Intellectual Property News and Reports

This is the second time we have considered copyright claims concerning the online display of photos by Zillow Group, Inc. and Zillow Inc. (collectively, “Zillow”), an online real estate marketplace. In VHT Inc. v. Zillow Group Inc. (“Zillow I”), we addressed infringement claims related to tens of thousands of real estate property photos displayed by Zillow on its website. 918 F.3d 723, 732, 734 (9th Cir. 2019).

VHT is the largest professional real estate photography studio in the country, and thousands of the copyrighted photos on Zillow’s site come from VHT. Id. at 730. VHT’s clients, including real estate brokerages and listing services, hire VHT to photograph properties for marketing purposes. Id. The photos are retouched and edited by the company, saved in VHT’s electronic photo database, and delivered to the clients per their license agreement. Id. Zillow used VHT’s photos in two ways: on its real estate “Listing Platform,” which is the primary display of properties, and on a section of the website called “Digs,” which “features photos of artfully-designed rooms in some of those properties and is geared toward home improvement and remodeling.” Id.

Following summary judgment rulings, a jury trial and various post-trial motions, in Zillow I, we affirmed the district court in large part. Essentially, we agreed with the district court that Zillow was not liable for direct, secondary or contributory infringement. See id. at 750. However, we determined that Zillow’s addition of searchable functionality on the Digs home design webpages was not fair use. See id.at 743–44. We also reversed the jury’s finding that Zillow had willfully infringed 2,700 searchable photos displayed on Digs, see id. at 748–49, and remanded for consideration of statutory damages and a determination “whether VHT’s photos used on Digs are part of a ‘compilation’ or if they are individual photos,” id. at 748.

Now, following more motions and a bench trial, the case is back before us. This time around, we affirm the district court’s decision in full.

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