Real estate agents and brokers may want to keep track of what happens to the photos they send to portal giant Zillow — and the terms under which they are sent.

Real estate photography company VHT Inc. has filed a copyright infringement suit against Zillow and parent company Zillow Group, alleging that Zillow has illegally used hundreds and potentially thousands of VHT’s photos on Zillow Digs for its own profit and gain.

Zillow Digs is a home improvement section of Zillow’s website and also a separate mobile app. Zillow makes money from Zillow Digs in part by selling advertising to vendors based on the items that appear in specific photographs and manually embedding the ads in the photos.

Screenshot of one of the photos at issue in the lawsuit.

VHT counts more than 75,000 real estate professionals nationwide among its customers. According to the complaint, with the exception of one brokerage, VHT retains copyright for all photos taken by photographers on its behalf and licenses the photos to listing agents and brokers solely for marketing the specific pictured property or the company or agent representing the property — and only while that property is on the market.

According to the complaint (embedded below), Zillow knew this because, in 2013, Zillow and VHT specifically discussed the possibility of Zillow licensing VHT’s photographs displayed on Zillow’s listing site for use on the Digs site — but no deal was ever made because Zillow said it had decided not to use VHT’s photos for Zillow Digs.

In emails to Inman, Zillow Group said it has abided by the terms of the licenses agreed to by the parties who provided the photos, including agents, brokers and MLSs. The company specified that it had used photos for Zillow Digs only if permitted by license.

“We respect and enforce copyright protections and permissions across our platforms,” the company said.

“We will vigorously fight the allegations and are confident in our position. Beyond that, we won’t comment on specifics of pending litigation.”

It is unknown at this point whether the license agreements that agents, brokers or MLSs signed with Zillow gave Zillow permission to use VHT’s photos for any purpose other than to market the specific for-sale homes pictured.

Marcia Paul, an attorney for VHT, told Inman neither VHT nor her firm know what is in any of the agreements brokers have with Zillow, “so I can’t possibly comment on whether there’s an inconsistency or not.”

Zillow’s generic listing feed terms state that agents, brokers and MLSs grant Zillow “license to use, copy, distribute, publicly display and perform, and create derivative works of the data, only on and in connection with the websites and other properties owned or operated by Zillow.”

The terms also say that “after a listing terminates, Zillow will retain the corresponding data and will provide you with attribution whenever displaying that data on the Zillow website.”

It is unclear what brokers’ or MLSs’ legal liability would be if they tried to give Zillow additional rights to the photos than those provided by their owner. But the generic listing terms on Zillow’s website state that brokers and MLSs “promise to indemnify and defend Zillow and its affiliates against all claims related to your data.”

That particular term was a sticking point for San Diego-based MLS Sandicor in its unsuccessful direct-feed negotiations with Zillow earlier this year. “They were pushing the liability back to us,” Sandicor CEO Ray Ewing said at the time.

Several dozen of the 316 photos at issue in the complaint included watermarks for Chicago-based brokerage @properties. @properties co-founder Thaddeus Wong and a spokesman for the area’s MLS, Midwest Real Estate Data (MRED), did not respond to requests for comment.

Infringement of copyright does not need to be intentional in order to be prohibited by copyright law. But VHT alleges it was intentional, particularly since the feeds Zillow receives from MLSs explicitly tell Zillow when a property has been sold.

“Notwithstanding that express notice, Zillow does not remove all of the ‘SOLD’ listings from its site, although it does remove the listing agent or broker’s name once the property is sold,” VHT’s attorneys said in the complaint.

“Instead, Zillow continues to display many of the SOLD listings with the accompanying photographs in an apparent effort to drive further Web traffic to its site and to sell more ads.”

The complaint includes claims for direct copyright infringement, contributory copyright infringement by material contribution, contributory copyright infringement by inducement, and vicarious copyright infringement.

The latter three claims are due to a feature that allows visitors to Zillow’s listing site to save listing photos to Zillow Digs, where it then becomes available to everyone on Zillow Digs.

VHT’s complaint alleges:

“Despite transparent efforts to immunize itself from copyright infringement claims by pointing its corporate finger at both its users and the listing agents and brokers who post their photographs on Zillow to sell their properties, it is Zillow itself which posted many of VHT’s images to the Digs Site; Zillow uses photographs from homes that are not for sale and makes no effort whatsoever to remove those images once properties are sold; it induces users to post images to the Digs site; it uses those images to induce advertisers to fill Zillow’s coffers with advertising revenue; and it tags and groups the photographs and pastes advertisements directly on top of VHT’s images.

“Zillow cannot hide behind safe harbors and blame others for its own brazen theft.”

VHT seeks damages and a permanent injunction barring Zillow Group from infringing VHT’s copyrights. The company also hopes to gain access to Zillow’s databases to determine the extent of the infringement, which VHT said could include “thousands” of photos.

Do you know what happens to your listing photos on Zillow after the property has been sold? Let us know in the comments below.

Complaint Doc1 070815

Email Andrea V. Brambila.

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