A California photographer of high-end properties says his contract with agents is “not transferrable and prohibits third party use without permission.” Zillow says his claims are without merit.
ICLV 2020
Real estate giant Zillow Group is facing another legal fight over its use of listing photos.
Just as the publicly-traded nearly $9 billion company dusts itself off from oral arguments in its ongoing battle with photo firm VHT, which accused Zillow of stealing photos and using them without proper permissions, a professional real estate photographer named George Gutenberg has filed his own suit alleging the company is using hundreds of his images on Zillow without his authorization.
According to the Sept. 17 complaint filed in U.S. District Court in California, real estate agents typically hire Gutenberg, who specializes in high-end residential and commercial properties in the state’s Coachella Valley, as an independent contractor to photograph a property for a negotiated fee.
He retains the copyright to all photographs taken of each property and grants the real estate agent a limited license to use the photographs for up to one year for the purposes of marketing the property, which allows the agent to place the photos on their website, in brochures, real estate magazines, and on the multiple listing service (MLS), the complaint says.
“The license expressly states that it is not transferrable and prohibits third party use without permission from Gutenberg,” Gutenberg’s attorney says in the complaint.
Earlier this year, Gutenberg found that Zillow was using 543 of his photographs on its listing detail pages without a license or his permission, according to the complaint. He has registered images with the U.S. Copyright Office — a requirement in order to bring a lawsuit for infringement of a U.S. work. The 711-page complaint contains copies of the images at issue as well as screen shots of Zillow’s use of the images. Gutenberg has a profile on Zillow.
Gutenberg’s profile on Zillow
The suit is claiming copyright infringement of the photographs and seeks an award of actual damages and disgorgement of any profits Zillow has made from the images or, alternatively, an award for statutory damages of up to $150,000 for each infringement — a figure that adds up to $81.45 million at max.
The complaint further alleges that “Zillow copies as many as five million photographs per day through its hundreds of MLS feeds without verifying copyright ownership of the copied photographs.”
In an emailed statement, a Zillow spokesperson told Inman, “We believe the claims are without merit and intend to vigorously defend ourselves against the lawsuit. As a general matter, we receive listing feeds from third parties such as MLSs and franchisors, subject to agreements with these parties that grant us a license to use the photos.”
Could this case spell trouble for agents and brokers who elect to allow their MLSs or franchisors to syndicate these photographs to websites other than their own?
In an emailed statement, Gutenberg’s attorney, Mathew Higbee of Higbee & Associates, said Gutenberg was not aware of any of his agent clients directly syndicating his images to Zillow or overstepping their rights under his licensing agreements with them.
Rather, Higbee accused Zillow of unlawfully copying millions of photographs per day off of MLSs, which are private listing databases populated by real estate brokers and their agents. He declined to comment on how Zillow was allegedly doing this.
Inman also asked Higbee whether Gutenberg’s limited license to agents prohibits them from distributing his images through Internet Data Exchange (IDX), which allows every agent belonging to a particular MLS to display all of the listings in that MLS on his or her website, regardless of whether or not he or she is the listing agent. IDX is not explicitly mentioned in the sample license agreement included in the complaint. Higbee declined to comment.
Complaint exhibit showing Gutenberg’s typical licensing terms
Higbee’s full statement is below:
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 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.
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