If you spend a lot of time on Instagram, you may be familiar with "Zillow Gone Wild." No, it has nothing officially to do with Zillow, the real estate marketplace company. But it basically is what it sounds like: an Insta account featuring eccentric homes from across the country. Created by Samir Mezrahi four years ago, it now has 4 million followers.
But its success was recently undercut a little bit when a photographer accused it of ripping off her photographs and posting them to the Instagram account. The lawsuit is fresh, but it can teach us a little bit about copyright law. Let’s dive in.
Bouma Gets Copied
Jennifer Bouma is a commercial photographer from Lake Stevens, Washington. She’s quite experienced, specializing in photographing both exteriors and interiors of real estate. In the fall of 2021, she took a few photographs of some medieval-looking interiors and exteriors with suits of armor, dragons, and other elements that gave those spaces a unique character as far as real estate photographs go. Bouma registered these photographs with the U.S. Copyright Office the following January and has been the exclusive copyright holder of the photos since.
But in February 2022, Zillow Gone Wild posted the same photographs that were taken by Bouma onto its commercial website on the Substack platform. Not only did Zillow never have a license to use these photos, they never even reached out to Bouma for permission for them. They simply copied Bouma’s images they found on the internet for their own use.
It wasn’t until over two years later that Bouma found out that Zillow Gone Wild had copied her photos without permission. She wrote to them to notify them of the violation, but she was unsuccessful in negotiating a license with Zillow to apply retroactively to the photographs.
So, Bouma took the matter to court.
Anatomy of a Copyright Claim
Late last month, she sued the parent company of Zillow Gone Wild, a corporation called Kale Salad, Inc. She alleges copyright infringement.
There are a couple of things you need to show in order to have a successful claim of copyright infringement. First and foremost, you must be able to prove that you are the legal owner of the copyrighted material in question. This was easy enough for Bouma. Not only did she register her copyright with the Office, but her work was publicly displayed on the internet at an earlier date than Zillow Gone Wild.
Bouma accuses Kale Salad of reproducing, distributing, and publicly displaying works copyrighted to her without permission, in violation of the Copyright Act. Another requirement for a copyright infringement claim is that you must be able to demonstrate that the alleged infringer has copied or used your copyrighted material without your permission. This can be done through various means, such as providing side-by-side comparisons of the original work and the allegedly infringing material or presenting testimony from witnesses who can attest to the similarities between the two. Since Bouma’s photographs are the exact same as those she found on Zillow Gone Wild, this step is pretty easy to prove.
The Perks of Registration
One thing to note is that Bouma didn’t have to register her copyright in order to have the rights to it. At least in the United States, you own the copyright as soon as your work is “fixed in a tangible form.” In other words, as soon as you create an original work, such as a book, song, or software, you automatically own the copyright so long as it’s not still “in your head” but in some kind of medium, like a recording or on a Word doc. At that point, the copyright “attaches,” and you have the exclusive right to reproduce, distribute, and display the work, as well as create derivative works.
You can still sue for copyright infringement even if you haven't registered your work with the U.S. Copyright Office. However, registration does provide some important advantages in a lawsuit. For one, registration creates a presumption of ownership, making it easier to prove your case in court. The fact that Bouma had registered her photographs made this step a lot easier for her.
Also, if you register your work within three months of publication or prior to the infringement, you may be eligible for statutory damages, which can be up to $150,000 per infringement. Without registration, you can only recover actual damages, which may be harder to prove. On top of that, if you register your work and win a lawsuit, you may be able to recover attorneys' fees, which can be a significant cost savings. So, if Bouma wins her case against Zillow Gone Wild, she will be able to recover a lot more money than if she hadn’t registered.
The Harder ‘Harm’ Element
But perhaps where Bouma falls short in her complaint is the final requirement: it is also important to establish that the infringement has caused you some form of harm or loss. This could be in the form of lost sales or revenue, damage to your reputation or brand, or other tangible or intangible losses. Providing concrete evidence of these damages is crucial in order to build a strong case for copyright infringement. In her complaint, Bouma claims that she was damaged as a result, but she doesn’t specify how. She will need something a little more concrete further along in the litigation process in order to be successful in her claim against Kale Salad.
What You Can Learn from Bouma
While we’ll have to wait and see how Bouma’s suit shakes out, we can learn a thing or two about copyright infringement claims from her. With the rise of digital platforms and social media, copyright infringement has become a growing concern. We learned that registering your creative works is always a good idea. On top of that, if you suspect that someone has infringed on your copyrighted material, it's essential to take swift and informed action to safeguard your rights.
It’s best to seek the advice of a qualified attorney who specializes in copyright law. They can help you navigate the complex legal landscape surrounding copyright infringement, and can provide guidance on the best course of action for your specific case.
Related Resources:
- What Taylor Swift Can Teach You About Copyrights (FindLaw's Law and Daily Life)
- Can Someone Take My Photo Without Permission? (FindLaw's Learn About the Law)
- Lara Trump "Won't Back Down" from the Barbie Brand (FindLaw's Legally Weird)
