Marketing photos

To showcase a property for sale, real estate brokers often use photographs to represent it well and facilitate its marketing.

To do so, can the real estate broker safely use old photographs given to him by the seller of the immovable, another broker, or the real estate developer of a project? The answer is no. Before using these photos, it is crucial to check who holds the rights and what the terms of use are.

The Copyright Act

In accordance with section 2 of the Copyright Act, a photograph is an "artistic work" and is protected by copyright. Section 3 of the Act states, among other things, that “copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public […].”

This exclusive right held by the photographer over his work makes it impossible to publish, distribute and use a photograph without the photographer's prior consent or unless the licence or contract signed with the photographer specifically provides for that. Failure to comply with these conditions constitutes an infringement of copyright and exposes the broker and his selling client to claims or legal action.

Damages arising from copyright infringement

The Copyright Act provides that for each work, and therefore for each photograph, the copyright owner could obtain compensation for statutory damages ranging from $500 to $20,000. The amount is determined based on certain criteria set out in the Act, including the defendant's good faith and the circumstances surrounding the use of the work.

Damages are calculated based on the number of photographs used and not on the number of times a single photograph is used. In other words, a single photograph illegally reproduced ten times would not entitle a person to 10 times the $500 damages, but only to the amount of $500. Conversely, 10 different photographs illegally reproduced 20 times would allow a person to claim 10 times the $500 damages.¹

What to do with old photos?

When a seller sends old photos to his broker to put a property on the market, the real estate broker must verify who is the author. If the seller is not the author of the photos, the broker must obtain from the seller a signed copy of the contract or licence with the photographer. This helps verify whether the use of photos by a third party is authorized and, if so, what the terms and conditions of such use are. This verification is necessary even if the photos were taken for the same seller during a previous marketing of the property.

It may be specified that the photographer retains copyright on all photographs, but that their use is nevertheless permitted. Or that the licence is intended only for the client who ordered the photographs and that it is prohibited to grant a sub-licence for transfer, reproduction or use without specific statements. It may even be specified that the “reuse” of photos is prohibited, even if it is the same seller who wishes to put his property back on the market a few months later. This information may also be included in an initial quote or invoice given by the photographer to the client.

Whether it is the client or the real estate broker, it is essential to obtain the photographer's written permission before using or reproducing photographs.

The real estate broker must document his record to this effect, whether with a contract, invoices sent by the client, or any written exchange with the client or the photographer in this regard. If in doubt, it is better to seek legal advice to confirm the terms and conditions of the agreement before any use.

If there is no clear confirmation that the photographs can be reused, the real estate broker will have to organize a new photo session.

¹ Patterned Concrete Mississauga inc. vs. Bomanite Toronto Ltd., 2021 CF314 (CanLII), par. 61.

Copyright Act: sections 2, 3 and 28.