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 COO and News Director at The American Genius, has co-authored a book, co-founded BASHH, Austin Digital Jobs, Remote Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.
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.
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.
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.
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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.
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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.