VHT, a large professional real estate photography studio, filed suit against Zillow alleging copyright infringement for use of its photographs on the Zillow Digs website. VHT’s clients consist of real estate agents, brokerages and listing services, who hire VHT to photograph properties for marketing purposes. The photos are edited by VHT, saved in their electronic photo database, and then provided to the clients per their license agreement. Zillow used VHT photos on its “Listing Platform” (primary property display) and on a section of the website called “Digs” (geared toward home improvement and remodeling). VHT took issue with the use of its photographs on the Zillow Digs platform. The appeals court affirmed that, “Zillow’s addition of searchable functionality on the Digs home design webpages was not fair use.”

Zillow argued that VHT failed to register those copyrights with the U.S. Copyright Office in a timely fashion. The court disagreed with that argument, partly because copyright protection begins as soon as a work is created, not when it is registered with the copyright office.

Zillow also argued that the photos, since they were registered as a compilation, should only count as “one work”, thus allowing VHT only one award of statutory damages. Statutory damages for infringement with respect to any “one work” range from $750.00 to $30,000.00. The determination of the 2,700 VHT photos being considered “one work” or each having its own independent economic value was discussed in detail by the appeals court. The court stated that although VHT licensed the individual photos in a database, the database itself was not published, and that Zillow used each photo individually for its Digs platform. The court sided with VHT and confirmed that Zillow infringed the individual photos and that each of those 2,700 photos had independent economic value, thus VHT was entitled to statutory damages for each of those 2,700 infringements. The court included language from a Seventh Circuit U.S. Court of Appeals decision that provided an example of compilation vs one work:

“Although independent economic value is just one factor to consider, the Seventh Circuit explained its relevance by way of an analogy that resonates here: [T]hink in the first instance of the multiple protected works as a quilt and then ask whether any one individual patch has discernable, independent economic value— whether once separated from the quilt a particular patch lives its own copyright life (as “one work”)—or instead whether the value lies in the patches’ combined assembly into the quilt as a whole (as a “compilation”).

Access the entire VHT v. Zillow order

The VHT v. Zillow decision is a good reminder to our members about the necessity of having appropriate permissions to use any content in marketing and advertising that they did not create themselves. Many of our members use professional photographers and have license agreements with those photographers. Photographs may also be taken by agents, homeowners, and brokerage employees. Be sure to obtain an agreement with the creator of the content and review those agreements carefully to confirm whether you have total rights, as in a work made for hire, or what limited rights you have in those photos and how those rights permit you to use the photos.

NAR has a substantial copyright section that provides sample license agreements and other tips to reduce your risk of copyright infringement claims.