Real Estate Listings and Copyright Infringement Issues
Historically, the first step in purchasing a new apartment or home involves hiring a real estate broker to assist in navigating your search. This would include exclusive access to the multiple listing service database (“MLS”), an efficient method in which brokers market and exchange listing information.[1] As the frequency of MLS listings has increased over time, so too has the overall efficiency of the real estate profession.[2] At the essence of the listing content on an MLS is the photographs of the properties. Sellers or brokers use these photos of the property to market to potential buyers. Those buyers, then by looking at the pictures, determine if the property is worth visiting in person.[3]
Today, the Internet has transformed the landscape of this transaction and MLSs often license these property listings and their photos to online third-party real estate services such as Realtor.com or Zillow.[4] This altered the real estate industry in allowing both buyers and sellers themselves to utilize platforms like Zillow and StreetEasy before or in conjunction with hiring a broker. The photos in the listings can be taken by homeowners, real estate agents, brokerage employees, or by MLS or professional photographers—and there are many ways these photos can be licensed to different parties.[5] With all of these platforms posting the listings and their pictures, a key question arises: who owns these property photos and “what rights do they have to stop a third party from infringing on those rights?”[6]
Earlier this year, the Ninth Circuit addressed this issue when analyzing if Zillow, acting as a third-party listing service and hosting property photos on their website, infringed the rights of VHT Inc., a real estate photography company that had photographed the pictures.[7] The court found that there was no direct infringement as Zillow was merely hosting the real estate photos uploaded to its website by users.[8]
Zillow hosted the photos on two different sections of its website.[9] The first was the “Listing Platform”— the real estate property postings which serves as the main focus of the Zillow website.[10] The second was the “Digs” portion of the website, which serves as a design ideas website for the purposes of home improvement ideas and remodeling.[11] VHT, as the plaintiff, sued Zillow for copyright infringement, claiming that Zillow’s use of the photos on the “Digs” platform and continued use of “the listing photos in connection with ‘sold’ properties…exceeded the scope of the photographer’s limited license to use the photographs only in connection with active property listing.”[12]
The court focused on causation and whether VHT could demonstrate volitional conduct by Zillow.[13] Citing to Perfect 10 Inc. v. Giganews Inc., the court explained that website owners such as Zillow could be found liable for copyright if they were “actively involved in the infringement.”[14] This could be done by showing that Zillow was directly involved in the infringement by exercising “control beyond the general operation of [its website]” in the upload, download, storage, copying or distribution of the VHT photos.[15]
The court found that Zillow’s system for hosting the photos was designed in a copyright-protected way: “The content of the Listing Platform is populated with data submitted by third-party sources that attested to the permissible use of that data…The feed providers themselves select and upload every photo…that wind up on the Listing Platform. As a result, the photos on the Listing Platform were not ‘selected’ by Zillow,”[16] but by its users. Without an active role in the curation of the photos uploaded by users, the court did not find Zillow liable for direct infringement.”[17] The Supreme Court denied VHT’s petition for certiorari.
This case sets an important precedent for other online real estate service providers that host user-submitted listing information and photos.
Footnotes
