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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."
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.
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 had my house photos from a Craigslist ad suddenly appear in a zillow listing WITH my copyright notice on them(!). I attempted to contact Zillow with no success. Zillow seems pretty one-sided (aka crooked) if they suddenly find "their" photos valuable while they automatically seek out and siphon photos from other sites without permission.
Too bad I had mod points yesterday instead of today, I'd upvote you.
Thank you. Honestly, I feel a little bad for Zillow (having used them only a couple months ago in buying my house). They've got a brand new general counsel who only started there a month ago, and who, as his first public action, proverbially sets fire to their front lawn. Between the fact that Wagner is obviously in the right, legally, and that she's an absolutely perfect defendant - JHU grad student, humorous in exactly the politically right ways, with a great "local girl makes good" backstory - this is a case that everyone from the EFF to Popehat to NYCL to giant law firms with pro bono departments will be slavering over. "Goliath extractive real estate middle-man attacks sweet, funny grad student" is the sort of case you hope they keep appealing all the way to the Supreme Court at every loss.
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.
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.