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Zillow sued for $81 million by real estate photographer

(BUSINESS NEWS) Real estate giant Zillow is being sued by a California photographer who intimates that the company has scraped the images without anyone’s permission.

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zillow sued by gutenberg represented by mathew higbee of higbee associates

California photographer, George Gutenberg filed a lawsuit today against Zillow, alleging copyright violations for their use of his real estate photos, indicating that Zillow scrapes images from Multiple Listing Services (MLSs) rather than using listing data syndicated to them.

Court documents request a bench trial, damages (plus attorney’s fees and court costs), and that Zillow stop using Gutenberg’s copyrighted images. Under 17 U.S.C. § 504, Gutenberg is seeking “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.”

If Gutenberg were to win, Exhibit A of the lawsuit cites 543 images in question across 17 listings on Zillow, which would total $81,450,000 or more.

The issue of real estate photography copyrights has long been convoluted. There are six stakeholders that have consistently argued that they own images used in real estate listings: homeowners, real estate photographers, the listing agent, the broker, MLSs, and real estate listing websites.

The argument that homeowners own the rights to images taken of their property has very little merit, and we have uncovered no copyright lawsuits that a homeowner has won regarding photography.

One can see why an agent or broker believes they have the right to the images they’ve paid for, but those parties don’t always read their photographer’s agreement prior to paying their invoice, while MLSs and websites have slid into their Terms of Service that they own the copyright once it is uploaded to their servers (be it directly or via syndication).

But what is different about Gutenberg’s position than many others is that he retains the copyright to all photographs taken of each property, allowing the agent a “limited license to use the photographs for up to one-year purposes of marketing the property.”

Wouldn’t that include Zillow? Nope.

The license “expressly states that it is not transferrable and prohibits third party use without permission from Gutenberg.”

Unlike many photographers, Gutenberg actually registers his images with the U.S. Copyright Office.

Mathew Higbee of Higbee and Associates issued the following statement to The American Genius:

“Mr. Gutenberg has a robust working relationship with many top real estate agents in southern California and across the nation. Mr. Gutenberg’s clients gladly pay to license his work knowing that Mr. Gutenberg’s high-quality photographs and signature style add significant value to their listings. In addition to real estate listings, Mr. Gutenberg also licenses of his photographs for editorial and commercial use in print and online publications, advertisements, and retail and commercial businesses.

The agents that engage Mr. Gutenberg understand that they are permitted to use his photographs for the limited purpose of promoting their real estate listing, which includes placing the photographs on the MLS. Content placed on the MLS is only available for the life of the listing and is immediately removed when the listing is sold or otherwise taken off the market. Mr. Gutenberg is not aware of any of his real estate clients directly syndicating his photographs to Zillow, nor is Mr. Gutenberg aware of any of his real estate clients exceeding the scope of rights granted in their individual licensing agreements with him.

Rather, it appears that Zillow, owner of the largest real estate website in the world, indiscriminately copies millions of photographs per day off of the MLS in an effort to build what they refer to as their ‘Living Database of All Homes,’ which Zillow has leveraged into multi-billion dollar company. Zillow’s unlawful copying comes at the expense of creators and rights holders such as Mr. Gutenberg who depend on payment of reasonable licensing fees by those who exploit their works.”

The implication is that the clients are not in violation of the copyright if they didn’t syndicate listings to Zillow or upload them directly. A claim that is far heavier than a standard copyright lawsuit, and stands to call into question Zillow’s practices.

The internet has long changed how people copyright images, who owns them, what agreements each party enters as they upload and/or syndicate data to third party sites. This isn’t the first lawsuit of this nature, nor the last.

We’ll keep you updated as this lawsuit progresses.

Lani is the Chief Operating Officer at The American Genius - she has co-authored a book, co-founded BASHH and Austin Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.

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22 Comments

22 Comments

  1. Roland Estrada

    September 17, 2018 at 8:58 pm

    This practice by photographers needs to be stopped by market forces. As far as I’m concerned, If I pay for a photograph, I own the right to it I don’t give a crap what the photographer thinks. As agents, we need to tell a photographers up front if they have any type of agreement wherein I give up rights of ownership of any kind they need to move on and the will find another photographer.

    We can stop this weasel BS practice but we nee to collectively make a effort to do so.

    • David C

      September 18, 2018 at 3:30 pm

      Well aren’t you a real peach…. Way to damage your reputation by showcasing ignorance. I recommend a basic Google search of US copyright law. Question for you: when you pay for a book, do you also believe that you now own it and can reprint it with impunity?

    • Robert

      September 18, 2018 at 3:44 pm

      It’s called US Copyright law! By default you don’t own jack. Good luck finding any good photographers to work for you! LOL it’s no different than the song you buy off iTunes. You don’t own the song. You just own the right to listen to the music. You don’t own the right to profit or resell.

    • Robert

      September 18, 2018 at 3:57 pm

      Nobody cares about your concern which goes against US Copyright law. The photographer by default owns the copyright unless the transfer of copyright is in writing. I would quit before I bowed to the demands of an idiot realtor like you. How about we quit the BS practice of commissions and put all realtors on a fixed salary.

    • Dan

      September 18, 2018 at 7:54 pm

      Realtors who have no clue how the market functions and still think they are able to help their clients. Wise up, be professional and learn how the law protects the market from thieves who think exactly like you.

    • Rob

      September 19, 2018 at 6:33 am

      Hey homie…
      Next time you buy your favorite Beyonce tune, please call her and tell her that you’re the new owner and that she can go take a flyer.
      Get back to me with her lawyers response. I’ll wait.

    • George

      September 20, 2018 at 12:46 pm

      @ Roland Estrada,

      I think you are misunderstanding this entirely. The Realtor are licensed to use the images in all the customary ways in marketing the property, as well as themselves.

      The complaints is against a 3rd party, that is using the images to enrich themselves without authority, and without compensating the original creator!

      The fact that you “don’t give a crap what the photographer thinks” says a lot about the value you put on your photographer, and the work that person puts in to try to help market your listings.

    • George

      September 20, 2018 at 7:49 pm

      I think you are completely missing the point here. The complaint is NOT directed towards my Realtor clients. They are able to use the images in marketing of the properties, as well as themselves.

      Th complaint is directed towards a 3rd party, who’s entire business model is based on the use of images that does NOT belong to them, that they do NOT have authorization to use, and that they have not paid for.

      Just to correct the record, there is no $81 mil claim in the complaint. While it makes for a good headline, it is not what the suit specifies.

      The fact that you “don’t give a crap what the photographer thinks” reflects more on your how you value the contribution a professional photographer brings to your marketing efforts. Thankfully, my clients appreciate what I bring to the table.

    • Ken Brown

      September 20, 2018 at 9:14 pm

      Roland, photography is the same as any other creative endeavor such as music, painting, movies and TV. Unless a specific contract is made that assigns the ownership of the photos or the photographer is an employee, the photographer is granted an automatic Copyright as soon as the shutter is clicked. A good real estate photographer will have discussed with their clients the licensing terms for the use of the images and most pros included all of the permissions needed to market a home in all media until the home is sold or removed from the market. Many photographers like me also allow the agent to use the images to market themselves on web sites and brochures. We want you to do well and continue hiring us.

      Zillow is not a mom ‘n pop entity struggling to pay its bills and instead of paying for image or making them on their own, they are copying them from the internet to create a service that they earn money from. It is akin to copying popular songs and selling mix cd’s online. There are ways to license those songs and do it legally. Photographers charge very low rates for real estate marketing images in the hopes of selling them to others.

  2. Lane Bailey

    September 17, 2018 at 9:22 pm

    I spent 10 years as a professional photographer before being a real estate agent. Even at the heights of commercial photography, where clients are paying thousands of dollars per day plus expenses for a photographer, they don’t own the image… they negotiate rights to use it. If they buy it outright (and sometimes they do) they pay an often hefty additional fee for that.

    What is shameful is MLSs saying that they own all images that are uploaded to them… where I am there are two different MLSs that serve us. Most good agents are members of both. But technically, if I upload the same pictures to both, I have violated the copyright protections of one or the other. Because after loading them to the first, I no longer own the rights to load them to the second.

  3. David Eichler

    September 19, 2018 at 2:02 pm

    It is standard practice for professional photographers to retain copyright to their photos and sell usage rights to their clients for specific purposes. It is also typical for the usage licenses to state that, without the photographer’s written consent, the usage license may not be transferred and no third parties may use the images for any other purposes.

    I can state for a fact that many real estate agents do purchase usage rights to their listing photos, rather than owning the photos outright, and they understand exactly what they are doing. It is also my strong impression that many real estate agents do not like Zillow and do not submit their listings to Zillow. I have had real estate agents tell me they do not do so and have seen a variety of comments to this effect by real estate agents in various Internet forums.

    The business model known as rights management, where the party that creates copyrightable material retains ownership of the copyright and licenses usage rights to others for a fee, is no different for photographers than it is for writers, software developers, movie producers, architects, artists and others who create intellectual property.

    If a real estate agent does not wish to purchase usage rights and would rather own the photos outright, he or she can probably fine a photographer who will sell them the copyright. However, such photographers are likely to be at the lower end of the skill-talent range. Ultimately, it is a question of how much value the photos have to the client.

  4. Pingback: Real Estate Giant Zillow Sued for $81 Million by Photographer - World Photography

  5. David Eichler

    September 22, 2018 at 2:10 am

    “If Gutenberg were to win, Exhibit A of the lawsuit cites 543 images in question across 17 listings on Zillow, which would total $81,450,000 or more.” First of all, this is a very badly written sentence. Second, it does not adequately describe the potential award, which could well be lower, and does not explain that it could only be higher if the court awards the plaintiff court costs and attorney’s fees, since the maximum award available for infringement itself is $150,000 per infringement. Furthermore, this maximum award is only available if the plaintiff can prove that the defendant’s infringement was willful (which seems to me to be likely in the case of a company such as Zillow). Otherwise, the maximum possible award would be $30,000 per infringement if the court determines that infringement was not willful.

  6. Pingback: Photographer Sues Zillow for $81M for Scraping His Real Estate Photos – Photography News World

  7. Pingback: Real Estate in Brief: FTC website crackdown, Zillow lawsuit and more

  8. Pingback: Real Estate in Brief: FTC website crackdown, Zillow lawsuit and more

  9. Pingback: Photographer Sues Zillow $81M for Scraping His Real Estate Photos

  10. Pingback: Real Estate in Brief: FTC website crack-down, HUD hiring for loyalty, and Zillow's lawsuit

  11. Pingback: Real Estate in Brief: FTC website crack-down, HUD hiring for loyalty, and Zillow's lawsuit

  12. Pingback: Real Estate Giant Zillow Sued for $81 Million by Photographer • Feedster

  13. Pingback: The Real Estate Guide to Photo Usage Rights - Pearl Insurance

  14. Ben Dover

    December 3, 2018 at 9:47 pm

    Zillow is now dictating the value of property rather than the market. They need to be stopped.

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Business News

5 ways employers can avoid age discrimination when hiring

(BUSINESS) Sometimes intentional, sometimes not, age discrimination is costing businesses big these days – make sure you’re hiring fairly and not taking unnecessary risks.

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age discrimination settlement EEOC

The Age Discrimination in Employment Act of 1967 makes it illegal to discriminate against employees aged 40 and up. Federal law applies to employers with 20 or more employees.

In Texas, for example, it’s illegal for private employers with 15 or more employees to discriminate based on age. A Federal Court has ruled that age discrimination is only illegal against employees, but AARP has asked the Supreme Court to weigh in.

The EEOC received over 16,000 age discrimination complaints in 2018, which is lower than previous years, but it’s not something your business wants to deal with. Age discrimination just cost one Texas employer more than $85K for casting off an older worker. Avoid costly claims and fines by making sure that your workplace is discrimination-free.

1. Watch how you describe jobs.

Identifying a position for a “young” tech-savvy college student could be misconstrued as age discrimination. Avoid using terminology that makes indicates that a person must be younger to fit into your culture. Rather than try to find the right words to fit the person you’re looking for, describe the job itself.

2. What information do you really need on a job application?

It’s not illegal to ask a person’s age or when they graduated high school, but it is illegal to use that information in determining whether you’d hire them or not. Asking for that information could be used as evidence that age influenced a hiring decision. Choose questions carefully on your company’s job application. Talk to a good recruiting specialist or lawyer to help you stay out of trouble.

3. Watch what you say during interviews.

Collecting information about someone’s age during an interview could also get you into hot water. Don’t bring up children or grandchildren. It seems innocuous enough, but if the person makes a complaint to the EEOC, it could come up again.

Make sure interviewers know what types of questions could be inappropriate. Have a structured interview guide that provides consistency across applicants, regardless of age. It is also a good idea to keep good records about how decisions were made.

4. Be aware of diversity and implicit biases in the hiring process.

There’s plenty of research that demonstrates implicit bias in hiring. Implicit bias describes the attitudes we have toward others that we’re not really conscious about. This could include stereotypes about retirement or that an older person might be uncomfortable working for a younger manager. Implicit bias is what makes you choose someone based on a similarity to yourself, rather on their skills. Look around your office and see if you have a diverse workplace.

5. Avoiding age discrimination isn’t about quotas.

To fight age discrimination, you can’t just focus on how many people you employ of a certain age group. You have to really look at the overall culture of your organization. Telling hiring managers to hire someone over the age of 65 doesn’t change attitudes.

Educate your managers about age discrimination. Encourage your team to interact with people of all ages, whether through volunteerism, classes at the local college or book clubs. Eliminate biases that cause age discrimination by widening your social circles. Seniors bring a lot of experience and soft skills to the workplace that can benefit your business.

Bottom line: Don’t discount someone based on age.

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Mystery: Who is Henry Hawksberry, ghost author of ‘Is WeWork a Fraud?’

(BUSINESS NEWS) WeWork has been a hot mess lately, and the public got involved after a list of egregious infractions was published on Medium, but the author is a ghost and no one has noticed. Who the hell is Henry Hawksberry!?

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Who exactly is Henry Hawksberry? Are you ready for a good conspiracy theory? Oh good, me too – put on your tinfoil hat and buckle up, because it’s about that time!

Yesterday, in our real estate section, I broke down how the wild WeWork IPO withdrawal could impact the residential real estate industry. Part of that breakdown was referencing the WeWork drama involving made-up accounting practices, tax ducking, wild spending from deep pockets, shady business dealings, and a fleecing of historic proportions.

By now, we all know a lot of what happened, thanks to Henry Hawksberry who penned the viral “Is WeWork a Fraud?” scathing blog post illustrating point-by-point the “ponzi scheme.”

But something bugged me.

Who IS Henry Hawksberry? I started digging and no one has picked up on the fact that it’s a ghost. A shadow. A phantom. A specter. Yet this one blog post has been republished dozens of times, and referenced thousands of times.

Let’s dig into these breadcrumbs:

1. Henry Hawksberry’s original Medium post (which is what everyone linked to, retweeted, and republished) has been deleted. By Henry Hawksberry.

2. But not just the story, the entire Medium account that posted the one blog post has been deleted. No one seems to have noticed, given that it has been republished so widely.

So, I went to the Wayback Machine, and there is only one instance of that account ever being captured – on September 20th, there was one blog post, a profile picture of someone skiing, they followed one person (which is not clickable, so that doesn’t yield any clues) and were followed by 70 (no surprise there since his post was already viral by the 20th).

3. You are prompted to set up a Medium account with a Google or Facebook account, so we dug for both looking for “Henry Hawksberry,” yielding zero results. Same with LinkedIn. And Reddit.

And, although his name is mentioned on Twitter endlessly, every single instance (yes, I read every. single. tweet.) is in reference to this one blog post. There is no account under the name “Henry Hawksberry.”

4. But Twitter is where it gets slightly interesting. There are three tweets that noticed this person is a ghost.

One British fella took issue with Herny calling WeWork out for lack of transparency, but is non-transparent, one guy posits that it’s a pen name, and an Irish fella questions his identity but immediately moves on.

The very first perked ear was from Peter Yang:

Note that this tweet has two retweets and 7 likes. In case anyone unlikes it, here is a screenshot of all Likes:

Note that one of the likes is from @ProfGalloway himself. More on that soon…

“Motorman” has a quick conversation asking who Henry is, but mainly to point out that Henry criticizes WeWork’s refusal to be transparent while ironically, Henry is doing the same. But the topic dies quickly and no one else gets involved.

Here we go – finally someone saying the very thing that I’ve been digging into. But the conversation dies and no one else on the planet ever picks it back up. Bizarre.

5. So I emailed Professor Galloway, who in the first tweet above, was referenced as the potential ghost. He liked the tweet but didn’t comment or retweet. Scott Galloway did write a blog post that same day, entitled “WeWTF, Part Deux,” referencing Henry Hawksberry as a “pen name, I think.”

Last night, I emailed his NYU Stern address: “I *have* to know – are YOU Henry Hawksberry? Is it a pen name? I saw someone ask (potentially in jest) if you were Henry, and no one responded or noticed, but you were one of the 7 ‘Likes.’ Is it you? If not, any theories?”

He responded, minutes later, “Who is Henry Hawksberry?” and nothing more.

I wrote back, “LOL okay… He penned the original “Is WeWork a Fraud?” (republished here) and you referenced him in your “WeWTF” blog post…” and he went silent.

This is still of interest, so keep this point fresh in your mind, I’ll circle back to it.

6. An entrepreneur in Zurich calls Henry out on Medium for being potential fake news, asking who Henry is, and it has 33 “claps” which are similar to “Likes” on Facebook, but zero comments. It went nowhere.

7. Oddly enough, RealClearMarkets has a blank profile page. The site is a product of RealClearPolitics, which is an actual trusted publication, so that’s a strange question mark. They have not responded to our request for comment.

8. Google has indexed 0 incidents of the name “Henry Hawksberry” aside from this one story and references to it – I reviewed every single instance of his name as indexed by Google. Dead end.

9. No comments by “Henry Hawksberry” were found anywhere at all which is usually the giveaway. Even when using a pen name, people will accidentally say something in a forum under that name years ago, but not this ghost.

10. I had hoped that perhaps I could piece together the relevance of his name – maybe it’s a nod to a famous historical figure in tech or business that would unlock this person’s true identity or goals, but I didn’t get anywhere with that either.

Hawksberry is a place in Australia, maybe a body of water in Brooklyn, but other than that, it’s a mystery.

So who is Henry Hawksberry?

Reading this, you’ll imagine that it’s Professor Galloway, and there’s a fine possibility of this, given the immediate silence.

However, my instinct is that the person who penned the blog post in question is close to WeWork, likely a former employee. Not a receptionist or event coordinator or someone at that level, but someone with real insider knowledge, likely at a Director level. Higher than that, and there would probably be too much at risk with stock options.

The author is also extremely well informed and had a firm grasp on the historical context of the timeline, and the writer’s diction level indicates they’re likely well educated.

A tech insider opined to me privately that it could be someone that has had full access to everything at WeWork, like a sysadmin who is acting like some sort of whistleblower.

That could be possible, but it seems more likely to me that it’s someone who removed their original blog post (without anyone noticing), knowing that it could potentially be used to identify them by leadership at WeWork, which would again, put them probably below VP status, and probably not currently with the company.

I’ve been obsessed with the WeWork melodrama, and I’ve had plenty of private conversations about it. But this Henry Hawksberry is the part that has really gotten under my skin. I’ve tested my gut against others that I trust, and we all agree that this is a real head scratcher.

It could be Gwyneth Paltrow for all we know (if you read the original blog post, you’d get the relevance of this jab).

Perhaps the fact that this person left no breadcrumbs IS a clue in and of itself.

Feel free to share any insights in the comments – maybe you have the key to solving this mystery??

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Price-predictable subscription to legal help for startups

(BUSINESS) Startups in growth mode need extra help, and legal services is not where successful companies cut corners. Check out this subscription option for your growing company.

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If you’re running your own business or are planning to start one, legal help is probably low on your list.

Most of us have access to free resources from your local Chamber of Commerce or state website, or may have a “friend” who can help you with the forms and other things.

For a lot of things, a DIY attitude won’t cost you much. You could float your own drywall for example. But when it comes to the law, you must trust an expert. Trying to cut corners on legal expenses can cost you a lot in terms of liability or lead to a few headaches, disputes, and litigations. And even if it didn’t cost money, it will cost you time.

Fortunately, you may not have to pay a lawyer directly, as there are several online solutions, including LegalZoom or LegalShield that can help you with forms, provide advice or help you get your business started. Legal advice could cost you hundreds per hour, but it doesn’t have to be that way.

Although online legal services are available, one thing that may be challenging for startups is that it can be difficult to budget for: cost transparency isn’t always available and it may be contingent on demand, time and resources.

Atrium is legal firm specifically designed for startups. This firm was founded by Twitch founder Justin Kan, and Silicon Valley lawyer, Augie Rakow in response to what his needs were as a startup: fast, reliable, and transparent services.

To date, Atrium boasts 890 completed startup deals; $5B raised by companies, and 10 companies started by it’s members. Atrium breaks down its services into four areas:

Atrium Counsel – which provides standard day to day legal processes, including board meetings, NDS, contract/personnel review, etc. – this is available as a subscription service or if you have unique needs, there are special projects available.
Atrium Financing – to help work with venture capital transactions and help explain the deal and it’s process, including upfront price estimates for advice with pitches.
Atrium Contracts – to help with contract review and form generations.
Atrium Blockchain – to help provide legal advice on the many regulatory issues involving blockchain issues.

Atrium’s major competitive advantage is the end of the billable hour paradigm and the focus on subscription models. This is great for a startup in growth mode because you can get a lot of value for a fixed price.

That said, Vitality CEO, Jamie Davidson said, “Just had a call with these folks. You pay a minimum of $1K a month (based on your company size) to be able to ask them questions. You then pay above-market prices for actual legal needs, like privacy policy/TOS generation ($5K), GDPR ($10+K), etc. Our current lawyer does not charge me to ask him questions, but he does charge for actual legal work.”

Others have noted Atrium’s technological advantage and expertise, so mileage could vary.

If you find that community resources aren’t available or not meeting your needs, Atrium could be the service that helps take you to the next level. If you’re considering shopping for legal services, check out Atrium’s site, get to know their team, and see if it’s the right fit for you. The bottom line is that there are a lot of places to cut corners for your growing business, but legal services are not one of them.

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