Updated: Jan 31, 2022
A six-year court battle over the destiny of sold listing images appears to be finished.
Judge James L. Robart of the U.S. District Court in Seattle ruled on Wednesday that Zillow must pay VHT Studios almost $2 million in damages for using thousands of VHT's images on its website.
For the companies, it has been a roller coaster. VHT first sued Zillow in July 2015, claiming the listing giant had stolen its intellectual property by copying its pictures on Zillow Digs, a home renovation website. VHT had over 75,000 real estate professionals as customers at the time.
Except for one brokerage, VHT reserves copyright for all images taken on its behalf by photographers and licenses them to listing agents and brokers solely for promoting the featured property or the company or agency representing it — and only while it is on the market.
But Zillow assured Inman at the time that it had followed the license agreements reached with the photo providers, which included agents, brokers, and multiple listing services. The company said it only utilized photographs for Zillow Digs if licensed.
Agents, brokers, and MLSs granted Zillow a “license to use, copy, distribute, publicly display and perform, and create derivative works of the data, only on and in connection with Zillow's websites and other properties.”
After a listing expires, Zillow keeps the data and gives you credit whenever it displays it on the Zillow website.
In 2017, a jury awarded VHT almost $8 million in damages after ruling that Zillow directly infringed on 28,125 of their photographs, 3,373 of which were deliberately violated.
A federal court later that year reduced the judgment to just over $4 million and reduced the number of “willfully infringed” photographs to 2,700.
Both companies appealed to the 9th U.S. Circuit Court of Appeals in 2018. It later vacated the jury's verdict of intentional infringement of those 2,700 photographs.
The appeals court also remanded the case to a lower judge to recalculate damages. VHT filed an appeal with the US Supreme Court in June 2019, but it was dismissed.
While VHT claimed that the prior damages award should continue, Zillow asked the court to either declare its infringements harmless or order a new trial for the 2,700 photographs.
In December 2021, the court ordered a new trial. Robart determined Zillow had infringed 388 VHT photographs before VHT notified the company on July 10, 2014.
Without access to VHT's license agreements with its customers, Zillow couldn't verify that the feed providers misrepresented their rights to VHT's photos, Robart wrote on Monday.
Accordingly, the court finds that Zillow was unaware of any violation until July 10, 2014. Because of this, its infringement on Digs of 388 VHT searchable photos was innocent.”
His conclusion was that after this date, Zillow understood that its usage of VHT photographs infringed on VHT's copyrights.
Using those photographs infringed copyright as of July 10, 2014, the court concluded, Robart noted.
Adding 2,312 photos to Digs after VHT received the Notice Letter was not innocent.
Each unintentionally infringed image received $200 in statutory damages from Robart, with the remaining photos receiving $800 in statutory damages (just above the statutory minimum of $750).
This was on top of $3,867.64 in damages granted in 2017 for additional 1,221 photographs. From the 2017 ruling to the date of payment, the court awarded VHT post-judgment interest on the total damages award of $1,931,067.64.
For the photographs that were not innocently copied, Robert set a somewhat higher amount “to deter companies from using works in new products without first confirming that they have the correct licenses.”
“We appreciate the court’s ruling and believe it to be an overall favorable decision on the matter. We take copyright protection and enforcement seriously and will continue to respect copyright permissions across our platforms” a Zillow spokeswoman told Inman via email.
VHT co-founder and CEO Brian Balduf told Inman he was pleased with the outcome.
According to Balduf, the issue of licensing and rights to use images has gotten worse since the case began.
According to the MLS, “We continue to see third parties insisting that agents get and give broader rights to photographs than the agent actually needs or pays for. Agents usually hire a photographer to use their photos to sell their own business and the subject property. Agents are caught in the middle when third parties downstream wish to use such images.
“We are working to keep agents out of situations they shouldn't be in. We are currently working on a platform for real estate photography rights management. It is like how ASCAP and BMI help musicians; they help other parties utilize music photos for legitimate, constructive reasons without involving or charging the agent.
“I'd say it's TBD at this point, still need to dig deeper into the ruling to determine that from a legal perspective,” said Balduf.
When asked if Zillow planned to appeal, they did not reply. An appeal must be filed within 30 days of the ruling.
Who takes your listing photos and what kind of license do you have for the photos? Let us know in the comments below or discuss with a colleague in an upcoming CE Class!