Is tagging a photograph copyright infringement or fair use? VHT v. ZILLOW

A copyright grants its owner the exclusive right to reproduce, distribute, perform, display and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise one of these rights without permission that can be considered copyright infringement. A copyright grants its owner significant control over the work covered by the copyright, however that control has limits. An important limit to the rights granted by a copyright is fair use.

Fair use is a doctrine in copyright law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. If a plaintiff accuses a defendant of copyright infringement the defendant can claim that the infringement is excused because the use of the copyrighted material is a fair use. In the United States a court will look at several factors when determining whether a fair use defense is valid. Generally speaking the four fair use factors are; (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

The law is playing a constant game of catch up with technology. United States copyright law was written long before the internet was available in most households, therefore whether an activity on the internet constitutes copyright infringement can sometimes be ambiguous. Many internet based companies operate on principle “move fast and break things.” This principle encourages pushing the limits of both technology and ambiguities in the law. When the law is ambiguous it is helpful to review court cases to see how courts have interpreted the law in specific situations.

A case which deals with the fair use of copyrighted photographs on the internet is VHT, Inc. v. Zillow Group, 17-35587, 17-35588 (9th Cir. 2019). The plaintiff in this case is VHT, the largest professional real estate photography studio in the United States. The plaintiff licenses its photographs to real estate professionals to market properties. The defendant in this case is Zillow, an online real estate marketplace. The defendant receives photos of real estate, through digital feeds and user submissions, which are published on Zillow’s website. Some of the photographs on the Zillow website include copyrighted photographs owned by VHT. VHT brought claims for direct and secondary copyright infringement relating to Zillow’s use of VHT’s photographs on Zillow’s website.

The “Digs” section of the Zillow website consists of photographs selected from the listing platform section that Zillow moderators tag with various criteria (room type, style, cost, color) to make them searchable. Zillow argued that its use of the photographs on the “Digs” section of its website, which focuses on home improvement and design was a fair use. At summary judgment, the district court rejected Zillow’s fair use defense. The jury was instructed to consider only whether “reproduction, cropping, and scaling” of those photographs by Zillow constituted fair use. The jury returned a verdict for VHT on direct infringement involving the tagged Digs images, and the court denied Zillow’s motion for judgment notwithstanding the verdict. Zillow appealed the verdict to the Court of Appeals for the Ninth Circuit.

The primary questions presented to the Ninth Circuit was whether the tagging of photographs, to make the photographs searchable on a website, is transformative and a fair use. The Ninth Circuit distinguished Zillow’s use of photographs from general internet search engines, which have been found to be fair use. The Ninth Circuit noted that internet search engines are considered transformative because they display results from the entire internet, point a user back to the source of a copyrighted work and generally only present a thumbnail of the original work. Zillow by contrast displayed only results stored on its website, typically the full image and the purpose of Zillow’s use was the same as the the defendant i.e. to artfully depict rooms and properties. Because purpose and character of Zillow’s use lacked transformation the Ninth Circuit determined fair use was generally disfavored. The remaining three factors did not change this determination. The Ninth Circuit agreed with the district court that merely tagging photographs was not a fair use.

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