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Zillow Threatens To Sue Blogger For Using Its Photos For Parody (theverge.com)
Kate Wagner is facing potential legal charges by real estate Zillow for allegedly violating the site's terms of service by reproducing images from their site on her blog. Wagner's blog is called McMansion Hell -- a Tumblr blog that "highlights the absurdity of giant real estate properties and the ridiculous staging and photography that are omnipresent in their sales listings," writes Natt Garun via The Verge. From the report: A typical McMansion Hell blog post will have a professional photo of a home and / or its interior, along with captions scattered throughout by Wagner. She also adds information about the history and characteristics of various architecture styles, and uses photos from the likes of Zillow and Redfin to illustrate how so many real estate listings inaccurately use the terms. Under each post, Wagner adds a disclaimer that credits the original source of the images and cites Fair Use for the parody, which allows for use of copyrighted material for "criticism, comment, news reporting, teaching, scholarship, and research." In a cease and desist letter to Wagner, Zillow claims Wagner's reproduction of these images do not apply under the Copyright Act. Additionally, the company claims McMansion Hell may "[interfere] with Zillow's business expectations and interests." As a result of the potential lawsuit, Wagner has temporarily taken McMansionHell.com down. In a statement to The Verge, Zillow said: "Zillow has a legal obligation to honor the agreements we make with our listing providers about how photos can be used. We are asking this blogger to take down the photos that are protected by copyright rules, but we did not demand she shut down her blog and hope she can find a way to continue her work."
The site is down, mission accomplished. High fives all around.
Having not seen the blog, it's hard for me to make a guess about how well it would be considered parody.
You can catch it on archive.org.
It's not parody. It's not vaguely related to parody. Anybody who thinks it's parody desperately needs to bone up on their reading comprehension skills.
It is, however, bona fide commentary and criticism for which the pictures are the obviously essential base element. Very clearly fair use.
https://www.copyright.gov/titl...
"the fair use of a copyrighted work [..] for purposes such as criticism, comment [...] is not an infringement of copyright"
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
Yeeeaaahh.... unfortunately, and specially because of the comments on the matter, I don’t think Wagner has a chance here.
Well, not that I know a whole lot on law, but afaik, fair use only has a chance if she didn’t admit that she was turning a profit on it (directly or indirectly).
Respectfully, that's about as 100% wrong as it's possible to be, and even a moment's thought can provide thousands of counterexamples of entities who claim fair use defense from copyright infringement, and yet make a profit. For example, there's Siskel and Ebert, who used clips from movies in reviewing them, and certainly commercially profited from their show. There's the New York Times Review of Books, which includes snippets, and sells both subscriptions and advertising. There's Gizmodo, there's YouTube Let's Play videos, there's Metacritic, there's Rotten Tomatoes, there's the Onion's AVClub, etc., etc. There are literally thousands and thousands of entities that provide critical commentary and review of creative works, without requiring licenses from the works' authors, and most of them even make a profit.
You're right in one part:
And the thing is... for parodies and satire in fair use, the content infringed must be the direct target of it. Subtle difference, but Wagner wasn’t making satire or parody of the photographers’ work, Zillow’s service, or something in the effect of a criticism of cultural tendency. She was using the work done by others to make... architectural criticism, was it?
That is absolutely true, and the headline is wrong. Wagner's work is not a work of parody. However, it's also absolutely irrelevant, because Wagner's work is a work of architectural criticism. 17 USC 107 codifies Fair Use, and states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Criticism is expressly included - even moreso than parody, which really falls under commentary. Wagner's posts are also teaching - while undeniably humorous, they are also undeniably educational about various aspects of architecture.
IAAL, and in particular, an IP lawyer, and frankly, I can't see any way in which Zillow has a claim.
I was checking it on wayback and Google cache and it is a funny site. https://web.archive.org/web/20... or http://webcache.googleusercont...
I love reading mcmansion hell.
For those who haven't seen the site, a typical post consisted of a set of images from a real estate listing with mocking text overlayed. Things like "art from a best western", "how many stuffed animals died to make this couch?", and "color swatch: unholy diaper change". Between these images were pieces of text that sometimes went into more detail about why particular things weren't good architecture.
There were also many posts about architectural history and theory, as well as posts in the 'Mcmansions 101' category, which were equally sassy and very educational.
To me, it looks like her site easily passed the four fair use tests, and skimming through Zillow's terms of use page I didn't see anything that she blatantly violated. afaik, Zillow doesn't actually hold any copyright on most of the images posted to their site. The terms state they do have license to do whatever they want with them, but not that ownership is transferred to them. Not sure if Zillow could enforce copyright on someone else's behalf... I don't know the nuance here, and I would love to hear Zillow's specific reasoning.
They may also just be bluffing, in the hopes that Wagner would rather give up on the site rather than risk an actual lawsuit. Some big companies will file lawsuits not because they can win on merit, but because they can bankrupt the defendant with court costs. It's scary to be on the receiving end of something like that. As much as I would love the site to continue, and see a free speech victory, Wagner may decide it's not worth the effort and risk.
Nub.
You are certainly no lawyer.
I'm not OP, but IAAL (though not a US one).
Firstly, agreements are not contracts.
In the trade we use the two words almost interchangeably. If you want to be pedantic, a contract, is an agreement which the Law will recognise and enforce, but when a lawyer speaks about an "agreement" chances are it is a contract she is talking about.
Contracts are not legally binding unless there is a "meeting of the minds". ...
Yes, but that is to be inferred from the behaviour of the parties. Thus accessing photos on the site might suffice to evidence the requisite consensus ad idem. I wouldn't want to say.
OK Counsel, please explain Carbolic Smoke Ball on that understanding of the "meeting of minds," and how that would differ from accessing of web site.
Take it or leave it contracts ... have been struck down time after time.
By virtue of them being take-it-or-leave-it agreements, or by virtue of unfair terms hidden therein? Some curial authority here please!
Everyday life is replete with take-it-or-leave-it contracts: What real prospect do I have to negotiate the price of a container of milk with the bar-code scanner at my local supermarket, for example.
EULA and ToS contracts are unenforceable
As I'm not familiar enough with EULAs, nor with the case law surrounding online acceptance in my own jurisdiction, a fortiori in any others, I shall not comment specifically. Only to say that it is quite a strong claim to insist that all Terms of Use/Service etc are per se unenforceable. Are you certain you are a lawyer?
Imagine a "You must agree to the ToS before entering." line in small print at the bottom of a flower pot near a public business' front door.
Yet when prominently displayed conditions of entry are entirely enforceable. To return to my local supermarket, it is a (prominently displayed) condition of entry that any bags brought onto the premises may be inspected. The deal here is that the business will surrender their right to sue you in trespass for your agreeing to the conditions.
*By reading this post you legally agree to ...
Before we even get to the statutory safeguards against unfair terms it needs to be noted that this condition is void for appearing at the foot of the message, for which see Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 ;) More generally, past consideration is no consideration, i.e. the comment having already been read one cannot thereafter attach conditions to the prior reading.
[For the avoidance of doubt, this comment is making no assessment as to the relative legal chances of the prospective parties in the present case.]
You're wrong on both counts.
Regarding the copyright issue, had you actually read the C&D notice, you would see that Zillow is claiming copyright infringement, and further falsely claiming that fair use doesn't apply, when it very clearly and obviously does.
Second, the terms of use on their website are immaterial. The publication of content on a website inherently makes that content available to the world. In the absence of a user performing some action that forces the user to agree to the terms and conditions (e.g. signing up for an account), I can't see any plausible way that merely viewing the website would cause that person to be legally bound by those terms in any way, because all rights that would be granted under those supposed terms of use are de facto rights that the user already has. And as best I can tell, Zillow does not require users to sign up for an account to see pictures of houses. So unless the blogger explicitly agreed to the terms of use, the blogger is not bound by them.
Further, even if you somehow could twist the law to somehow interpret those terms of service as binding upon people who did not explicitly agree to them and may not have even read them, in the absence of the copyright claim, Zillow cannot show any actual harm from the use of these specific photos in criticizing the homes in question. In the absence of such actual harm specific to the use of these photographs (harm that would not have occurred if the blogger had gone out and taken his/her own photos of the same houses instead of theirs), Zillow has no standing to sue for a violation of the terms of service in the first place.
In short, Zillow's lawyers might as well have sent this C&D on toilet paper, because it is so full of you-know-what that it stinks from top to bottom.
Oh, but it gets better. There is reason to doubt whether the material in question is even protected by copyright. Ostensibly, a photograph is copyrightable by virtue of the artistic nature of its composition, etc. However, arguably, photographs of a house on a real estate website are typically just whatever shots some real estate agent took, probably more with an eye for showing specific things in the photo, rather than with any attention paid to the composition, angle, lighting, etc. of the photograph itself. Chances are, anybody could walk by and take a very nearly identical photograph with a modicum of effort, which puts it in basically the same category as photographs of artwork, which are generally held to not be protected by copyright.
Further, there's reason to question whether anything on Zillow's website other than their own graphics is actually protected by copyright. It is, after all, just a collection of facts. Nobody would be even asking that question if Zillow's lawyers hadn't stepped in it, but now, thanks to their ineptitude, folks are going to start asking questions, and if they come to the same conclusions that I have, it's open season on all the data contained therein for anyone to use for any reason. In effect, this threat of a lawsuit is likely to backfire in any number of ways, many of which have very serious ramifications for Zillow's ability to remain in business.
Either way, unless I missed something major in my analysis (e.g. the blogger working for a Zillow competitor and using the blog to convince people that Zillow only sells crappy houses), this would appear to be prima facie a SLAPP suit intended to harm a blogger whose criticism of high-end homes has no doubt in their minds reduced the value of those homes, and thus their profits on those sales. This is exactly the sort of criticism that the fair use section of Title 17 was intended to protect. Zillow should be ashamed of themselves, and their lawyers doubly so.
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