Photographer says big local Coldwell Banker brokerage wrongly shared photos with Zillow, others

By Dana Herra | Aug 31, 2016

A photographer has sued one of the state’s largest real estate groups, claiming at least two of its agents violated copyright law by sharing his photos for use by Zillow and other online real estate-related sites.

Photographer Michael Boatman, of East Peoria, filed suit in Chicago federal court against Joliet-based Coldwell Banker Honig-Bell. In the suit, he claims real and contributory copyright infringement, breach of contract and violation of the Digital Millennium Copyright Act. He is requesting that the company be permanently prohibited from using or sharing his photos, be forced to return or destroy any copies it has of the digital photo files, and pay damages and court costs.

Boatman claims he took numerous photos of nine homes for sale last year for Honig-Bell agents. The photos were registered with the U.S. Register of Copyrights and the copyright information embedded in the digital photo files, according to the lawsuit. When Boatman provided the photos to the agents for use in marketing the properties, he granted a nontransferable limited license that expired when the properties were taken off the market.

Boatman claims he sent his standard usage terms and copyright language to the real estate company before taking the photos and again upon invoicing them for the work.

The lawsuit says the real estate agents ran afoul of the copyright agreement when they distributed the photos to real estate website Zillow without his consent. Even though Honig-Bell’s right to use the photos ended when the properties sold, when the lawsuit was filed Aug. 26, a listing for a property sold on June 10, 2015, was still active on the site and still displayed Boatman’s images. The lawsuit claims other sold properties are also displayed on the site using Boatman’s images.

The lawsuit claims Zillow was only one of multiple third parties that received the images in violation of the limited license. 

The suit claims Honig-Bell also violated the terms of its license by distributing the images for reasons other than marketing properties for sale. As an example, the suit includes a pop-up ad for Quicken Loans’ Rocket Mortgage product, which allegedly uses one of Boatman’s licensed images as a backdrop. Another photo is allegedly displayed on “Zillow Digs,” an independent section of the Zillow website that displays groups of photos exhibiting home design elements and pairs them with ads from vendors who sell similar items.

In addition, Boatman claims the copyright information embedded in the digital files was removed. In some cases, he says, it appears the information was replaced; as an example the lawsuit included images watermarked with a logo for the Peoria Area Association of Realtors. Boatman says he did not authorize the alteration of the image or transfer ownership of the photo to the association.

Boatman claims he spoke to a Honig-Bell agent last summer about the publication of the photos on third-party sites and she agreed that the use violated the limited license. But Boatman said Honig-Bell did not do anything to resolve the problem. He says a cease-and-desist letter to the company from an intellectual property attorney also failed to correct the violations.

Zillow is not named as a party in the action, but a Zillow spokeswoman issued a statement in response to the legal action, saying Zillow "respects and enforces copyright protections and permissions across our platforms, and that’s why we ask agents and brokers to confirm they have rights to the photos they are putting on Zillow.

"We also work to ensure our listings are up to date by refreshing feeds as often as every 15 minutes and providing tools to make it easy for agents to change the status of a listing," the spokeswoman said in an emailed statement.

Boatman is represented by Matthew G. McAndrews and Kyle D. Wallenberg, of the firm of Niro McAndrews LLC, of Chicago.

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