It’s often a photograph that will entice us to get up, go out, and view a property for sale. Strong images can mean the difference between a REALTOR® finding the perfect buyer or seeing a listing languish. But the question of who owns those images and what rights attach to such ownership may be overlooked.

As the law currently stands, the default owner of the copyright over listing photographs is the creator of the image. However, that has not always been the case. Confusion often arises among REALTORS® who may wish to re-use old listing images or share them via various media platforms. Diligent efforts need to be made to ensure REALTORS® protect themselves from being on the receiving end of a copyright battle with photographers and other owners of these images.

Pre- & Post-2012

In Canada, the governing legislation on ownership of a “work,” which is defined to include photographs, is the Copyright Act (the Act).¹ Copyright in a work comes into existence when that work is created.²

Section 13(1) of the Act confirms the creator of the photograph (or photographer) is the default first owner, and not the REALTOR® or brokerage who paid for the images. Section 13(1) states:

13(1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.

This section is not limited to photographs, but also includes other original literary, dramatic, musical, and artistic works in a fixed material form. However, for the purposes of this article, we are focusing solely on ownership rights of photographs.

Prior to 2012, if a REALTOR® requested and paid for photographs to be taken for a listing, the REALTOR® was the default owner of those images pursuant to Section 13(2) of the Act, which stated:

13(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.³

Section 13(2) was repealed in 2012, removing ownership rights of those who requested, and purchased, photographs. This means that since 2012, and current through today, the original creator of the photograph is the default owner of all listing images a REALTOR® requests and obtains, in the absence of any agreement to the contrary.

To avoid ownership and copyright issues, a REALTOR® (through their brokerage) will often enter into an agreement with the photographer to either assign or license the photographer’s copyrights to the images. An assignment involves the transfer of some or all of the photographer’s rights to a REALTOR®’s brokerage. On the other hand, a licence gives a REALTOR® permission to use the photographs under certain conditions, while the photographer maintains ownership rights.⁴

Pursuant to Section 13(4) of the Act, the photographer can only assign or license their copyright through a written and signed agreement. REALTORS® should never rely on verbal or “handshake” deals to protect their rights to use listing photographs.

Standard agreements will likely include language whereby the photographer agrees that the photographs under discussion constitute a “work” as defined in the Act and that they are the first owner of those works. The agreement will typically set out the scope of use of the images – either through assignment or licence – and irrevocably assign or license rights and title, including copyrights in the images, to the REALTOR®’s brokerage. It is important that the photographer warrants that each image created pursuant to the agreement is an original work created, or owned exclusively, by the photographer, and that they do in fact have the legal rights to assign or license the copyright.

A REALTOR® should always consult a lawyer prior to entering into any licensing or assignment agreements for the use of listing photographs.

Caution for REALTORS®

While it is tempting to re-use or share photographs from previous listings, REALTORS® must be aware of the potential legal and professional issues that may arise from doing so.

Copyright Infringement

By using or sharing photographs without proper ownership or licensing rights, a REALTOR® faces the risk of a complaint or lawsuit for copyright infringement. Although not a common occurrence, the photographer, as owner, is well within their rights to commence legal action for the unauthorized use of their images.

The 2011 BC Supreme Court case Century 21 Canada Limited Partnership v. Rogers Communications Inc.⁵ dealt with this very issue. This decision addressed various allegations of breach of contract and copyright infringement, and specifically considered the defendant’s access to and use of the plaintiffs’ website and contents, which included listing photographs. Although decided prior to 2012 (when ownership rights changed), it is nonetheless helpful in understanding what constitutes copyright infringement and any exceptions to such infringement set out in the Act.

In this case, the defendant had created a website that featured photographs and written descriptions of property listings hyperlinked to the plaintiffs’ website. The plaintiffs, Century 21 Canada Limited Partnership and two licensed real estate agents, who were found to hold the images’ copyrights, claimed copyright infringement for the defendant’s use of these listing descriptions and photographs.

Ultimately, the court held that the defendant was in clear violation of copyright by posting even one photograph and a substantial portion of each real estate listing taken from the plaintiffs’ website.⁶

The court also addressed the fair-dealing exception for copyright infringement set out in Section 29 of the Act. Fair dealing for the purpose of research, private study, education, parody, or satire does not infringe copyright. However, any such assessment is done on a case-by-case basis and takes into consideration the purpose, character, and amount of the dealing, the nature of the work, available alternatives, and the effect of the dealing, in determining whether or not a dealing is fair.

Despite advancing an exception defence, the court in Century 21, supra rejected the defendant’s argument and found that reproduction of property listing descriptions and photographs did not constitute fair dealing, and thus, was not exempt from copyright infringement.

Misrepresentation

It goes without saying that all advertising material must accurately represent the property that is being listed for sale at the time of the sale. Descriptions and photographs must not misrepresent the current state of a property and its surrounding areas. The BC Financial Services Authority (BCFSA) has issued Practice Guidelines on Advertising (the Guidelines),⁷ which aim to assist REALTORS® and provide BCFSA’s interpretation of the Real Estate Services Rules (the Rules)⁸ and all other applicable legislation.

The Guidelines specifically caution REALTORS® from publishing any advertising, in any format, that is false or could potentially mislead a consumer. Such misrepresentation may include dated photographs that do not reflect the state of a property at the time of listing. This obligation upon a REALTOR® is also codified in Section 41 of the Rules, which state:

41 A licensee must not publish real estate advertising that the licensee knows, or reasonably ought to know, contains a false or misleading statement of misrepresentation concerning real estate, a trade in real estate or the provision of real estate services.

Tips & Considerations

What may be an innocent oversight in using photographs without proper authorization, can result in unnecessary and complicated legal claims of copyright infringement. Below are a few practice points to keep in mind when dealing with photographs in the context of real estate transactions:

• The photographer retained by a REALTOR® to create listing photos owns the copyright of those photos unless there is a written agreement to the contrary.
• Do not use, share, or re-post any photographs (in any capacity, limited or otherwise) you do not have copyright to without written agreement from the owner of the images.
• Prior to using or reproducing photographs from a listing that is not yours, ensure you are aware of the agreements the listing REALTOR® entered into and their ability (or inability) to share such photographs.
• Prior to relying on photographs provided to you by a client, confirm whether your client has the proper authorization to share and reproduce these photographs.
• Ensure you are complying with any specific advertising requirements set out by BCFSA and any real estate board or association you are a member of.
• Review all standard pro-forma assignment and / or licensing agreements attached to photographs that were created prior to 2012 to ensure they accurately reflect amendments made to the Act respecting default ownership.

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	1.	Copyright Act.
	2.	What you should know about copyright (Government of Canada).
	3.	Archived Copyright Act (2012).
	4.	Transfer ownership (Government of Canada).
	5.	Century 21 Canada Limited Partnership v. Rogers Communications Inc. | CanLII.
	6.	Ibid., at paras 201-205.
	7.	Advertising Guidelines | BCFSA.
	8.	Real Estate Services Rules.

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