Zillow Gone Wild Sued by Real Estate Photographer

Zillow Gone Wild is a popular Instagram account featuring eccentric homes featured on the real estate listing website. Created by Samir Mezrahi, it has almost 2 million followers on Instagram alone and a strong presence on other media platforms, including Substack, X (formerly Twitter) and Facebook.

It was turned into a television series on HGTV in May of this year, which is still in its first season.

However, the phenomenon is now facing a new challenge: A copyright infringement lawsuit.

According to an article by Chris Stokel-Walker at Fast Company, real estate photographer Jennifer Bouma has filed a lawsuit against Zillow Gone Wild and its parent company, Kale Salad Inc.

The lawsuit alleges copyright infringement by the company and is seeking damages up to $150,000 for each photo, the statutory maximum under the law.

However, the damages are likely not the biggest issue. The lawsuit threatens the business model of Zillow Gone Wild and other online accounts like it.

Background of the Case

According to the complaint, in September 2021, Bouma took several photos of a castle-themed house in Monroe, Washington. In January 2022, the registered those images with the United States Copyright Office.

In February 2022, Zillow Gone Wild posted an entry about the house on their various platforms. Those entries included two photos that Bouma took. The first photo was of a dragon statue, and the second was of a library decorated with suits of armor.

After that, Bouma claims to have become aware of the infringement in April 2022 and to have contacted Zillow Gone Wild. Zillow Gone Wild then removed the images from all their platforms.

However, according to Bouma, they have not been able to negotiate a license for the past infringement.

As such, she filed the lawsuit in the Eastern District of New York. She seeks statutory damages, attorneys’ fees, and an injunction barring future infringement.

It’s a remarkably straightforward lawsuit but one that raises some complex issues that have experts divided.

The Question of Fair Use

There is little question that Zillow Gone Wild copied and republished the photographs across multiple platforms. Instead, the question centers around whether the use of the images constitutes fair use.

That is a difficult question.

To be clear, fair use is often tricky, even on the best of days. The factors that govern fair use are deliberately vague, and it is difficult to predict what a judge or jury might decide in a particular case.

However, these aren’t the best of days. The May 2023 Warhol ruling represented a major shakeup for fair use, and we are still seeing the fallout. As such, it’s easy to see why the experts Fast Company reached out to were divided.

That said, I feel that the facts of the case lean against Zillow Gone Wild. While it is true that they were using the photograph for commentary or criticism, that commentary and criticism was of the house, not the image.

Zillow Gone Wild and Bouma used the photo for the same reason: To represent the house.

We’ve seen a recent case similar to this. In February 2024, The Fourth Circuit Court of Appeals ruled against the Independent Journal Review (IJR) in their fair use arguments. The IJR had used a photo of musician Ted Nugent for a list article. The photographer, Larry Philpot, claimed it was a copyright infringement.

The district court ruled that the use was fair use as the IJR placed the photo in a different context. However, the Appeals Court overturned that decision, finding that the use was the same, namely to represent Ted Nugent.

While this is a different circuit (fourth vs. second), the court will likely adopt a similar logic when addressing this case, especially in the wake of Warhol.

No Good Way Out

Bouma’s attorney, David C. Deal, has said that he is eager to litigate the case on fair use. He notes that it is a big risk for Zillow Gone Wild because, if they lose, he has other photographers in a very similar position who can file their own cases.

Because of this, he thinks that Mezrahi will try to settle the case. Settlement, to be clear, is the most common outcome of litigation. However, that carries its own risks for Mezrahi. If Deal is correct and many other photographers are waiting in the wings, they could just as easily move forward with their cases seeking similar settlements.

Litigating the case carries risks and costs, and settling it carries risks and costs. There’s no simple solution here for Zillow Gone Wild because its entire presence is based on using the work of real estate photographers without permission.

Even if they are able to litigate and win a favorable fair use ruling, that will likely come at a very high price tag. Without outside help, this case could wind up being very expensive for Zillow Gone Wild.

In short there is no easy way out that gives them carte blanche to continue business as usual. It’s either roll the dice by fighting or settle the case, knowing that others will likely follow suit.

Bottom Line

In the end, fair use is deeply complicated and nuanced. We have to take it on a case-by-case basis. Two cases with seemingly similar facts can generate very different outcomes.

The unpredictable nature of fair use makes the outcome of this case difficult to call. That said, I believe the fair use factors and the recent cases favor Bouma. While that’s no guarantee of victory, I do think that Zillow Gone Wild and Mezrahi will have an uphill battle.

Ultimately, this isn’t a case about two photographs. It’s a case about an entire business model. Zillow Gone Wild has made a huge name for itself by republishing photographs without permission. In that light, it’s surprising that this hasn’t happened sooner.

Still, the ultimate question is if that model is legal. The implications of that will go beyond Zillow Gone Wild or its various accounts. It will have a broad impact on social media as a whole.

For that reason alone, this is an important case to watch.

Bouma-v.-Kale-Salad