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Zillow Threatens To Sue Blogger For Using Its Photos For Parody (theverge.com)

Posted by BeauHD on from the legal-hell dept.

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."

10 of 145 comments (clear)

  1. Last I checked... by BronsCon · · Score: 5, Insightful

    Parody is fair use and Zillow can suck it.

    --
    APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
    1. Re:Last I checked... by dgatwood · · Score: 4, Insightful

      Parody is fair use and Zillow can suck it.

      This isn't even parody, which is a somewhat grey area because one man's parody is another man's ripoff.

      No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    2. Re:Last I checked... by Lumpy · · Score: 4, Insightful

      In the USA it is actionable. All you have to do is outspend your opponent, does not matter if something is legal or not.

      This is how the US legal system works now.

      --
      Do not look at laser with remaining good eye.
    3. Re:Last I checked... by Scarletdown · · Score: 4, Insightful

      Parody is fair use and Zillow can suck it.

      This isn't even parody, which is a somewhat grey area because one man's parody is another man's ripoff.

      No, this is criticism, and as such, falls so solidly into the fair use bucket that I'm embarrassed for Zillow's lawyers and seriously question how they could possibly have passed the bar exam if they think the infringement is actionable.

      It's a shame that since fair use is actually a part of copyright law, that those who attempt to suppress fair use do not get charged with copyright infringement, and all the penalties it entails.

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      This space unintentionally left blank.
    4. Re:Last I checked... by Anonymous Coward · · Score: 2, Insightful

      *

      IAAL and this is how it works.

      Then you are a bad lawyer and are presenting legal advice to the public. A bad move.

      An agreement was entered upon. It doesn't matter what the law is as long as there was an agreement.

      You are certainly no lawyer. Firstly, agreements are not contracts. Contracts are not legally binding unless there is a "meeting of the minds". In non-lawyer speak, which I am sure is the only kind you understand: both sides must be able to negotiate the terms. Take it or leave it contracts with not even the opportunity to negotiate or even contact the other party for negotiation have been struck down time after time.

      Secondly, EULA and ToS contracts are unenforceable. 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. That ToS could say anyone entering must pay the business owner $500k per month for the rest of their lives. It really does not matter. They are unenforceable. If you don't think so, check out the ToS you have agreed to for this discussion post.

      *By reading this post you legally agree to pay every AC on slashdot 40% of your current yearly earnings per day, every day, until 2040. You waive your right to legal counsel and your right to sue. Any and all conflicts will be handled in arbitration by the most biased sonovabitch I can find at your expense.

    5. Re:Last I checked... by Dunbal · · Score: 4, Insightful

      "I Am A Lawyer" doesn't mean shit. It will take all of 10 minutes to find another lawyer who will say exactly the opposite. It's how you parasites make money.

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      Seven puppies were harmed during the making of this post.
    6. Re:Last I checked... by Calydor · · Score: 4, Insightful

      Just because a theory has already lost in court doesn't mean a big company can't use it to scare the average citizen.

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      -=This sig has nothing to do with my comment. Move along now=-
    7. Re:Last I checked... by Organic+Brain+Damage · · Score: 5, Insightful

      It's more than just a scare tactic. Filing what you know is a losing lawsuit is often a winning strategy when there's a large imbalance in wealth between the parties invovled.

      The blogger is a grad student. Most grad students don't have a spare $50,000 for attorney fees. Without an attorney, the grad student will likely not succeed in court (thanks to attorneys making court opaque and inscrutable in what's effectively a massive confluence of rent-seeking behavior).

      American justice is often for sale.

  2. Re:Thoughts on it... by Anonymous Coward · · Score: 3, Insightful

    Usual IANAL... I can see that this would be unlikely to win on a copyright basis. Though I could see one stretch in that the criticism is of the house in the photo - not on the merits of the photo itself.

    I think that this is just plain stupid behavior on zillow's part.

    One way that this might still be pursued legally is if the TOC for the site - as a contract - includes the term that you will not use images from the site for any / review purpose. As a result, you wouldn't be able to rely on a copyright defense - you'd be trying to fight a contract term (and I loathe TOCs and wish there was more on their validity or invalidity) instead.

  3. Re:Thoughts on it... by Theaetetus · · Score: 4, Insightful
    This really should be upvoted.

    Usual IANAL... I can see that this would be unlikely to win on a copyright basis. Though I could see one stretch in that the criticism is of the house in the photo - not on the merits of the photo itself.

    That is an absolutely brilliant and nuanced argument, and the best I've seen on Slashdot or anywhere else on this topic. I think it likely fails because the counterargument is that it can be extended to, say, film, by saying that critics shouldn't be allowed to review movies, because they're criticizing the acting and script, rather than the cinematographic efforts of the camera operator. And yet, that's clearly fair use and inconsistent with 17 USC 107. I'd guess it would come down to something about how photography, in addition to being the efforts to take the picture, also includes the creative effort in choosing the subject.

    I think that this is just plain stupid behavior on zillow's part.

    One way that this might still be pursued legally is if the TOC for the site - as a contract - includes the term that you will not use images from the site for any / review purpose. As a result, you wouldn't be able to rely on a copyright defense - you'd be trying to fight a contract term (and I loathe TOCs and wish there was more on their validity or invalidity) instead.

    Again, a good thought, but these images were all publicly available on the site, without any need to, say, create an account or agree to be bound by the TOS terms. In other words, a contract claim doesn't apply, because the contract was never actually formed. Zillow can say, "if you want to access my website, you agree to be bound by these terms," but if they also allow people to access the website freely, then there's no additional consideration paid by the person they're accusing of breaking the terms, and with no exchange of consideration, there's no contract.