This would indeed be awfully strange, but we will have to look at the law related to copyright and ownership.
The “creator” is entitled to the copyright, which basically as it says is “the right to make copies” of the original work.
The Monkey “Selfie”
David Slater was a nature photographer from South Wales. He went to Indonesia in 2011 to take some nature photographs of “Celebs Crested Macaques” (a type of monkey).
He took lots of pictures himself and then he set up the camera on a tripod with a remote clicker. Soon enough, a monkey arrived and took a picture of herself.
Shortly after making the photograph available, it was copied by others who refused to pay a royalty fee for its use.
Eventually, a US Court ruled in 2014 that the monkey was the creator and not David Slater. The monkey was a monkey and could not hold a “copyright”. That meant that the photograph was in the public domain and free to everyone to use and make copies.
Real Estate Implications
There are photographs commonly used in the marketing of real estate. Agents will hire photographers to take those pictures. Who owns the “copyright”? The answer is the photographer. That was the person who took the picture and created the original work.
Night time Photographs
Let’s assume that someone sets up a camera to take pictures in the rear yard. Who is going to come up on the deck or the porch in the middle of the night? Coyotes, racoons, squirrels, deer! If they trigger the shot themselves, by their motion, is that any different from the monkey selfie?
Now, I’m not saying that you are likely to be on the wrong end of a copyright lawsuit from a monkey or a racoon, but you might not own that photograph.
Public Domain Image
Let’s assume, a picture was taken of a deer grazing in the rear yard at night, the lights come on, the picture is taken and then that image is used to market the property.
Five years later, the new owner when selling the property can use that same photograph. You might not be able to prevent it. The image is in the public domain, and you would not hold the copyright. And, “yes” I do know that you owned the camera, you set it up, it was your alarm system that kicked into action, it was your spotlights that illuminated the backyard, but is that enough or are you caught by the “monkey rule”?
Note: the picture used here is a real monkey selfie, taken with David Slater’s camera.
Brian Madigan LL.B., Broker
So…. Does that mean Agents can…. Or cannot ….. refuse to let you use Old Listing Photograghs…. ( assuming they are usually not taken by them but by a professional photographer ….) Who is unlikely to care…..
Likely, it is the photographer who owns the copyright. This is why people will see the main lobby of a condo in someone else’s listing. The photographer just does one shoot and re-sells them.