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Back in July, we shared a story about Peoria photographer Mike Boatman, who had filed a lawsuit against his local MLS. There have been some recent developments and Mike wanted to share an update.
Below, you will find Mike’s most recent update, along with his previous update. You can also read his original article about this topic here. Here is what Mike had to say:
As I promised, I am posting all public documents to PFRE as a demonstration of a federal copyright litigation in real-time.Mike Boatman
Within a very short period of time PAAR filed a second motion to dismiss. This one dismisses the first amended complaint.
You can read it here.
We had two weeks to file a response you can read here.
At this point it’s now in the hands of the judge to make a ruling.
As part of their defense here are some of the points from the motion to dismiss.
Of course, these are only my opinions you should read PAAR’s motion to dismiss yourself and then read our opposition to the MTD.
Background on motions:
Following the motion to dismiss, the plaintiff (me) has two weeks to write a response, after which the defendant would get to write a closing response. Then it would go to the judge for a decision which could take anywhere from a day to 18 months.
On Monday, September 29, 2020 we filed a response (11-0 – Response to MTD.pdf) announcing to the court that we would be filing an amended complaint. The amended complaint was also filed at the same time. (12-0 -- Amended Complaint.pdf) Just like the extension request, the first amended complaint is granted automatically.
By filing the amended complaint, we were able to address all the points in their motion to dismiss, making their motion moot.
We felt that their motion would have been rejected. However, if we had filed a response, then they would have been able to respond to it, and it would have been put in the judge’s hands to decide.
By filing the first amended complaint, we were better able to focus the complaint to the exact infringement and render their defense moot.
This resets the clock. PAAR now has another 30 days to either file another motion or answer the complaint.
As I have stated before, the wheels of justice turn slowly.
Typically, the litigation of a copyright infringement case runs about two years. It is a high-stakes chess game built on excruciatingly tedious factual evidence and word-smithed presentation. Words matter. Attention to detail as you are creating your archives, business structure, and procedures plays a crucial role in whether or not you will successfully recover stolen usage fees.
Photographers, our value is far greater than what is being acknowledged in the industry of real estate.
For most of my advertising career, the value of my images in dollars and cents for my clients was measured in the millions. In the past five years, I’ve noticed incredible technical and creative growth in the quality of imagery being created for the real estate community. But the problem as I see it is that everyone except the photographer recognizes the value of imagery.
In 2017, a monumental change occurred leveraging the entire inventory of past photography for the financial benefit of one aggregator. This aggregator followed the example of Zillow’s ongoing usage of imagery and then expanded on it. Other corporations like Better Homes & Gardens, Redfin, and countless others are now entering the market to leverage this bonanza of imagery. Your imagery.
As you can see from the first amended complaint, this is only possible because of usage rights that the MLS granted without legal authority to do so. My MLS, PAAR, is not an isolated situation.
Zillow has distributed images into the general advertising market. This is an absolute fact you can see for yourself here.
Look at the accreditations under the photographs. And this is not the only time!
Note 1: Photographers, the cities in which those photographs came from is also part of the accreditation hyperlinks. If you shoot real estate in those cities, you may want to check to see if your photograph is being used in Bob Vila's blog post.
Note 2: Bob Vila is an honorable individual who contacted me and acquired a license to use my image in this post. I’m sure that he solicited licenses for all of the images used in the post. Judging from the accreditations, he was granted those licenses by ZILLOW.
Given the terms of usage by Better Homes & Gardens real estate, how long do you think it is going to be before your images show up in the Better Homes & Gardens magazine?
Better Homes and Gardens Real Estate
You represent and warrant that you:
(i) are entitled to grant the rights and licenses to your Content under these Terms and none of your Content will infringe any party's Intellectual Property Rights or violate Applicable Law;
You grant to the us a non-exclusive, sublicensable, transferable, perpetual, irrevocable, royalty-free, worldwide license to use, develop, transmit, distribute, modify, reproduce, publicly display, and create derivative works of any of your Content to provide, develop, maintain, support, and improve the Service and the Affiliated Entities' services.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
As you can see by PAAR’s filing of motion to dismiss they don’t have a defense. If they had a defense, they would have answered the complaint. They are relying on technicalities as their defense at this moment. Initially, the technicality they were hoping for was the statute of limitations. That failed – which is confirmed by them not filing the motion to dismiss based on the statute of limitations.
Now they’ve graduated to volitional conduct, which is how Zillow beat VHT on all of the images with the exception of the Zillow Diggs images.
I cannot overemphasize how a proper archive system mindful of chain of evidence for the federal court will play a gigantic role in whether or not you are successful on recovering the full amount of usage fees currently being stolen from you. But none of that is possible if you do not register copyright!