Why McMansion Hell Legally Uses Zillow Photos
According to Jezebel, architecture critic blog McMansion Hell , which takes snapshots of property listings and adds witty and enlightening commentary, is grappling with a legal threat from real estate site Zillow , which has demanded blogger Keith Wagner remove all images captured from their site. The Electronic Frontier Foundation’s digital rights advocacy group quickly defended Wagner. Zillow told Gizmodo this afternoon that they had backed off , but according to the EFF, Wagner will stop using Zillow images in the future. She must?
Zillow did not have much business – the company does not have exclusive rights to the images in question, and contrary to the letter, Wagner’s use clearly appears to be legally protected fair use, Jezebel Hermes of the Media Law Resource Center told Jezebel.
US copyright law uses four factors to determine the fair use of existing copyrighted material:
- Purpose and Use: Educational or Non-Commercial Use? Does the work significantly transform the reproduction?
- “The nature of the copyrighted work”: Is the original work based on fact (not imagination)? Is it published?
- “The amount and materiality of the portion used in relation to the copyrighted work as a whole”: Is only a small or insignificant portion of the original work reproduced in use?
- “Impact of use on potential market or value of copyrighted work”: Does use leave the market value of the original work unchanged?
Federal courts interpret these factors differently, and sentences in different cases can be conflicting. But the more often you answer “yes” to the above questions, the more likely you do not understand anything.
The use of Zillow photographs at McMansion Hell is educational and transformative, uses actual work, and does not diminish the market value of the original photographs (although this is not very good for the value of the houses themselves), so it is unlikely that a court will find it illegal.
Wagner’s swift and righteous defense on the Internet is an inspiring sign for Internet commentary and comedy. Fair Use protects classic internet remixes like Garfield Minus Garfield ,Honey Badger Don’t Care, and Fark’s Photoshop contests , as well as many startups that collect information, including Zillow. This is the most important defense of innovation.