Update, 6/29: I know what it feels like to be legally bullied, and it is scary as hell. I have just heard that the Electronic Frontier Foundation (EEF) is now helping Ms. Wagner!
If you have wondered what has happened to the hilarious and often irreverent blog, “McMansion Hell,” that we have linked to on a few occasions, you’ll have to wait for the book*. McMansion Hell temporarily shut down after the founder, a 23-year old grad student at Johns Hopkins, got a cease and desist letter from none other than Zillow!
On Monday, Kate Wagner, a John Hopkins grad student focusing on architectural acoustics, found herself staring down the legal letterhead of a cease and desist order. In her spare time, she runs a popular blog, McMansion Hell, which skewers the trend of mass-produced suburban mansions. Posts on the site featured promotional shots with amenities like “doors to nowhere” and “compulsory chandeliers.” Real estate aggregator Zillow was not happy when it noticed she was using photos from its site. Wagner posted a picture of the order to her Twitter account and has since taken down the site while she seeks legal counsel.
Wagner started the blog just last year, and amid the ever-escalating obsession of Americans with real estate, it has grown and proliferated and been featured/linked to from many huge eyeball-reading sites such as Business Insider, The Independent, and Huffington Post. Our tag line, for example, is “The people who brought House Porn to the Bible Belt.” Wagner’s is “If you love to hate the ugly houses that became ubiquitous before (and after) the bubble burst you’ve come to the right place.”
McMansion Hell was a cleverly written blog that mixed sarcasm, internet/millennial lingo, and erudition into commentary all superimposed digitally onto real estate listing photos; sometime the front of a house, often the interiors. There was copy, too. She created a whole section of homes that are “Certified Dank™” (Texas has 3), her collection of the worst of the worst or “fugly”. Knowing how long and hard we work here at CandysDirt.com to produce quality content, I am sure Kate spent hours upon hours at her laptop.
It is interesting that Zillow, arguably the biggest, most popular and influential real estate website on the planet, sent the cease-and-desist to someone making $22,000 off her blog. Because Zillow makes all its revenue and builds its business model off of using photos provided to it for free from MLS feeds across the country.
Of course, it has permission to do so, which is Zillow’s “rational” for the cease and desist:
“The intent of the letter wasn’t to force the writer to shut down her site, but we have a legal obligation to enforce the agreements we make with the people who provide listings on Zillow,” a Zillow spokesperson told Gizmodo.
Pot calling kettle black? Ironically, a federal jury ordered Zillow to pay $8.3M in a copyright infringement lawsuit over 28,000 images used on the site from a Rosemont, Ill.-based real estate photography company. The $8.3 million jury verdict has been cut in half; the company, VHT Studios, says it is appealing.
According to BuzzFeed, many people think Zillow’s attempt to quash Wagner’s site is a “dick move” and legally groundless, since the doctrine of “Fair Use” permits content creators to use other people’s work for the purpose of criticism, commentary, parody or satire. It is also very interesting because, according to recent conversations I have had with Greg Hague, the photos Zillow is defending are not their’s but the owners of the homes and the agents representing them. Agents get very upset when Zillow sells ad space next to photos of their own listings and then let’s another agent (who has paid Zillow big bucks) buy an ad as if the home is THEIR listing. I think it’s very confusing to consumers. And don’t forget, Zillow is venturing into real estate sales with Instant Offers:
Zillow’s letter mentions fair use, but argues it does not apply to McMansion Hell. When asked about this, (Zillow spokesperson Emily) Heffter pointed to the agreements Zillow has with the providers of its photos, but did not elaborate on why the company believes Wagner’s blog would not qualify as fair use.
The letter also claims McMansion Hell might be violating the Computer Fraud and Abuse Act (CFAA) and state laws prohibiting “interference with Zillow’s business expectations and interests.”
Could it be that some agents are complaining to Zillow when their listings are the subject of ridicule? Is this an attempt for Zillow to be protective of those photos? Still, the first responses from the legal world is that Zillow is standing on shaky legal ground:
Ken White, an attorney who writes for the legal blog Popehat, agreed that McMansion Hell would qualify as fair use. Because Zillow and McMansion Hell aren’t competing businesses, he said, “all of the fair use factors are in the bloggers’ favor.”
Zillow appears to have been trying to “make a satirical blogger shut up rather than face the costs of vexatious litigation,” White told BuzzFeed News. He added that the reputations of both the company and the attorney who sent the letter “will take a hit, and they deserve it.”
“I think it’s plainly fair use,” White said, “and that Zillow’s threats are meritless and frankly thuggish.”
If you are in the business of selling real estate, you should NEVER limit the circulation of home photos. The first thing that came to my mind when I read about this case: why would a sane person want to stop circulating stories and photos of homes? That’s what helps sell them, even if the publicity is not super positive. One man’s dank castle may be another’s paradise. You all know the story of a well-known local realtor who was selling the then Hicks-Crespi estate but refused to let anyone use or circulate his photos of said estate. I had to resort to taking a photo of the magazine cover of a private jet magazine, where the home had been featured. He had the listing for a couple of years until Allie Beth Allman took over, put photos of the home in MLS and grabbed as much publicity as she could grab lickety split. Voila: the $100 million home sold in a year.
As for the *book we mentioned earlier: Wagner says she is making an e-book that will included licensed photos even as she is seeking legal advice. We wish her the best of luck.