United States District Court, W.D. Washington, Seattle
WRIGHT TREMAINE LLP Jonathan M. Lloyd, James L. Howard, Max
B. Hensley, Attorneys for VHT, Inc.
GODFREY LLP Edgar G. Sargent, Genevieve Vose Wallace, Jordan
Connors, Jenna Farleigh Attorneys for Zillow Group, Inc. and
L. ROBART United States District Judge
is vested in this Court by virtue of 28 U.S.C. § 1331,
because this case raises federal questions, including under
the Copyright Act, 17 U.S.C. § 101 et seq.
CLAIMS FOR RELIEF
plaintiff will pursue at trial the following
claims that Defendants infringed its exclusive rights as
copyright owners of 27, 358 photographs by reproducing,
distributing, and displaying those photographs on the Digs
home improvement platform on Zillow's website,
www.zillow.com (the "Digs Site"). VHT also
maintains that Zillow created unauthorized derivative works
of each of those photographs. VHT also asserts claims against
Zillow for secondary liability with regard to user posting of
images to the Digs Site by reason of Zillow's material
contribution to that infringement and its inducement of users
to infringe. Zillow is also liable for vicarious liability as
it has the right and ability to control those user posts and
has a direct financial benefit from use and/or display of the
VHT Photographs on the Digs Site.
holds copyright registrations for 27, 358 images infringed
directly or secondarily by Zillow on the Digs Site, creating
& prima facie presumption of ownership and
validity as to each of them. Each of the photographs is an
original work of authorship and copyrightable subject matter,
owned by VHT pursuant to work-for-hire agreements and/or
assigned by each photographer who created the photographs to
VHT for all purposes. The effective date of registration for
each photograph at issue in this case is the date of filing
of the applications, regardless of whether registration was
granted by the Office or is granted by the Court. VHT also
asks the Court, as a matter of law, to grant protection for
an additional 4, 759 photographs for which the Copyright
Office has refused to grant registration.
seeks actual damages and/or infringing profits to the extent
non-duplicative or, at its election at any time prior to
final judgment, statutory damages for willful copyright
infringement by Zillow. Actual damages will be determined by
the amount that a reasonable willing buyer and a willing
seller in all the attendant circumstances would have
negotiated as of the time of the infringement for licenses to
use the images on the Digs Site. VHT is entitled to a
statutory damages award for each photograph effectively
registered prior to Zillow's infringement and that it can
prove has independent economic value, to be determined by the
jury within the statutory ranges which vary with the level of
Zillow's culpability. VHT maintains that Zillow's
conduct was willful.
Defendants will pursue the following defenses:
holds an implied or express license authorizing the uses of
VHT photographs that VHT challenges in this case. The
photographs at issue in this case were created by VHT at the
request of its customers and clients. When VHT delivered the
photographs to its customers and clients, VHT intended that
those customers and clients would distribute and copy the
photographs. VHT also understood and intended that those
customers and clients would submit the photographs to
websites, including Zillow, which would themselves copy and
display the photographs.
supporting the existence and scope of Zillow's license
includes: (1) custom and practice in the real estate
industry; (2) the course of dealing between relevant parties,
including VHT, VHT's clients, Zillow, and other websites;
(3) the terms of VHT's written license agreements with
many of its clients, including provisions granting those
clients rights to use VHT's photographs in marketing
efforts and rights to post the photographs to an unrestricted
number of websites; (4) the terms of VHT's "Terms of
Use, " contained on its website, which Zillow contends
does not constitute an enforceable agreement with any
customer or client but which nevertheless demonstrate
VHT's intent to license its customers and clients with
rights to copy and distribute the images on any unrestricted
number of marketing platforms, including websites; (5) the
terms of the implied license between VHT and any customer or
client with whom it does not have a written license
agreement, which include, at the very least, the permission
to use VHT photographs on an unrestricted number of websites
for unrestricted purposes.
will show that any copying of VHT images in connection with
the operation of the Digs site was fair use. All such copying
undertaken by Zillow is performed solely to facilitate
operation of the website, primarily for the purpose of
improving the display characteristics of the image in various
contexts (e.g. display on different devices, or display in
different sections of the Zillow website, including Digs).
Because this copying is an inevitable and necessary part of
operating the Zillow website, because it is overwhelmingly
authorized, and because it had no effect on any market for
those images, this copying constitutes protected fair use.
Zillow asserts that fair use is a complete defense to
VHT's allegations of infringement based on the copying of
VHT images in order to make them available on Digs. Zillow
will not contend that fair use is a defense to allegations of
copyright infringement based on the display, as opposed to
copying, of images.
3. Unclean Hands Doctrine/Defective
'Zillow contends that VHT is barred from recovering
because of unclean hands/defcetive registration with respect
to its representations to the Copyright Office that-resulted
in the registration
is a Delaware corporation with its principal place of
business in Rosemont, Illinois.
VHT's primary business involves the creation and curation
of photographs of residential real properties listed for
sale, and the licensing of those photographs to real estate
brokers and agents.
Zillow, Inc. ("Zillow") is a Washington corporation
with its principal place of business in Seattle, Washington.
Zillow Group, Inc. ("Zillow Group") is a Washington
corporation with its principal place of business in Seattle,
Washington. Zillow Group was formed following the
announcement of the planned merger of Zillow, Inc. and
Zillow is a wholly owned subsidiary of Zillow Group.
Zillow was founded in 2005 and launched the
Zillow.com website in 2006.
has a network of professional real estate photographers (the
"VHT Photographer Network'').
a broker or agent requests that VHT obtain and license photos
of a residential real estate property, VHT dispatches one of
the photographers in the VHT Photographer Network (the
"dispatched photographer") to shoot photographs of
United States Copyright Office has issued copyright
registrations to VHT for 27, 358 of the photographs that are
the subject of this action ("VHT Photographs").