Zillow Heads Back to Court Over $4m Listing Photos Copyright Battle

VHT Zillow Copyright Infringement 2021
Image courtesy of Adobe Stock

Background

The copyright battle over 28,000 listing photos continues for real estate photography company VHT and their claim against Zillow, everyone’s favorite Seattle-based real estate app. (Cue SNL’s recent parody video describing every mid-30’s Zillow fantasies.) VHT claims that Zillow used 28,000 listing photos for marketing purposes without permission.

The Issue

As early as 2013, VHT noticed that Zillow was using their images—originally licensed to real estate agents and brokers—as marketing materials on Zillow.com, Zillow apps, and Zillow’s now-defunct Digs home improvement website. VHT then offered to negotiate a license with Zillow, which never came to fruition. VHT filed an infringement claim in 2016. 

VHT, Inc. is an Illinois-based professional photographer and videographer that real estate agents use to create marketing listing photos for their properties. Since its founding in 1998, VHT has photographed more than 10 million rooms and helped sell over $200 billion in real estate. 

Real estate listing photos courtesy of vht.com

The Arguments

VHT claims that they licensed the photos to the real estate agents, but that license did not extend to commercial use by Zillow. VHT’s Terms of Use (in 2017; they have since been updated) stated:

“[a]ll images and media (‘Content’) created by VHT is the sole property of VHT. VHT retains ownership and licensing rights to all Content. Content is made available to clients for property specific marketing purposes only. Any publication of content for non-specific property marketing purposes is strictly prohibited by law without the express written consent of VHT.”

Zillow claims that real estate agents consented to their Terms of Use on their website when they uploaded the pictures, in addition to Fair Use.

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Image courtesy of vht.com

The Trials

In 2017, the 9th Circuit’s Western District of Washington determined that Zillow had misappropriated 28,000 images taken by VHT. The jury found willful infringement of 3,300 photos, and VHT was awarded $8.3 million in statutory damages

On appeal in 2019, U.S. District Judge James Robart cut the damages in half to just over $4 million because he did not find that Zillow’s infringement was willful. (A “willful infringement” differs depending on the jurisdiction. Generally, it means that an infringer used the copyrighted work deliberately and intentionally while knowing the copyright is owned by another person or company.) Both parties appealed because VHT still argues the infringement was willful (which would result in greater statutory damages), and Zillow argues that they did not infringe at all.

Where We’re At Now

On March 10, 2021, Judge James Robart issued an order denying both party’s appeals and ordering a new trial to be held as a 4-day virtual trial in July or August 2021.