Zillow Loses Second Round of Copyright Fight

The Ninth Circuit recently issued an opinion affirming that Zillow infringed thousands of copyrights owned by a real estate photography studio. Scott Hervey and James Kachmar discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel, here.   Show Notes: Scott: In 2019, the 9th Circuit affirmed the trial court's judgment against Zillow Group based on Zillow's use of VHT's photographs on Zillow's Digs platform. In June of this year 2023, this case found itself back up to the 9th Circuit. I'm joined by my partner, James Kachmar, to talk about this recent decision on this episode of The Briefing You. Thanks for joining us. I'm joined today by Weintraub litigation partner, James Kachmar. James, thanks for joining us today. James: Thanks, Scott, for having me. Scott: Certainly, James. Let's start by providing some context for our viewers and listeners. Could you briefly explain the background of the case between VHT and Zillow Group? James: Sure, Scott. Everyone should know what Zillow is the website with homes for sale. VHT is the largest professional real estate photography studio in the US. It is generally engaged by real estate agents and brokers to photograph homes for sale. These photos are edited, loaded into VHT's database, and then sent back to the agents and brokers pursuant to a license agreement to help promote their listings. VHT's photographs appear on Zillow's website one of two ways. First, Zillow will use these photographs as part of showing property listings on its website. Second, Zillow would feature some of these photographs on their website, Digs, to offer users or give people some home improvement ideas. VHT filed a copyright infringement lawsuit against Zillow, claiming that the photos were being used without their permission. Scott: In the previous trial, the 9th Circuit found in favor of Zillow on most counts, but reversed the findings of fair use. Regarding the use of the photos on the Diggs website. Could you elaborate on how the court reached that conclusion? James: Sure. The 9th Circuit in the first case, which is referred to as Zillow One, determined that Zillow had added searchable functionality on its Zigs website, which made it not a fair use of VHT's photographs. They concluded that Zillow had committed copyright infringement in doing so. However, the court in Zillow One held that Zillow was not liable for direct, secondary or contributory infringement and remanded the case back to the district court for further proceedings. This resulted in further motion practice and a second trial. Scott: The 9th Circuit addressed the issue of copyright registration and whether VHT's claims should be dismissed due to incomplete registration. Could you explain the court's reasoning and how it applied the U.S. Supreme Court's fourth estate decision? James: Sure. Just days before the 9th Circuit rendered its opinion in Zillow One, the US. Supreme Court issued its decision in Fourth Estate Public Benefit versus Wallstreet.com, in which it found that the registration requirement to bring a copyright infringement claim can only be satisfied when the Copyright Office has registered the copyright, not merely when the application for registration is filed by the plaintiff. When the case went back to the lower court, Zillow argued that because VHT had filed its lawsuit before the Copyright Office had registered its copyrights, the action should be dismissed. The lower court, however,