In one of the most shocking photo theft cases in recent memory, Zillow are being sued for around $81 million by a real estate photographer who claims the company used more than 543 of his images without his permission.
George Gutenberg, based in California, has filed a lawsuit against the company for copyright violations. Court documents reveal that he is seeking a bench trial, and is after damages — including attorney’s fees and court costs — and that the company cease usage of his copyrighted images. He says Zillow took photos from Multiple Listing Services (MLSs) rather than using the listing data that was syndicated to them.
He is hoping for “an amount to be proven or, in the alternative, at Plaintiff’s election, an award for statutory damages against Defendant in an amount up to $150,000.00 for each infringement pursuant to 17 U.S.C. §504(c), whichever is larger.” On that basis, given that he is seeking compensation for 543 images, the total amounts to at least $81,450,000.
Gutenberg’s contracts mean that he retains the copyright to all photographs taken of any property he photographs. He permits agents a “limited license to use the photographs for up to one-year purposes of marketing the property.” The license is clear in that “it is not transferrable and prohibits third party use without permission from Gutenberg.”
Zillow have been in similar trouble before, paying out over $4million after a real estate photo company took action against them over the usage of some 28,125 photos.
Gutenberg’s case continues.
Lead image credit: Alexander Andrews on Unsplash.
Is it that hard to check on a photo's ownership before using it? I hope this costs Zillow big time.
Zillow is just an aggregate website that pulls its data (including photos) from other sources. I would think their legal team would have learned after a recent $8.3m lawsuit lost to VHT.
This case is pretty incredible, and while the amount is insane, the argument has merit. About 50% of my commercial photography is high-end, luxury real estate, and I constantly see my photos ripped off online. Not just by Zillow, but by other agents that are "showing the home" or "promoting" the listing to potential buyers. What they're actually doing is posting high quality images to their social media to attract viewers, likes, and comments, without credit. It's a dodgy business, hopefully this case opens some eyes and provides clarity on copyright and credit due.
Unfortunately this won’t go anywhere. Once you upload to MLS, they own the images. Zillow has a contract to pull images directly from MLS. Zillow will argue the images aren’t owned by the photographer because they got them from the Multiple Listing Services. You lose the rights to the images through MLS. The only thing you can do, is if the listing is not sold by the original contracted agent and another agent takes your images from Zillow, is to bill the new agent. Aside from that there isn’t much you can do. I have probably somewhere in the neighborhood of 1000 images or more taken from the MLS by Zillow.
If the photographer's contract explicitly states that he retains the copyright of the images and the agent is only granted a limited license to use them for marketing, the agent actually is incapable of transferring the ownership of said images to MLS even if the MLS agreement might state this to be the case. Only the photographer who owns the copyright can transfer ownership.
Then the photographer has an issue with the agent. And any real estate photographer that tells an agent they can not post in the MLS is out of a job.
It seems to me that MLS and Zillow still have a responsibility to check that the copyright is indeed secured and that the image can be used. As far as I know, the MLS does not have any procedures for submitting paperwork transferring the copyright nor does it have any procedures in place for verifying that the person submitting the image actually own the copyright to the image. Zillow similarly has no such procedures.
The MLS and Zillow DO have a legal responsibility, but that responsibility unfortunately ends at the point where the realtor uploads the photos and agrees that they own the copyright and are giving the MLS full copyright and usage rights. So by trickle-down, the final legal responsibility lies on the agent who uploaded the photos in the first place and, probably not reading even an inkling of the agreement, because why the fuck would they considering it's their JOB REQUIREMENT to upload listings to the MLS, agreed to a full copyright release.
It's a shitty, underhanded business practice that ensures no culpability by the mega corporations and puts it square in the hands of the realtor who really has no choice in the matter if they are to do their jobs properly (that is, market their listings).
Not exactly true. Most professional RE photographers are licensing their photos to the agent or brokerage that is listing the home, with a finite timeline, not giving up the rights. Typically this is stated in a contract or terms & conditions. Additionally, the contract or T&C usually states that any third parties must seek permission to utilize the images. For example, if a staging company wants to use the images, they need to pay for them as well. If you are "selling" your images to the agent, then it is an entirely different story, but that's not a great way of doing business in the RE photography industry as it leaves a lot of additional revenue on the table.
I don't think you understand how copyright law works.