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Ethics Considerations In Real Estate Photography

Published: 09/07/2014


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Bob in Michigan asks:

How much to remove from photos? Flying my drone for real estate photos, I've followed the philosophy of removing or cleaning up anything that could be done with a broom, a hose or picked-up (dirt on a driveway, yard signs, cars and trash cans). Yesterday I was asked to remove overhead wires.

Should I remove wires (and their shadows), green phone boxes (at the corners of the lot), moss on a roof or repair a patch of bad lawn grass?

As another example, if you're told that the homeowner will be removing their swimming pool in two weeks but they need the photos today, should you cover the pool with green grass today?

What are the legal and ethical guidelines that should be followed?

Last week Dave, in Western Australia sent me some recent links to news articles relating to real estate photography ethics. One from the Chicago Tribune talking about the general concern of digital photo modification as it relates to real estate photography and another specific case that occurred in New Zealand where an agent was busted because he photoshopped some mold out of a photo.

Over the years we've had a lot of heated discussions here about ethics of image modification in the context of real estate photography.  I think the subject is important enough that I have a separate page dedicated to summarizing the consensus that has evolved out of these discussions over the years.

Here is a general outline of that consensus:

  1. Real estate photographers typically work for the listing agent and in some cases will be asked to modify photographs of properties for sale.
  2. Listing agents everywhere have a legal responsibility to not "materially misrepresent" a property. That's a meaningful expression to lawyers since it keeps popping up every time this subject is talked about.
  3. Modifying or removing temporary objects like garbage cans, cars, overcast skies etc is customary and generally not considered materially misrepresenting the property.
  4. Removing permanent objects like power lines, telephone poles, neighboring homes etc. are customarily considered materially misrepresenting the property because they hide undesirable permanent property features.
  5. Landscaping seems to be an area where not everyone agrees. Landscaping seems to be in between permanent and temporary. Many people believe that fixing defects in the grass or landscaping is OK whereas others believe it is not OK. When there is some question about if a feature is permanent or temporary it's safest to treat it as a permanent feature.

In summary the photographer is working for the listing agent, not the potential buyer and representation of the property is the listing agent's legal responsibility, not the photographers. However, prudence suggests that if the photographer is asked to modify photographs they believe materially misrepresents the property, they should document in writing the fact they are modifying the photograph at the agents request.

Larry Lohrman

15 comments on “Ethics Considerations In Real Estate Photography”

  1. I completely agree with your bolded point, Larry. It's the agent's responsibility to market the listing in an accurate manner. We're often asked to remove power lines, fix landscaping, change paint color, ect. We'll do all of these things (and charge a hefty price for it) but we always get the client to sign a form stating that the photos have been modified and do not represent the current condition of the home. We also ALWAYS send the original non-modified images as well and recommend in writing that they use these for marketing the listing.

  2. Look at restaurant or any food photography, look at a photo of an apple for sale in a supermarket, look at a model wearing makeup in a magazine.

  3. Shaun, the problem with the examples you listed is that when you go to the store, you aren't buying THE apple in the picture, you are buying AN apple. You aren't buying THE model, you are buying the product the model is promoting. In those cases there is no way to 100% duplicate what you see in the photo, I doubt the apple exists any longer and you aren't the model so even with everything the same you wouldn't look the same.
    As stated in the article, things like the sky are subject to change, or a dandelion in the yard. Something like a power pole or neighbors house isn't subject to change (unless there is an act of nature).

  4. Yes Ben I agree, but you expect the product to be very similar. Take a McDonalds burger, a photo may entice you in but the product looks nothing like it. Marketing is about making the product looks its best.

    But saying that you should tweak the photo to make it looks its best but never delete cracks/damp/powerlines/buildings behind/poor paint

    It's all common sense

  5. The photos are bait not a contract. Purchases made sight unseen will be regretted. Hotels are rarely attractive as represented yet I scarcely hear a peep about that.

  6. We aren't doing catalogue photography.
    Nobody buys a house based on photographs. There is no PayPal link on the web site.
    Our photos can only get people to look at a home and possibly make an appointment with an agent.
    For the potential buyer we provide some very preliminary information about the appearance of the house, which will help them weed out those that are completely unsuitable.
    For the agent we help generate the opportunity to sell a house.
    We almost always use wide angle lenses, which invariably make rooms look larger than they actually are. We often use supplemental lighting, which can completely change the character of an interior space. We may edit out a crack, which could be fixed later, or brighten colors to make a room look cheery. We'll drop in a nice sky, hide some weeds, and patch some brown spots on the lawn. But it would be dumb to go much farther with this sort of thing because if buyers drive up and see something quite different than what was shown on-line they'll just drive away, muttering unkind words about us and our damn Photoshop trickery. Most significantly, it wastes our client's time on a no-show appointment.
    I think we have an obligation to our client to make the home look as attractive as we can in order to attract potential buyers, but if our photos don't look at all like what the buyer sees when they arrive it's counter productive. Or at least that's what I tell clients who ask for too much retouching!

  7. An interesting issue. I agree completely that manipulating the photo to remove or change fixed elements is misrepresentation. Skies, etc are always there but the display of them changes, something that is at the whim of nature and will never be the same between when the property was shot and the potential buyer comes to see the house. Frankly I would add in grass since that seems to change from one watering to another. I would think that bare patches in the foreground where they are exaggerated by a wide angle lens should be appropriate for fixing since their importance is misrepresented by the wide angle lens right from the start. But to put in a luschious lawn where there is dirt is misrepresentation.

    But then we get into another area. Sure Photoshop changes can be construed as misrepresentation, but a photo is right from the start a misrepresentation of reality being a 2 dimentional representation or you could say interpretation of anything especially a house and grounds. Different lenses will represent the house and grounds in different levels of distortion making closer features larger in proportion to those further away; they can change the feeling of room proportions and size; color can be changed by the camera itself depending on its ability to judge the color balance of the light and render the colors inherant in the dyes of fabric and colors in the paint.

    So this whole discussion can veer into a grey area of interpretation. For example, if the camera has rendered a pink stucco as orange in a pre-sunset light, is it wrong to manipulate the photograph to bring it back to pink which is the correct color but not the color captured by the sensor? The color balance of daylight is different at different times of day and different weather conditions, so is it wrong to bring that into line?

    Then there is the manipulation at the time of exposure by hiding the utility pole behind the tree that is also on the property or behind the Victorian tower on the corner of the house? Technically, it could be considered misrepresentation just as composing the photo to crop out neighboring houses painted day glow pink and green or the gravel processing plant.

    It seems to me that there has to a flexible sliding scale of what is actually meant by misrepresentation as opposed to showing a property in its best light (so to speak) without being obliged to disclose all the negative aspects of the property.

    I try to make the property the star since the photos are marketing designed to get someone interested in buying a property to pick up the phone and call a broker. Then once interest is peaked and agent/broker contacted, it is up to the broker to show the house and close the sale. The photos just prime the pump. I am pleased that the usual comment I receive from those first seeing my photos and then seeing the property is that when they see the property, it is exactly as they expected from looking at the photos and videos first.

    Which all goes to say, I think, that our job is to accurately but flatteringly present the house and property to the potential buyer, to attract those who will be attracted to this property instead of turning them off. And stimulate them to call the broker. But this is true of all advertising photography. Our job is to get people to stop flipping the page or scrolling down the screen and focus on the property long enough to look at more photos, then get to the verbal description and then, if it meets their interest call the broker. When they then see the property, they will make up their own mind if the pros outweigh the cons.

    As a current buyer myself at the moment, I go crazy when I have to wade through photographs that have been gang processed in an HDR software program heavy with "halo" effect, dramatized colors dripping with over saturation, all of which obscures the details and ambiance I want to see. Almost as bad as the iPad photos that make room look like they were shot through a pipe. And other photographers who make it look easy by shooting the property cleanly but capturing the essence of the house and property with their skill. So bad photography itself is a misrepresentation of a house and property. This is a big field to discuss when we approach truth in photographic representation and it is not limited to Photoshop adjustments.

  8. I think this is bit of over-dramatization.

    An attractively photographed house will get interest.
    A poorly photographed one will get jeers from photographers and possibly potential clients along with a lower price.
    The average person will not notice clean up and over -the-top retouching will provoke a chorus of "WTH?" IF they notice anything.

    Some of the luridly colored HDR images are far less "accurate" representations of anything on this planet yet I see them used with abandon and no discussion of ethics.
    I have also visited houses where the rooms have been painted yet no one comments. Every realtor learns the phrase "it needs just a bit of TLC" in their first day on the job.

  9. I have a rather useful little phrase that has helped me explain to agents what I can and can't photoshop for them. It can come across a little snarky, so I always apologize first, but it totally works: "If you can change it, I can change it."

    The meaning is very obvious when it comes to things like telephone poles, where the agent clearly doesn't have the resources to hire a utility company to move a pole. Also obvious for things like nail holes that can be patched in minutes.

    But where it is most helpful are in cases like your examples of mold and landscaping. The most common situation I've experience are carpets that haven't been cleaned yet. The agent and I have a quick chat about the likely hood of the stain coming out. Knowing a cleaner is coming and just the agent say it out loud that they are confident it will come out is good enough for me to feel like I'm doing the ethical thing when I remove it in post.

    This phrase also works well with landscaping. It is entirely within the agent, homeowner or the next owner's means to take better care of their lawn, so I see no conflict in making the grounds look like the potential it could be.

  10. I really like the comment, "If you can change it, then I can change it." So the things that almost every agrees that we can change and should never change are very good guidelines. Since I am the listing agent I will touch up a photo if the seller says honestly that they are going to change something--like patching a hole in the wall, etc. If they then don't do it I can always go back to a version of the photo that did not have those changes.

    One comment I disagree with is that "no one buys a house from the pictures." I have sold (had a signed Offer to Purchase contract) two houses ($800K and $1.2Mil) to buyers prior to ever meeting them or then seeing the house. They did, however, have escape clauses in the OTP if the house did look materially different than in the pictures. In today's on-line, international world, the pictures and information you have on line about a property is what will sell the house to international buyers. In the two cases cited above, both buyers were from New York (houses on Cape Cod).

    I have created pictures of houses with major features that DO NOT EXIST. Features like a new roof line, hardwood floors instead of tile, etc. HOWEVER, these photos are not put in MLS and they are presented to buyers as "Phantacy Photos." So I had not qualms about these photos at all.

    Not mentioned yet is the issue of cropping. You can crop out the neighbors house without actually changing the picture (or just frame the picture so the house is not in it.) Real estate agents are required to disclose any/all known material defects in a property, but they are not required to point out negatives about a property that are not defects (like a purple house across the street, or a horse farm next door). Personally I would not mention the purple house, but would mention the horse farm in the MLS description.

  11. As a Realtor I attend these boring mandatory ethic meeting required by the Association. Invariably, I hear the clueless dimwit in the audience that likes to hear themselves talk with an assertive authoritative tone on subjects they clearly know nothing...and rarely ever challenged as the audience doesn't know otherwise. At the last one, one stood up and asserted that ANY photoshop was misrepresentation. Oh did he ever step into it with me in the audience as I took on his challenge and asserted NOT using photoshop was a misrepresentation with most photos taken with an iPhone or P&S misrepresenting the property. Essentially, no camera/film/sensor has been created yet that comes close to camera known as the eyes and brain and it takes photoshop to correct and bring close to eyes/brain. Cameras blow out windows with correct exposed rooms or show windows in dark dungeon like rooms that the eye/brain adjust the dynamic range automatically. Similarly, slanting walls, cabinets, doors, windows misrepresents a perfectly sound home as structurally unsound where the eye/brain automatically make the correction. Some may contend that "people know" the walls are not actually slanted, at which point I reply "3 seconds in Photoshop/Lightroom to correct - you're not willing to invest 3 seconds in your client?"

    For Realtors I shoot for, sometimes they will ask be to take out houses, power lines, etc and I tell them there are 2 reasons I don't/won't. First, remind them of misrepresentation but if they persist advise them they couldn't afford it as I quote them my commercial rate where I can do that. That said, I do minor adjustments like removing the sign (branding) if the sign guy beats me to the property, sky - either replacement or graduated filter adjustment as I do live in the "Sunshine State". Likewise greening grass that is dormant 2 months of the year. Others at my disgression, like the house that had the sprinker system put in with dirt trenches filled but the grass hadn't covered yet. Also, critical framing to minimize distracting permanent structures - wires, neighbors, and even that sign so I don't have to re-construct complex structures in it's removal.

    a link to an article on trulia about false advertising.
    This might be a question to be put to the board of realtors in your state asking them to define what constitutes truthful photography and what is not.
    truth in advertising laws do define it but the real estate industry doesn't have a true stance on this the way they have on disclosure issues.
    I think if any board took it on or even say inman news or trulia it would cut through the debate.

  13. its called MARKETING! I know i'm in the minority, but MARKETING is designed to get the buyers to come look. If they purchase AFTER they see the house with their EYES then its their problem if some tiny pic in a magazine was photoshopped. If they buy it sight unseen they should have a good BUYERS agent and maybe hire someone to take photos for THEM from a documentary point of view instead of a MARKETING one. Personal responsibility is what it is called......dont blame a photograph for your stupidity....M-A-R-K-E-T-I-N-G...then again all the cheeseburgers that look so good have a bunch of skinny supermodels eating them in the Mickey D commercial and I'm sort of pissed that i'm a fat boy and my burgers taste like crap! WHO do I sue?....Hah, can you tell I represent sellers mostly?

  14. I fully agree with the statement " if you can fix it, I can fix it. I think there is a huge difference between " falsification" and "enhancement". One of the things that I find in my area that is a coastal area, is that agents want water or views of water in pics. Even if its miles away. I once had a little old lady(the vendor) stand next to me while shooting the view of water from her balcony that was some 1.5 klm away. I took the shot with a 14-24 nikkor set at about 24 mm and she asked to see the image on the backscreen (chimping) .
    I showed her the image and her words were "that's a garbage image, I can do better with my camera". Trying to be as polite as possible, I said that I was always willing to learn, would you mind showing me how YOU do it. She returned with a small pocket digital and proceeded to take the pic, going straight for the zoom button on top of the camera and setting it to maximum zoom. I then said that you can't use a Big Zoom(not wanting to seam condescending to her lack of knowledge as to long focal length) to take the picture of the view. She replied "why not". I said because it is false and misleading, its like you standing at the front door of your home when you have an open house inspection and you hand a pair of binoculars to the people coming through the door and say these go with the home to see the view better because that's how the picture was taken. I will at the request of the agent crop an image slightly, but if they(the agent) modify the images that i have provided as a close and accurate portayal of the property, then that my friends is out of my hands.

  15. Photographers are hired to produce a product desired by the client. The agent is liable and responsible for the marketing of the property.
    As long as there is a paper trail between the agent and the photographer it is in the agents realm of responsibility to avoid "ethics" problems.
    If the agent insists on changes to the images, how about blurring out the neighbors house, fence, rusty cars or other visual distractions?
    How can the shooter be held to account?

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