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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 and has been named in the Inman 100 Most Influential Real Estate Leaders several times, 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

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  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

Does writing with pen and paper make you smarter than your digital peers?

(BUSINESS NEWS) Can handwriting make you smarter? Once considered and art form, handwriting is becoming a thing of the past, but should it be?

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handwriting

When I was in college, in 2002, laptops weren’t really commonplace yet. Most students took notes by hand with pen and paper. Today, most students take notes with laptops, tablets, cell phones, or other electronic devices. The days of pen and paper seem to be fading. Some students even wait until the end of class and use their cell phones to take a picture of the whiteboard, so in effect, they are not absorbing any of the information because they “can just take a picture of it and look at it later.”

Is it easier to take notes on an electronic device? I think that largely depends on preference. I type faster than I write, but I still prefer to take notes on paper.

According to researchers at Princeton University and the University of California, Los Angeles, students who take handwritten notes generally outperform students who typed them.

Writing notes help students learn better, retain information longer, and more readily grasp new ideas, according to experiments by other researchers who also compared note-taking techniques.

While most students can type faster than they write, this advantage is short-term. As the WSJ points out, “after just 24 hours, the computer note takers typically forgot material they’ve transcribed, several studies said. Nor were their copious notes much help in refreshing their memory because they were so superficial.” So while it may take a bit longer to capture the notes by hand, more likely than not, you will retain the information longer if you put pen to paper.

As I teach English Composition at the University of Oklahoma, I would also like to say that while I find this to be true for myself, every student has a different learning style. Typed notes are much better than no notes at all. Some students detest writing by hand and I understand that. Everything in our world has gone digital from phones to cable television so it makes sense, even if I don’t like it, that students gravitate more towards electronic note taking than pen and paper.

While I would like to see more students take notes by hand, I certainly won’t require it. Some students are navigating learning disabilities, anxieties, and other impediments that make taking notes digitally more advantageous.

I imagine the same is true for other areas as well: instead of typing meeting notes, what would happen if you wrote them by hand? Would you retain the information longer? Perhaps, and perhaps not; again, I think this depends on your individual learning style.

I would like to suggest that if you are one of the more “electronically-minded” writers, use a flashcard app, or other studying tool to help you review your classroom notes or meeting notes to make them “stick” a bit better. While I find this type of research intriguing, if you enjoy taking your notes electronically, I wouldn’t change my method based on this.

If it’s working for you, keep doing it. Don’t mind me, I’ll be over here, writing everything down with pen and paper.

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The one customer service mistake all businesses should avoid

(BUSINESS) Customer service is paramount for every business, but this one mistake handicaps so many and can be fixed so easily.

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car dealership business customer service

As both an entrepreneur and business coach, I’m cursed with the proclivity to recognize areas for improvement in any businesses that I visit – even as just a customer. I wait in lines, stay on hold and watch mistakes happen, all the while dreaming of how I’d create a better customer service experience.

Case in point: I recently accompanied my girlfriend, Pam, on a trip to a car dealership – and what should have been a simple transaction turned into a nightmare, all because of customer experience.

Throughout the entire experience, I witnessed from the sidelines numerous small mistakes that, if resolved, could widely improve the processes of that car dealership and grow its business. But it wasn’t these small mistakes that did the most damage. Because of just one critical error, they will never know what they did wrong.

With over 180,000 miles on her current car, Pam knew that the time had come to replace her trusty and reliable vehicle of many years. She liked her current car, so she decided to simply replace it with a new version of the same model and brand. The only change would be a new color. To make the transaction even easier, she sold her old car to a friend and she didn’t need financing, opting to use her local bank for financing or pay cash.

Based on the above, I assumed that the car shopping experience would be extremely quick and painless. We contacted several dealers in the area and gave them the exact specifications of her new car and asked them to respond with their best price. Simple, right?

After receiving responses from three dealers in the area, Pam made the decision to go with the dealer closest to her house. They had the exact vehicle she wanted, although it was at another location, so it would take a few days to receive. And their price was almost identical to the lowest price received. They even said they would match a 0% interest financing offer that another dealer had offered to attract her business. Her next step was to head to the dealership and fill out the paperwork. We decided to do it on the way out of town for the weekend, because it was going to be so easy.

Upon arrival, she was told that she had to meet with the financing person and there was one customer in front of her. She was reassured, “It will be a short wait…” It turns out their definition of a “short” wait was several hours.

Multiple times, she asked what could be done to shorten the wait. Surprisingly, even if she decided to pay cash, their process required that she visit with the finance person. As she later found out, that was because the finance person’s goal was to upgrade her on insurance, financing, warranties and other add-ons – despite the fact that she clearly told her salesperson upon arrival that she did not want any of those add-ons.

Her only request was a quick experience, which they failed to deliver.

Upon finishing her paperwork with the finance person, my girlfriend was approached one last time by the salesperson as she headed out the door. He said it was “really important” that he go over one last detail of the transaction in his office. He proceeded to review the survey that she would receive from the manufacturer about her car-buying experience. He handed her a pre-filled out version of the survey with certain areas highlighted with the exact score he wanted her to provide so he could get his “full commission.”

He explained in great detail that his pay was directly related to the score on the survey. He even bribed her with some all-weather floor mats she noticed earlier in the day but decided were too expensive. He said the mats would “magically” be in her car when it was delivered – a small token of his appreciation for filling out the survey per his instructions.

All in all, the customer service experience was less than satisfactory and was riddled with mistakes. But, it was the salesperson’s mistake that most seriously hurt the business. Can you spot it?

As I watched the conversation about the floor mats unfold, that desire to help businesses improve struck me, and I realized that the incentive structure put in place by the dealership was going to prevent them from getting the real information – the true survey results – they needed to improve their business. (Which is too bad, because they really need to improve.)

A lesson that I always share with the businesses and leaders I work with day to day is: Incentives are a powerful tool to motivate team members, but if they get in the way of honest feedback or inspire teams to chase “rewards” instead of true business success, they can also have unintended consequences which put the brakes on the growth of organizations.

After a few additional hiccups in the process, my girlfriend finally received her new car… with the all-weather floor mats. She’s very happy with the car, but disappointed with the car-buying experience.

And unfortunately, because of the dealership’s decision to connect pay incentives to the survey, the dealership and manufacturer will never know the truth.

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Business News

Beware: The biohacking obsession is attracting scammers

(NEWS) Biohacking is finding ways to gain a competitive advantage, while excluding the medical world. It’s great to increase your output, but be cautious when picking your poison…

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biohacking tea

Wanna live better or longer? [Insert biohack here] will solve all those pesky problems. In all fairness, it’s human nature to seek improvement, especially in our jobs or academics — you know, the things that demand a constant, high performance.

Of course our ears will prick up at the slightest mention of attaining that elusive edge. Remember Aderall in college?

Biohacking isn’t a new topic. The term refers to a wide range of activities to affect the body’s biological systems.

The objective is to optimize health, well-being, and focus. If we are able to effectively manage what we put into our body, our output can increase. It’s not inherently evil.

But social media influencers are key in promoting the latest products/diets/supplements/oils, often doing so for money, not to improve others’ lives. And, there’s a darker side of drug use, both prescription and illegal, leading to potentially dangerous and abusive situations.

The misleading aspect of biohacking is that every body is different.

Regardless of social media promises, people should be wary of ingesting additional products.

Despite the fancy names one can give it, biohacking has the same objective of medicine, but product development typically excludes medical practitioners.

Legitimate medical practices take huge amounts of funding and research to figure out and insure safety, and they’re heavily regulated by the federal government.

A random word of mouth promise about some obscure herbal supplement is not the same thing.

There are no shortcuts to improving one’s health.

And biohacking doesn’t necessarily mean making life more complex. It’s important to start with the basics before jumping to elaborate diet regimens, powders, pills, etc. Simple steps like routine exercise, 7-8 hours of sleep, and healthier meal choices may help get you on track.

It’s amazing to realize what you can change about yourself before joining some random Thought Cult you found on Instagram. And in the case that your health needs a modern, helping hand, do the proper research before falling into the dark internet hole.

Or better yet, consult your doctor.

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