Release Date: 01/03/2017
QUESTION: A former client has advertised their home as For Sale by Owner on a website, and the FSBO advertisement uses all the pictures that I took of the client’s home when I was their listing agent last year. The listing agreement has expired, and the former client has not asked my permission to use the pictures. Can I tell the former client to take my pictures down from the FSBO advertisement?
ANSWER: If you personally took the photos, then you own the copyright to them. Paragraph 15 of the Exclusive Right to Sell Listing Agreement (Standard Form 101) gives you the right to use photos provided to you by your client, but it does not give the client a right to use material that you create during agency. Standard Form 101 also does not give the client any right to claim that your photos were created as a “work made for hire” under copyright law.
If you have not given the former client permission, either written or verbal, to use your photos, then you have the right to ask that the photos be taken down from the online FSBO advertisement. You should know that you may have other options besides just requesting that the photos be taken down. The U.S. Digital Millennium Copyright Act provides a mechanism for you to notify an internet service provider (ISP) of infringement. You may also have a right to pursue damages. To make sure that all your rights are protected, you should consult with an attorney before taking action.
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