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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.

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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

  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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How to conduct a proper informational interview

(CAREER) Informational interviews comprise a technique in which you ask an employer or current employee to explain the details of their job to you. Try doing this before you transition into your next occupation!

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informational interview

At some point in your career, you may ask for someone’s time to do an informational interview — a process in which a job-seeker asks questions about a field, company, or position in hopes of receiving information which will inform both their decision to go into the field and their responses to the specific job’s actual interview. Since the power dynamic in an informational interview can be confusing, here are a few tips on how to conduct one. Not how to obtain one, but how to conduct one once both parties agree to connect.

The process of an informational interview typically starts with finding a person who works in your desired field (and/or location if you have a specific company in mind) and setting up a time during which you can ask them a few questions about things like their job responsibilities, salary, prerequisites, and so on. Once you’ve set up a time to meet in person (or via Skype or phone), you can proceed with putting together a list of questions.

Naturally, you should understand the circumstances under which asking for an informational interview is appropriate before requesting one. Your goal in an informational review should be to ask questions and listen to the answers, NOT pitch yourself as a potential hire. Ever. Nobody appreciates having their time wasted, and playing on your contact’s generosity as a way into their company is a sure way for your name to end up on their blacklist.

Once you’ve set up an informational interview, you should start the conversation by asking your contact what their typical day is like. This is doubly effective: your contact will most likely welcome the opportunity to discuss their daily goings-on, and you’ll be privy to an inside glance at their perspective on things like job responsibilities, daily activities, and other positive aspects of their position.

They’ll also probably detail some drawbacks to the position — things which usually aren’t explained in job postings — so you’ll have the opportunity to make a well-informed decision vis-à-vis the rigors of the job before diving head-first into the hiring process.

After your contact finishes walking you through their day, you can begin asking specific questions. However, unless they’ve been unusually brief in their description of their duties, your best course of action is probably to ask them follow-up questions about things they’ve already mentioned rather than asking targeted questions you wrote without context. This will both indicate that you were listening and allow them to expand upon information they’ve already explained, ensuring you’ll receive well-rounded responses.

You should save the most specific questions (e.g., the most easily answered ones) for the end of the interview. For example, if you want to know what a typical salary for someone in your contact’s position is or you’re wondering about vacation time, ask after you’ve wrapped up the bulk of the interview. This will prevent you from wasting the initial moments of the interview with technical content, and it may also keep the contact from assuming a strictly material motive on your part. And be willing to ask “what does someone with your job title typically earn in [city]?” instead of their specific take-home salary which might not be reflective of the norm (plus, it’s rude, and akin to asking someone their weight).

This is also a good time to ask for general advice regarding breaking into the field, though you may want to avoid this step if you feel like your contact isn’t comfortable discussing such a topic or if you’re intending to apply as someone with experience.

Of course, you won’t always be able to meet with your preferred contact directly, especially if they work in a dynamic field (e.g., emergency services) or have a security clearance which negates their ability to answer the bulk of your questions. If this happens, you have a couple of back-up options:

1. Send an email with a list of questions to the contact, or send them your phone number with a wide-open calling schedule. This is useful if your contact has a random or on-call schedule.

2. Ask your contact if there is someone else you could connect with (it could even be their assistant).

3. Speak to the company’s HR branch to see if you can request a company-specific job requirement print-out or link. These will usually be more particular than the industry requirements. But don’t ask for something you can find yourself on the company’s Careers page online.

Nothing beats an in-person interview over a cup of coffee, but — again — wasting someone’s time isn’t a good way to receive useful information about the position in which you’re interested.

Before transitioning to your next position or career field, consider conducting an informational interview. You’ll be amazed at the amount of insider information you can glean from simply listening to someone discuss their day in detail.

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The sad truths you missed about the US Women’s Soccer Team lawsuit

(NEWS) The US Women’s Soccer team dominated headlines by suing for equal pay, but there was so much more to the lawsuit that could have a ripple effect in the business world.

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womens soccer lawsuit

Recently, on International Women’s Day, the United States Women’s Soccer Team (USWNT) filed a lawsuit against the US Soccer Federation. The timing of the suit is not only a sign of the team continuing their decades long fight against the organization (only three months before they are set to defend their World Cup title in France), but a recognition of the symbol that they have become in the larger battle that women and other minorities are waging in order to be given the same resources as the men leading in their fields.

It should go without saying that the women’s soccer team is unparalleled in its athletic success: over the past twenty years they have won three World Cup titles and four Olympic gold medals. These players, as ESPN acknowledges, are among the most accomplished and best known women athletes in the world.

Their counterpart, the Men’s National Soccer Team, leaves much to be desired (they failed to qualify for last year’s World Cup, for example) yet they consistently receive much more support from the US Soccer Federation.

Although the pay disparity between the USWNT and the male soccer team is certainly stark, the “gains” that the women athletes are fighting for go beyond monetary compensation.

According to Mashable, “This [suit] includes how women frequently play on a dangerous artificial surfaces when the men do not, fly commercial when the men travel by more convenient, comfortable charter flights, and the alleged allocation of fewer resources to promote women’s games compared to men’s.”

As if being the best players in your sport in the world and having to share hotel rooms after getting torn apart by the seams astroturf and receiving less-than-world-class medical care wouldn’t be infuriating enough, it’s truly this final point that highlights the glaring mistreatment of the USWNT.

Without support from the US Soccer Federation, not only in the form of payment but in promotion of their games and general good-will toward their players, the USWNT will not be able to grow their following so that they can establish a consistent revenue near what the men’s team attracts. This “lack” of revenue continues to create the chicken/egg excuse that the Federation has for not propping up the USWNT like they deserve.

It’s simply the opposite of “sportsmanship” for the US Soccer Federation to use these players’ love of playing the game (that, again, they are the best in the world at) and their country as a way to gaslight them into playing for less.

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Think about automating tasks instead of replacing workers

(BUSINESS) Automation is great, unless you obsess over it and try to cut down on payroll – there’s a smarter approach that successful businesses take.

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automating tasks not people

The concept of automating your workflow is a tempting one — especially as payroll continues to be one of the evergreen highest costs of business. However, in contemplating how to streamline your workflow, you may do better to step back from the idea of “replacing workers” and instead think about you can optimize your existing employees by strategically tweaking their workflow.

As Ravin Jesuthasan and John Boudreau write in The Harvard Business Review, if the goal of automating is to ensure that your company is operating at its most cost effective and efficient levels, then chances are you’d still need knowledgeable employees to help you scale and capitalize.

Where automation can truly help your business is by transforming the ability of your organization to focus on the tasks that truly require a human touch or deep knowledge. For example, automation will not help your employees perform complex, interactive, or creative work like collaborating with clients to come up with solutions or designs.

However, it can help the process of brainstorming or co-designing these solutions easier by replacing some of the mechanical tasks that aid this high-level workflow.

For example, it may be helpful to automate basic research tasks for your designers. If your designers must create a client profile to help them launch their projects — basic information must surely exist at some other point in the process before this point. Maybe your firm has an intake form or contracts where a basic description of the goal of the contracted service has been created. By automating the sharing of that data between departments, perhaps in a content management system, you’d be able to free up time that the designers might spend on basic data collection so that they could instead use it for their more complex, empathetic work.

Jesuthasan and Boudreau offer up other advice for thinking about which specific tasks within your company’s workflow are the best candidates for automation.

Is a task simple? Routine? Does it require collaboration?

These kinds of inquiry are not only useful when thinking about your organizational processes, but they are good refreshers for thinking about the individual value and skills that your organization and its workers offer clients.

So instead of looking at how to cut down on payroll, consider automation as an option to improve the value you’re getting from your team, and freeing them from mind-numbing tasks that have nothing to do with their expertise. Win-win!

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