Real estate giant Zillow is being sued by a California photographer who intimates that the company has scrapped the images without anyone’s permission.
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 stops 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 transferable 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.”
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