Frankly I think this is a textbook case of Fair Use by a combination of parody and commentary, and it seems as though it would be trivial to take Zillow to task for attempting to enforce copyright law on property it doesn't own the rights to.
> She doesn't need to find other sources. Fair use means she can do what she's doing and Zillow should shut up, other than maybe offering an apology.
That sure sounds like an assertion of what a court or jury would actually decide, and it's far too strong. (I am a lawyer, and there's almost never a justification for being this absolute.)
As for Zillow not owning the rights, it's entirely possible that it has some licensing arrangement with the rights holders that empowers it to bring suit. I have no idea, and neither does the author.
Right now, we're in the court of public opinion, and that is definitely appropriate language for that particular court... The court of law will come later, if ever.
And in this kind of business, most of damages are decided in the court of public opinion anyway, not the other one.
It's obviously an opinion piece, the way it's written does not communicate that it's attempting to be informative other than collecting a number of other more informative articles, and offering the author's viewpoint. Contrary to what some on here believe, it is alright to both bring information forth about a topic and express an opinion on it, and personally I find that type of content much more engaging than exercising false equivalency nonsense and making a stupid company's stupid position look less stupid in the name of "fairness."
> As for Zillow not owning the rights
If it owns the rights or is licensed to exercise the rights, that doesn't change the fact that it has no case. That was my point.
MST3K has to clear copyrights for the original films, even though they "mark up" those originals in the same way that McMH does. RiffTrax did not have to clear rights with anyone, at the cost of some customer convenience.
I don't know for certain whether MST3K licensed things because they had to, or because they didn't want to be sued to Hell by film catalog rights-holders. It certainly seems like ridicule, commentary, and parody to me. I don't think it matters all that much whether anyone makes money from it or not. A professor can fairly use photos for educational purposes in a class where all the students pay tuition, right?
As a potential juror, I am prejudicially biased that McMH's use is fair use. If I were a judge looking for a test, I think I would ask "Is it sufficiently transformative that this use does not compete with the original?" For MST3K, you're making motion picture entertainment from existing motion pictures. Watching the MST3K version of a work competes with watching the original. So MST3K is not fair use. But reading McMH does not compete with browsing those real estate listings. So it's probably fair use.
No facet of the fair use defense is based on the fact that one is exploiting a market for the work that the rightsholder currently isn't. On the contrary, the fact that one is exploiting any market at all with the work is a strike against any fair use defense.
Attempting to argue that to a judge that does not employ the same boundary test is therefore likely to fail.
I get these types of responses all the time, whenever someone detects that I am crossing onto foreign turf. The law does not belong exclusively to legislators, judges, and lawyers. I am entitled to have an opinion that conflicts with established precedents. And as many of us are painfully aware, the law is sometimes an ass.
This person is co-opting the images, but not to sell the homes or defame the work of the photographer, but to mock the (ugly) style of the homes. There is no impact to the rights holders or even the people using the photos by virtue of this silly little blog existing.