An appeals court agreed with a lower court’s decision: Zillow’s use of VHT photos was copyright infringement. Agents often hire VHT to take property photos, but the allowable use of those photos is generally spelled out in a contract.
SEATTLE – An appeals court upheld VHT’s rights to control use of its copyrighted photos and in a lawsuit – VHT Inc. V. Zillow Group Inc. – ordered Zillow to pay $2 million in damages.
The owner of any photo that appears online enjoys copyright protection of that image. Anyone that copies a photo and uses it, even with attribution to the source, runs the risk of a copyright infringement accusation.
VHT, a large professional real estate photography studio, filed suit against Zillow alleging copyright infringement for use of its photographs on its Zillow Digs website.
VHT’s clients largely consist of real estate agents, brokerages and listing services. These groups hire VHT to photograph properties for marketing purposes, such as listing photos for an MLS or other marketing. VHT edits the photos, saves them in their electronic photo database, and then provides them to clients based on a signed licensing agreement. That agreement generally explains how and where the VHT-owned photos may be used.
Zillow, however, used VHT photos on its “Listing Platform” (primary property display) and on a section of the website called “Digs,” which is geared toward home improvement and remodeling.
VHT took issue with Zillow’s use of its photographs on the Zillow Digs platform, claiming that use did not fall under the guidelines in the licensing agreement signed by the brokers, agents or others who were direct parties in the agreement.
The court agreed, saying, “Zillow’s addition of searchable functionality on the Digs home design webpages was not fair use.”
Zillow argued that VHT failed to register the photo copyrights with the U.S. Copyright Office in a timely fashion, but the court disagreed with that argument, partly because copyright protection begins under U.S. law as soon as a work is created – not when it’s registered with the copyright office.
Zillow also argued that the photos in question were registered as a compilation. As a result, they should only count as “one work,” which would allow VHT to receive only one award for damages. Statutory damages for infringement with respect to any “one work” range from $750.00 to $30,000.00.
However, the issue focused on 2,700 VHT photos, and the company disagreed with the “one work” proposal. VHT said each photo has its own independent economic value, an issue discussed in detail by the appeals court.
According to the court, although VHT licensed the individual photos in a database, the database itself, which was considered the “one source,” was not published – and that Zillow used each photo individually for its Digs platform. As a result, the court sided with VHT and confirmed that Zillow infringed the individual photos, and that each of those 2,700 photos had independent economic value. Consequently, VHT was entitled to statutory damages for each of those 2,700 infringements.
The court included language from a Seventh Circuit U.S. Court of Appeals decision that provided an example of compilation vs. one work:
“Although independent economic value is just one factor to consider, the Seventh Circuit explained its relevance by way of an analogy that resonates here: [T]hink in the first instance of the multiple protected works as a quilt and then ask whether any one individual patch has discernable, independent economic value, whether once separated from the quilt a particular patch lives its own copyright life (as “one work”) or instead whether the value lies in the patches’ combined assembly into the quilt as a whole (as a “compilation”).
Big decision also applies to individuals
For brokers and individual agents, the VHT v. Zillow decision is a warning: If you use photos found on the internet or elsewhere and use them without permission – in marketing, advertising, etc. – it could be a copyright issue that costs you money.
“Many of our members use professional photographers and have license agreements with those photographers,” the Illinois Association of Realtors said to its members. “Photographs may also be taken by agents, homeowners and brokerage employees. Be sure to obtain an agreement with the creator of the content and review those agreements carefully to confirm whether you have total rights, as in a work made for hire, or what limited rights you have in those photos and how those rights permit you to use the photos.”
The National Association of Realtors® (NAR) has a substantial copyright section that provides sample license agreements and other tips to reduce the risk of copyright infringement claims.
Source: Illinois Association of Realtors
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