4 ms·

Likely copyright over the photographs. Realistically, it's fair use since it's transformative and used for critique. Unfortunately, fair use laws only apply i

Likely copyright over the photographs. Realistically, it's fair use since it's transformative and used for critique. Unfortunately, fair use laws only apply in the US if you have lots of lawyer money, so they don't really matter for normal folks.

vortico 9y ago
Correct, there are many tactics a well-paid lawyer can do to simply run anyone out of business based on a false or spurious copyright claim.
- glup 9y ago
  Why wouldn't a judge throw this out as spurious if it clearly falls under fair use? (procedural question; not asserting that it does or does not meet fair use in this case).
  - hvs 9y ago
    Some states have attempted to alleviate this with anti-SLAPP laws. https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation https://en.wikipedia.org/wiki/Strategic_lawsuit_against_publ...
  - vortico 9y ago
    The goal of the plaintiff's lawyer is to make dozens and dozens of claims, so that hopefully one of them sticks while the others are thrown out. This is the common practice.
  - Steeeve 9y ago
    While people here are making an argument that this is fair use, it's not quite so simple. You have to pay money to argue in front of a judge, and unless no counter-argument is provided, summary judgement is far from an inevitability.
    - pbhjpbhj 9y ago
      >You have to pay money to argue in front of a judge // USA, land of the free. Home of Freedom of Speech.
      - Steeeve 9y ago
        To be fair, nobody has paid anything at this point. Zillow sent this lady a C&D letter where TOS, not copyright, was the primary factor.
  - dragonwriter 9y ago
    > Why wouldn't a judge throw this out as spurious if it clearly falls under fair use? If there is no colorable argument against fair use, then it would presumably be thrown out at summary judgment on a motion by the defendant. But fair use analysis is rarely cut-and-dried, unless the fact pattern and context very closely mirrors something that has been previously litigated, and typically involves disputed questions of fact regarding impact, which would call for a trial.
clavalle 9y ago
I wonder if Zillow even has standing to sue over copyright because, as far as I can tell, Zillow gains the right to use agents' photos but there is no copyright transfer.
- icebraining 9y ago
  Maybe their agreement allows them to act as an "enforcement arm" of the agents? What I find interesting is the choice to threatening them rather than just sending a DMCA takedown to Tumblr. Then again, the people (bots?) sending these emails may have no idea where it's hosted.
  - Analemma_ 9y ago
    > Maybe their agreement allows them to act as an "enforcement arm" of the agents? I don't think the courts recognize such agreements as valid, as the demise of Righthaven showed.
    - icebraining 9y ago
      I'm thinking more of a financial backing of the lawsuit, not as plaintiff. You know, being the Thiel for the agent's Hulk Hogan.
- Garfgon 9y ago
  I believe in some cases a licensee also has standing to sue over copyright; e.g. if the licensee is granted an exclusive license.
  - mi100hael 9y ago
    Zillow is almost certainly not granted an exclusive license. Listing photos are posted on many sites simultaneously. For example, this is the first listing I clicked on in Zillow. Immediately found the same listing on Redfin with the same photo watermarked by a 3rd party. https://www.zillow.com/homedetails/240-Centre-St-New-York-NY-10013/31496924_zpid/?fullpage=true https://www.zillow.com/homedetails/240-Centre-St-New-York-NY... https://www.redfin.com/NY/New-York/240-Centre-St-10013/home/45198238 https://www.redfin.com/NY/New-York/240-Centre-St-10013/home/... I'm sure it's on various other MLS sites with photos as well. The real copyright holder is most likely the listing agent or possibly even the photographer, and chances are they have no desire to send C&D notices because "any publicity is good publicity."
deleted 9y ago
[deleted]
acomjean 9y ago
I'm curious how just using a photo makes it "transformative". Those photos look straight up taken from one site and used on the next. (I ask as someones who's flickr photos ended up on the front page of a local paper... and was mildly annoyed, but it was promoting an event I work on.. had they just asked....) News organizations and documentaries pay lots of money to clear and use old stock news photos. I do enjoy the critique though...
- Amorymeltzer 9y ago
  For one, she frequently marks up the photos with arrows and text, most of which is uniquely humorous while also being educational. No one would mistake her images for a promotional piece, or anything other than satire, comedy, and education.
- obsurveyor 9y ago
  > I'm curious how just using a photo makes it "transformative". Those photos look straight up taken from one site and used on the next. The photos are annotated for the article. That's not a straight rip, definitely some transformation going on.
- hedora 9y ago
  Her use does not compete with the copyright holder's use -- no one is going to buy her house or fail to license the photos because of the blog. (They may decide not to buy the McMansion because of the blog, but trying to use copyright to silence critiques of a house won't fly in court). That argument does not apply to your photo, or stock photos from an archive. The distinction matters in the eyes of the law.
CobrastanJorji 9y ago
Many states have SLAPP laws that allow frivolous claims like this to be quickly shot down. It still costs money to defend against them, but it's a lot cheaper and the victim can win it back. Unfortunately, there's no Federal equivalent, so all it takes to get around it would be to sue in Federal court. A Federal SLAPP law would really help.
jws 9y ago
Does "used in critique" apply? If the critique was of the photos themselves that would seem to be in the spirit, but the photos are just lifted in order to critique the house.
mozumder 9y ago
Fair use critiques is designed for the photography itself, not for the subject of the photography.

vortico 9y ago

Correct, there are many tactics a well-paid lawyer can do to simply run anyone out of business based on a false or spurious copyright claim.

glup 9y ago
Why wouldn't a judge throw this out as spurious if it clearly falls under fair use? (procedural question; not asserting that it does or does not meet fair use in this case).
- hvs 9y ago
  Some states have attempted to alleviate this with anti-SLAPP laws. https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation https://en.wikipedia.org/wiki/Strategic_lawsuit_against_publ...
- vortico 9y ago
  The goal of the plaintiff's lawyer is to make dozens and dozens of claims, so that hopefully one of them sticks while the others are thrown out. This is the common practice.
- Steeeve 9y ago
  While people here are making an argument that this is fair use, it's not quite so simple. You have to pay money to argue in front of a judge, and unless no counter-argument is provided, summary judgement is far from an inevitability.
  - pbhjpbhj 9y ago
    >You have to pay money to argue in front of a judge // USA, land of the free. Home of Freedom of Speech.
    - Steeeve 9y ago
      To be fair, nobody has paid anything at this point. Zillow sent this lady a C&D letter where TOS, not copyright, was the primary factor.
- dragonwriter 9y ago
  > Why wouldn't a judge throw this out as spurious if it clearly falls under fair use? If there is no colorable argument against fair use, then it would presumably be thrown out at summary judgment on a motion by the defendant. But fair use analysis is rarely cut-and-dried, unless the fact pattern and context very closely mirrors something that has been previously litigated, and typically involves disputed questions of fact regarding impact, which would call for a trial.

clavalle 9y ago

I wonder if Zillow even has standing to sue over copyright because, as far as I can tell, Zillow gains the right to use agents' photos but there is no copyright transfer.

icebraining 9y ago
Maybe their agreement allows them to act as an "enforcement arm" of the agents? What I find interesting is the choice to threatening them rather than just sending a DMCA takedown to Tumblr. Then again, the people (bots?) sending these emails may have no idea where it's hosted.
- Analemma_ 9y ago
  > Maybe their agreement allows them to act as an "enforcement arm" of the agents? I don't think the courts recognize such agreements as valid, as the demise of Righthaven showed.
  - icebraining 9y ago
    I'm thinking more of a financial backing of the lawsuit, not as plaintiff. You know, being the Thiel for the agent's Hulk Hogan.
Garfgon 9y ago
I believe in some cases a licensee also has standing to sue over copyright; e.g. if the licensee is granted an exclusive license.
- mi100hael 9y ago
  Zillow is almost certainly not granted an exclusive license. Listing photos are posted on many sites simultaneously. For example, this is the first listing I clicked on in Zillow. Immediately found the same listing on Redfin with the same photo watermarked by a 3rd party. https://www.zillow.com/homedetails/240-Centre-St-New-York-NY-10013/31496924_zpid/?fullpage=true https://www.zillow.com/homedetails/240-Centre-St-New-York-NY... https://www.redfin.com/NY/New-York/240-Centre-St-10013/home/45198238 https://www.redfin.com/NY/New-York/240-Centre-St-10013/home/... I'm sure it's on various other MLS sites with photos as well. The real copyright holder is most likely the listing agent or possibly even the photographer, and chances are they have no desire to send C&D notices because "any publicity is good publicity."

deleted 9y ago

[deleted]

acomjean 9y ago

I'm curious how just using a photo makes it "transformative". Those photos look straight up taken from one site and used on the next. (I ask as someones who's flickr photos ended up on the front page of a local paper... and was mildly annoyed, but it was promoting an event I work on.. had they just asked....) News organizations and documentaries pay lots of money to clear and use old stock news photos. I do enjoy the critique though...

Amorymeltzer 9y ago
For one, she frequently marks up the photos with arrows and text, most of which is uniquely humorous while also being educational. No one would mistake her images for a promotional piece, or anything other than satire, comedy, and education.
obsurveyor 9y ago
> I'm curious how just using a photo makes it "transformative". Those photos look straight up taken from one site and used on the next. The photos are annotated for the article. That's not a straight rip, definitely some transformation going on.
hedora 9y ago
Her use does not compete with the copyright holder's use -- no one is going to buy her house or fail to license the photos because of the blog. (They may decide not to buy the McMansion because of the blog, but trying to use copyright to silence critiques of a house won't fly in court). That argument does not apply to your photo, or stock photos from an archive. The distinction matters in the eyes of the law.

CobrastanJorji 9y ago

Many states have SLAPP laws that allow frivolous claims like this to be quickly shot down. It still costs money to defend against them, but it's a lot cheaper and the victim can win it back. Unfortunately, there's no Federal equivalent, so all it takes to get around it would be to sue in Federal court. A Federal SLAPP law would really help.

jws 9y ago

Does "used in critique" apply? If the critique was of the photos themselves that would seem to be in the spirit, but the photos are just lifted in order to critique the house.

mozumder 9y ago

Fair use critiques is designed for the photography itself, not for the subject of the photography.