IP Law Daily, COPYRIGHT—E.D.N.Y.: No free reign for Zillow Goes Wild, (Sep 17, 2025)

By Matthew Hersh, J.D.

The “Zillow-surfing” website loses an early round on the fair use defense.

The owner and operator of a website that allegedly purloined two real estate photographs in order to satirize the unusual properties they illustrated did not make a fair use of the photographs because the website commented on the content of the photographs rather than the photographs themselves, the federal court for Brooklyn has held. But the court, while rejecting the website operator’s motion to dismiss, nonetheless gave the website operator an early victory by ruling out statutory damages or attorney fees in the case (Bouma v. Kale Salad, Inc., No. 1:24-cv-05250-OEM-RML (E.D.N.Y. Sept. 15, 2025)).

The target of the lawsuit is Zillow Gone Wild, a website that features a selection of notable real estate listings on the Zillow platform. The site, which bills itself as “THE place to catch the most interesting homes across America,” is owned and operated by a New York corporation named Kale Salad, Inc. The website is one of many to monetize the pandemic-era pastime, known as “Zillow surfing,” in which home-bound real estate junkies check out Zillow listings with “no intention” of actually buying. (Saturday Night Live parodied the phenomenon several years ago).

But the website was no joke to Jennifer Bouma, a commercial real estate photographer from Washington State. The photographer, claiming to have found two of her photographs uploaded without her permission, brought a lawsuit against the website operator last year. The concise seven-page complaint alleged a single count of copyright infringement and sought actual damages, profits, statutory damages, and attorney fees.

The website operator moved to dismiss the complaint on fair use grounds, leading to this opinion.

Fair use. The court easily found that the website operator did not make a fair use of the photographs. The website operator claimed that it made a transformative use of the photographs because it used them to comment on, and satirize, the “extreme homes” featured on the site. But But that argument “misapplies the focus of the transformative use inquiry,” the court found, because the website did not comment on the photographs themselves but rather the content within them. Thus, the court noted, the website “confuses the situation in which the photograph is the story and the scenario present here, in which the contents of the photograph are of some public interest.” Moreover, the court noted, the website did not add any value to the photographs because it simply “copied and pasted them” without any alteration.

Nor could the website operator escape liability, at least at this stage, by its contention that the website did not generate revenues. To be sure, the court noted, as the use of the photographs was not transformative, “the role of commercialism as a sub-factor becomes more significant in the fair use analysis.” Nonetheless, the court observed, the photographer had plausibly alleged that the website operator “benefited from its use of the photographs by gaining more traction on its website and by the fact that other websites reposted the photographs” with hotlinks to the site. At the motion to dismiss stage, the court noted, it was not possible to gauge the financial implications of the defendants’ use of the copyrighted materials, “but the possibility of commercial advantage cannot be excluded at this point.”

None of the other fair use factors changed the outcome. Most importantly, the court noted, the website operator could not show that its reproduction of the photographs did not cause market harm. To be sure, the court noted, the photographer did not plead facts sufficient to show that there was an active market for her photographs. But that did not matter at this stage because, in light of the fact that the use was non-transformative and commercial, a presumption of market harm applied. “In light of this presumption and in the absence of countervailing arguments,” the court noted, the website operator “has not met its burden in proving this factor.” The fair use defense would fail.

Statutory damages and attorney fees. But while the website operator could not escape liability on the fair use defense, it will not be forced to pay statutory damages or attorney fees if it loses the lawsuit, Notably, the photographer waived her right to such damages when she failed to respond to the website operator’s motion on the issue. But it did not matter in any event, the court noted, because of the Copyright Act’s “bright-line rule that precludes recovery of statutory damages and attorneys’ fees where the first act of infringement occurred prior to the work's copyright registration.” Here, the photographer alleged that she registered the photographs in 2022, but that the infringement began in 2021. Thus, even leaving aside the waiver issue, she was “precluded from recovering statutory damages and attorney fees (as opposed to actual damages and infringer’s profits)” for the infringement.

The Case is No. 1:24-cv-05250-OEM-RML.

Judge: Merchant, O.

Attorneys: David C. Deal (Law Office of David C. Deal, P.L.C.) for Jennifer Bouma. Brian Pete (Lewis Brisbois Bisgaard & Smith LLP) for Kale Salad, Inc. d/b/a Zillow Gone Wild.

Companies: Kale Salad, Inc. d/b/a Zillow Gone Wild

Cases: Copyright TechnologyInternet NewYorkNews