspective, it’s always more economical to just pay a few hundred dollars for your own professional photographs.

Can a real estate agent use another agent’s photos for their listing? Unfortunately no.

Using another real estate agent’s property photos for a listing is one of the biggest mistakes owners and real estate agents make, and it’s one of the easiest ways to get sued for copyright infringement.

Incredibly, many novice real estate agents will still think it’s okay to just take photos they find on the internet, because well, it’s on the internet.

Unfortunately for these new agents, real estate brokerage is an extremely competitive space, and stealing the photos of the former listing agent of the property you are now listing is rubbing salt in the would.

Why? Because not only did you win the exclusive vs the former listing agent who had sold (or tried to sell) the property, but you’re then proceeding to use their listing photos without permission.

As you can imagine, most serious real estate agents have their own search alerts set up, and what do you think will happen when they see you list their former exclusive using their photos?

Verbal or even written permission often isn’t enough

Many owners and real estate agents will think that just having verbal or written permission from the former listing agent to use their photos is sufficient. Unfortunately, this is far from the case.

We’ve seen malicious cases where an owner thought she had a good relationship with her former listing agent, who had given her both written and verbal permission to use the previous listing photographs. However, as soon as she listed her property with our team as her new brokerage, the old broker intentionally had her manager email a litigious threat:

Your firm recently listed the above referenced unit for sale. Alarmingly, the accompanying photographs and listing description have been illicitly sourced directly from our firm. Please take immediate steps to remove all improperly obtained photographs, as well as the plagiarized listing description. At 10:00 a.m. tomorrow, we will review the listing for compliance with this directive. In the event that your firm fails to act properly, we will notify REBNY of your egregious breach of ethics, and will recommend penalties and fines to the fullest extent possible under REBNY’s revamped, stricter compliance effort.

Our team was understandably surprised, and responded immediately and professionally to address the issue:

Hi Nancy, thank you for flagging this for us and for giving us the opportunity to take this down. We never engage in plagiarism and it is never our intent to do anything of the nature.

The fact is these photos and the listing description were provided to us by the seller, CC’d. We’ll remove this immediately, but may we also ask to see a link as to where these were previously posted? We couldn’t find any media for a previous listing by your firm online, but presume your team must have already removed them.

Once again, thanks again for flagging this and for your professionalism. Please note that we’ve removed the media and listing description. So sorry about this.

The seller, who was an attorney by profession, was able to then step in with the following:

We did speak to our agent at your firm regarding the use of the photos but it looks like we had a bit of a misunderstanding.  As our new brokers have noted the listing is being taken down, and we will work with your agent to make sure that we have everyone’s appropriate consent before using the photos.

As to the listing description, we jointly drafted it with your agent and don’t think it is subject to any proprietary restrictions by your firm on the content. We’ve had a great relationship with your agent over the years (including buying an apartment this year and a prior 6 month listing of this apartment) and look forward to continuing that in the future.  It certainly was not our intent here to do anything improper.

Having to remove listing photos can irreparably harm your sale process

The above situation is an extremely dangerous example of what can happen if you simply presume that written or verbal confirmation from an agent is sufficient.

In this case, our team had to scramble to arrange new professional photographs to be taken, digitally re-touched, and enhanced after the property had already been listed.

Because of this rather malicious move by the seller’s former agent, her property did not have any photographs at all for the first week of the listing.

Even written confirmation from an agent’s manager may not be sufficient

What about getting the former listing agent’s manager or principal broker to confirm in writing that you have permission to re-use their photos?

Unfortunately, given the legal threats and malicious tactics we’ve seen in the field, even that won’t be enough. To pass legal muster, you would need to have a legally binding agreement signed between authorized parties at both brokerages. You’d also have to confirm that the person signing the agreement from their end is actually someone authorized to sign on behalf of their firm. Lastly, you’d need to run the agreement by your legal counsel.

All of this is an extreme hassle, and still doesn’t guarantee you from a lawsuit (anyone can sue anyone for any reason). As a result, is it worth it? Wouldn’t it make more sense just to pay a few hundred dollars for new professional photography that you unequivocally own?

What if I offer to purchase the old listing photos?

Unfortunately, this leads to the same issues as we’ve previously discussed. Even if you send across a few hundred dollars to the listing agent and get a written receipt or confirmation, it still may backfire and the listing agent could still sue you. Ultimately, you’d still need a custom legal agreement that’s signed between authorized parties on both sides. Then the question remains, is it worth it? You should always have your own professional photographs taken to avoid a legal dilemma like this.

You need a lawyer to review any agreement

Remember that in New York, as in many states, it’s against the law for agents to craft their own legal agreements. This is called the “unauthorized practice of law.” As a result, any agreement you make with another party needs to be reviewed by a lawyer, which means additional fees. Ironically, your legal fees could easily end up costing more than a brand new photoshoot. So again, the question remains, is it worth it?

No, you cannot use photos you find on the MLS (or the REBNY RLS in NYC) for your own listing if they are not yours. If you do, you’ll run into the same issues we’ve described previously, and will very quickly be found out and pursued by whoever does own the photos.

Even more deadly, many of these fines accumulate on a daily basis, leading to massive amounts in penalties if the infraction isn’t addressed immediately. For example, it’s not unheard of for some MLS systems to levy a $50 a day fine, for each day that MLS photos are illicitly used.

There are no laws specifically on real estate photography that we’re aware of, except for general common sense when it comes to copyright laws.

Remember that copyright gives the creator of any artistic or creative work the exclusive right to publish and market their work, i.e. property rights. Copyright also gives creators control over the reproduction of their work, including the ability to sell their work to others.

The Federal Copyright Act of 1976 specifically gave copyright protection to photography as a protected class of creative work, from the moment that the photograph is taken.

One thing to note, the creator is generally the photographer, but it can also be the employer of the photographer. In other words, if an agent hires a photographer to take listing photos, then the agent is the one who is protected by the Federal Copyright Act.

The easiest way to find out who owns a set of real estate photos, presumably that you’ve found on an old listing, is to ask the former exclusive listing agent.

Usually, the listing photographs will be wholly owned by the former listing agent because photography is typically taken care of by the brokerage listing a property.

However, you may occasionally see photos that are actually owned by the seller or former owner of the property. That’s because sometimes the seller will already have professional photographs that are completely up to par, and thus the listing agent didn’t need to hire a photographer in the first place.

Keep in mind however that many MLS systems automatically ascribe ownership in their systems to whomever uploads a set of photos first. Therefore, even if you have an agreement with the owners of the photos to use them, you’ll still get automatically fined by the MLS upon upload. Then you’d have to petition the MLS compliance staff to revoke the fine and show them proof of your agreement. What a hassle!

Regardless of who owns the photos, we highly recommend that you take your own photographs even if you are able to strike a deal with the owner of the photos to use them. It’s far too easy to be sued anyway, even if you think you’ve got an airtight legal agreement.