“A Goldmine of Vapidity”: McMansion Wallpaper or Copyright Lawsuit?

By: Corri Hopkins *| Guest Writer

https://pixabay.com/en/mansion-house-home-real-estate-875094/

“This image has internet meme potential,” mocked a popular internet blogger. Shortly thereafter, McMansionHell author, Kate Wagner, learned that Zillow.com was not in on the joke.

McMansionHell is a popular blog known for sarcastic commentary on “ugly houses that became ubiquitous before (and after) the bubble burst.” Wagner is a twenty-three year old architecture student at Johns Hopkins University. Her blog superimposes witty commentary onto real estate listing photos “to educate the masses about architectural concepts, urban planning, environmentalism, and history by making examples out of the places we love to hate the most: the suburbs.” Think: Perez Hilton takes on an Architectural Digest tumblr. Many of the photos Wagner uses, however, come from the listing website Zillow.com.

On June 26, 2017, Zillow sent Wagner a cease-and-desist letter, which demanded that she stop using Zillow for any purpose, and that she delete all images from McMansionHell that originated on Zillow. Among other things, Zillow’s letter specifically alleged that, by using and modifying images downloaded from Zillow, Wagner infringed on the rights of the copyright holders of the images under 17 U.S.C. § 107.

In response to the letter, Wagner immediately suspended McMansionHell and sought legal counsel via Twitter. Many lawyers weighed in, dismissing Zillow’s contentions as bullying tactics intended to stave off breach of contract claims by the actual owners of the images. Electronic Frontier Foundation (EFF), “the leading nonprofit organization defending civil liberties in the digital world,” took on Wagner’s case. EFF summarily disposed of Zillow’s arguments with a letter of its own.

Primarily, EFF’s letter attacked Zillow’s contention that Wagner violated federal copyright laws. EFF pointed out that Zillow had no standing to sue on behalf of another person’s copyright. Zillow does not even own the photos it posts; those photos belong to the listing agents for each property.

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Even if Zillow had standing, Wagner’s use of the photos amounted to “fair use,” which allowed Wagner to use the photos without permission. The Eleventh Circuit recently held that a blogger’s use of a person’s photograph to critique that person’s character survived the “fair use” balancing test under 17 U.S.C. § 107. The “fair use” doctrine allows that using “a copyrighted work…for purposes such as criticism, comment, news reporting … or research, is not an infringement of copyright.” EFF argued that Wagner’s use of altered images from Zillow–entirely for criticism and comment–would similarly survive the “fair use” balancing test.

If the federal statute did not smother Zillow’s zeal, perhaps the First Amendment did. EFF reminded Zillow that the Supreme Court protects even an “offensive parody.” In fact, the Tenth Circuit ruled, in 1999, that statements of opinion and parody are protected by the First Amendment. Wagner’s blog constituted statements of opinion and parody and is likewise protected by the First Amendment.

Within three days of sending its cease-and-desist letter, Zillow backed down, provided that Wagner does not use any further images from its website. Wagner agreed and quickly restored McMansionHell’s “internet meme potential.”

Corri Hopkins is a rising second-year law student, and is beginning the Master’s in Sustainability program, at Wake Forest University. She holds a Bachelor of Arts in History from Duke University. Upon graduation, she intends to practice environmental law.