- Blogger Kate Wagner will discontinue use of Zillow images and the real estate giant will stop any further legal action.
After a stint of legal flexing, the intense but short-lived battle between Zillow and McMansion Hell has ended in compromise: Zillow will cease any further legal action, and blog creator Kate Wagner will stop using listing photos displayed on Zillow moving forward — though she will not remove any photos from Zillow used thus far.
“We have decided not to pursue any legal action against Kate Wagner and McMansion Hell,” said Zillow spokesperson Emily Heffter in an emailed statement. “We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won’t use photos from Zillow moving forward.
“It was never our intent for McMansion Hell to shut down, or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners — the agents and brokers who entrust us to display photos of their clients’ homes.”
Zillow said it was acting on behalf of its agent, broker and MLS partners by “enforcing and respecting” the usage rights they grant to Zillow. However, whether Zillow can enforce its terms of service in these types of scenarios is a legal gray area. While its approach with McMansion Hell — which pokes fun at homes of the supersize variety — received backlash and the company is halting further legal action, some agents and brokers may consider Zillow’s efforts and the blog’s decision to source its photos elsewhere as a positive.
As for future debacles of this nature, Zillow’s hands are tied when it comes to suing for copyright infringement on agents’ and brokers’ behalf. “Only the copyright owner or an exclusive licensee has the right to sue,” explained attorney Mitch Skinner of Larson Skinner PLLC. And even then, there is an extra layer: “Except for limited circumstances, copyright must be registered (or filed for registration) with the U.S. Copyright Office prior to instituting an action,” he said.
When it comes to Zillow’s agreements with listing providers, Skinner says it is likely that Zillow Group has agreed to “take reasonable measures” when protecting third-party content, but what is reasonable will vary depending on the circumstances.
Moreover, Nader noted that in a telephone conversation, Zillow Group claimed that Wagner also violated Zillow’s third-party agreement, to which Nader replied that Wagner “is not a party” to any of those agreements and is therefore not “bound” by them.
“Among other things, a contract requires ‘mutual assent,'” he said. “That means that the parties to a contract need to be aware of the terms and agree to them.
We won’t know for sure how this particular case would have played out, as Nader said “in the interests of compromise” Wagner would no longer use Zillow’s website nor source photos from Zillow for her blog, and both parties seem content to move on.
Editor’s note: Inman Deputy Editor Andrea V. Brambila contributed reporting for this story.