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Zillow Threatens To Sue Blogger For Using Its Photos For Parody (theverge.com) 145

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."
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Zillow Threatens To Sue Blogger For Using Its Photos For Parody

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  • Last I checked... (Score:5, Insightful)

    by BronsCon ( 927697 ) <social@bronstrup.com> on Monday June 26, 2017 @08:29PM (#54695645) Journal
    Parody is fair use and Zillow can suck it.
    • by dgatwood ( 11270 ) on Monday June 26, 2017 @08:43PM (#54695695) Homepage Journal

      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.

      • by Lumpy ( 12016 ) on Monday June 26, 2017 @08:50PM (#54695715) Homepage

        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.

        • by Visarga ( 1071662 ) on Monday June 26, 2017 @09:44PM (#54695957)
          Well, the system got to protect the interests of important people first, right?
          • Yes the freedoms of persons with an Inc. in their name must always triumph over second class citizens. It is for the greater good you see.
        • In the USA it is actionable. All you have to do is outspend your opponent, does not matter if something is legal or not.

          It's not quite as simple as that, as there are substantial anti-SLAPP statutes in many states which allow people who are sued to get the case dismissed quickly and sometimes get their legal fees paid for it. But it's not the greatest situation, either.

      • Re:Last I checked... (Score:4, Informative)

        by Anonymous Coward on Monday June 26, 2017 @08:54PM (#54695737)

        The site is down, mission accomplished. High fives all around.

      • by Scarletdown ( 886459 ) on Monday June 26, 2017 @08:58PM (#54695757) Journal

        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.

        • Re:Last I checked... (Score:5, Interesting)

          by dgatwood ( 11270 ) on Monday June 26, 2017 @10:03PM (#54696027) Homepage Journal

          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.

          Actually, in many states, they would. When a company uses a lawsuit to silence its critics (or, in this case, critics of its clients), that is considered malicious(/wrongful) prosecution, a.k.a. a SLAPP (strategic lawsuit against public participation). There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior. That's why competent legal departments don't play games like this.

          • by jeti ( 105266 )

            There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior.

            And how often does this actually happen?

            • by dgatwood ( 11270 )

              There's nothing preventing the courts from awarding punitive damages against a company engaging in that behavior.

              And how often does this actually happen?

              Not nearly as often as it should. :-)

      • by Anonymous Coward

        my divorce attorney had a good point for me to ponder...

        me:"... but it's the principle"

        attorney: "Principles are expensive"

        the blogger is probably keenly aware of this. So is Zillow, but not because they fear losing and having to pay everyones' legal fees. Worst case scenario risk they perceive for them is she settles out of court if she pushes back. Which fits onto the "cost of doing business" account for Zillow.

        They're hoping the threat of a (SLAPP) lawsuit gets the blogger to "see the error of her ways".

        • by dgatwood ( 11270 )

          So is Zillow, but not because they fear losing and having to pay everyones' legal fees. Worst case scenario risk they perceive for them is she settles out of court if she pushes back. Which fits onto the "cost of doing business" account for Zillow.

          I think you're underestimating how much it could cost them. Assuming the blogger's lawyer earns his/her keep, he/she would file a SLAPPback suit the moment the case got dismissed. In many states, there are no specific limits to punitive damages in a SLAPPback su

          • by Anonymous Coward

            Oh, I'm not so sure... Zillow will probably have some choice where it files its lawsuit - not in California, but in a state with a listing or few the blogger disparaged that has weak or no anti-SLAPP statutes. Thats how Zillow will get to claim some degree of "damages", and therefore have standing, and will make it more onerous to defend.

            I'm not really seeing much of a Stresand effect happening here. Zillow is too diffuse/faceless of an entity. It doesn't have an outsized personality (ala Uber) making the n

      • Both parody and political statements are usually protected by fair use and other laws.

        But that still doesn't prevent a deep-pocketed prick from dragging you through the court system using well-paid and intense lawyers whose goal is to wear you down.

      • Yes, but onus of proof is on the defense.

        Which means Zilow is fully within their rights to sue. Then the blogger presents proofs this falls under safe harbor of fair use, and soundly wins the lawsuit, period.

        Zilow can't hope to sue and win. But they can still sue and lose, and that alone is often deterrent enough.

      • 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.

        I have no problem with her used of photos from Zillow as part of fair use. However, I don't feel comfortable with the way she attempted to make a claim on photos on the site. She did some derivative works on photos, and then posted a copyrighted statement right below them. I am not sure that you can take a copyrighted product, do something with it (derivative work), and then claim a copyright on your derivative work (remember, it should be a fair use)...

        • by dgatwood ( 11270 )

          I would argue that superimposed commentary is not really creating a derivative work, but rather a new work that merely references the original; from a technical perspective, yes, you're modifying the file, but that's strictly a matter of technical limitations rather than a matter of the nature of the work itself.

          Either way, though, you can have a copyright on annotations. That's fairly well established by case law in cases regarding annotated versions of the legal code. And this appears to just be a set

      • by suutar ( 1860506 )

        My understanding from reading some of Zillow's statements about their intent is that they're doing it because they think not doing so may open them up to suits from the actual copyright owners of the photos (since Zillow's license does not allow them to allow others to use the photos). Essentially it's a proactive due diligence kind of thing. If that's actually the case, they wouldn't mind if it got ruled as fair use, as long as it keeps them off the hook.

    • Having not seen the blog, it's hard for me to make a guess about how well it would be considered parody. TFA quotes "criticism, comment, news reporting, teaching, scholarship, and research."

      • criticism: It certainly sounds like the pictures were being criticized, or at the very least being used for critical review
      • comment: this sounds obvious as well, the point of the blog sounds like commentary
      • news reporting: if the blog is reporting on what's happening, then I think it sounds like news
      • I don't se
      • Re:Last I checked... (Score:5, Informative)

        by Spazmania ( 174582 ) on Monday June 26, 2017 @09:32PM (#54695905) Homepage

        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... [copyright.gov]

        "the fair use of a copyrighted work [..] for purposes such as criticism, comment [...] is not an infringement of copyright"

        • by Anonymous Coward

          You can catch it on archive.org.

          Page cannot be displayed due to robots.txt.

          [1] [archive.org]

          • Yesterday at least the main page was accessible in the internet archive. This morning,that page is no longer available. So, it looks like the new site just added a restrictive robots.txt? There were three crawls from yesterday in the archive that each had the new site with the black-background main page, so the site was being crawled frequently just now.

            Or perhaps the archive itself has been pressured to make the content not accessible?

            In any case, it is sad that domains that are let go can have new owners

      • The only thing that sounds questionable to me is the parody angle. Why would you choose to defend your work as parody unless you were deliberately imitating a copyrighted work? That's the thing that just doesn't quite mesh with what I would expect in this kind of situation.

        Probably because you're not a lawyer (or rather, she's not a lawyer).
        You're right, it's not parody. It is, however, review, commentary, and educational material, and protected by Fair Use beyond any doubt.

    • Fair use is based on a multi-factor test. It is evaluated by a court in the context of a lawsuit.

      Even if you win, it will cost you a minimum of around $50K+ to defend if the copyright owner claims it isn't fair use and sues you. It will cost more if you lose.

      • I'd cover 2% of that and I'm sure 50 other people would step up to do the same.
        • I'd cover 2% of that and I'm sure 50 other people would step up to do the same.

          OK. So set up a nonprofit or a coop to to provide fair use defense and/or IP insurance.

          • I very well may... Let\s see how this plays out first, though, so I don't have the money tied up in that should she decide to pursue her own defense.
  • by pinzvidz ( 3520933 ) on Monday June 26, 2017 @08:31PM (#54695651)
    ... in 3, 2, 1...
    • ... in 3, 2, 1...

      How so?
      The original site is down, the site that talks about it doesn't exactly receive 2 million hits a day, and random whining on Slashdot really means very little.

      So I'm just wondering where this "Streisand Effect" is going to take place? Facebook? My understanding is Slashdot readers don't use Facebook...

    • Oh no, us international folks already knew lots of rich americans live in disgusting houses. There are plenty of articles about them already, it's just that they say "look at this amazing place" where this guy said "house boner" and whatnot.

      I just googled "top ten most expensive houses in la" and found this right at the top of the results: https://la.curbed.com/2017/1/2... [curbed.com]

      Sadly, no arrows and slagging off, but you can still marvel at just how gaudy the rich seem to like their houses.

  • Just leaving what I already wrote on Gizmodo's post here:

    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). And even so, photography can be pretty tricky on those matters.... fair use usually won’t stick in cases like this one.

    Very rare exceptions for very famou

    • Re:Thoughts on it... (Score:5, Informative)

      by Theaetetus ( 590071 ) <theaetetus.slash ... m ['mai' in gap]> on Monday June 26, 2017 @09:40PM (#54695933) Homepage Journal

      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.

      • Too bad I had mod points yesterday instead of today, I'd upvote you.
        • Re:Thoughts on it... (Score:5, Interesting)

          by Theaetetus ( 590071 ) <theaetetus.slash ... m ['mai' in gap]> on Monday June 26, 2017 @09:58PM (#54696011) Homepage Journal

          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 [techdirt.com], 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.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        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 defen

        • by Theaetetus ( 590071 ) <theaetetus.slash ... m ['mai' in gap]> on Tuesday June 27, 2017 @12:33AM (#54696449) Homepage Journal
          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.

      • by Anaerin ( 905998 )
        Unfortunately, Zillow aren't going for Wagner under the terms of copyright infringement, they're going for them under the auspices of "Breaking the Terms of Service" of Zillow's website, as copying the photos from their site is explicitly called out as not allowed. However, as it is a "by using this service you agree to..." style EULA, which is shaky legal ground at the best of times, this would be an interesting challenge.

        In other words, they're trying to forestall the fact that copyright law allows it by

        • Unfortunately, Zillow aren't going for Wagner under the terms of copyright infringement, they're going for them under the auspices of "Breaking the Terms of Service" of Zillow's website, as copying the photos from their site is explicitly called out as not allowed. However, as it is a "by using this service you agree to..." style EULA, which is shaky legal ground at the best of times, this would be an interesting challenge.

          In other words, they're trying to forestall the fact that copyright law allows it by challenging it with contract law instead.

          Nah, that's a loser at the outset, Wagner doesn't need (and may not have) an account on Zillow to access the photos - they're publicly accessible, without any need to agree to their ToS. For there to be a contract, there must be a mutual exchange of consideration - you agree to these terms in exchange for access to my site, etc. In this case, at least with regards to publicly accessible photos, there's no exchange - it's just "you agree to these terms, the end." That's an unenforceable contract.

      • I'm surprised that no one has mentioned that in the meantime there is a simple solution:

        Crowdsource RETAKING the pictures and donate the new pictures and copyright to the blogger.

        That way Zillow's original photos are no longer being used.

      • Zillow probably didn't even take the photos. They have a irrevocable license and probably a right to sublicense and all that business according to their terms, but they would leave copyright in the hands of the real estate agent or photographer where it belongs.

  • by Anonymous Coward on Monday June 26, 2017 @09:53PM (#54695995)

    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.

  • by martiniturbide ( 1203660 ) on Monday June 26, 2017 @10:03PM (#54696031) Homepage Journal
    I was checking it on wayback and Google cache and it is a funny site. https://web.archive.org/web/20... [archive.org] or http://webcache.googleusercont... [googleusercontent.com]
  • dang (Score:5, Informative)

    by Anonymous Coward on Monday June 26, 2017 @10:19PM (#54696083)

    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.

    • To me, it looks like her site easily passed the four fair use tests

      And it need only pass one of them to be considered fair use.

      Sad that she didn't fight it; I'd have chipped in a few hundo or more for her defense.

    • 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 really don't think they can. This will get really interesting if one of the photographers sees this story and grants permission for their photos.

  • Add Zillow to streisandeffect.com

  • Per the official Twitter post she's bringing the site back up. It's just take a long time due to all the photos and links. So it should back tonight.

    She's also getting legal counsel to handle this. She makes her living from this blog and referrals she's received so Zillow is threatening her livelihood over fully credited pictures used in critique and parody. Given the publicity they've received for trying to stomp on a student blogger they've probably been advised to quietly drop this and stay far, far away

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