The United States is a great big country, and a whole bunch of it is filled with great big houses. They’re called McMansions, and since 2016, the foremost chronicler of these houses has been the blog McMansion Hell.
Kate Wagner, a 23-year-old writer and grad student, runs the blog, which used the tagline “If you love to hate the ugly houses that became ubiquitous before (and after) the bubble burst you’ve come to the right place.”
McMansion Hell grew in popularity in recent months by mixing sarcasm, internet lingo, and erudition into commentary superimposed onto real estate listing photos. It has a whole section of homes that are “Certified Dank™” — the best of the absolute worst.
But on Monday, Zillow, the biggest and most influential real estate website on the internet, sent Wagner a cease-and-desist order, leaving the future of her site as imperiled as the value of a 5,000-square-foot home outside Las Vegas in 2008.
Wagner posted a screenshot of Zillow’s cease-and-desist letter on Twitter Monday afternoon. In it, Zillow accused Wagner of reproducing images from its website and claimed that she was infringing on the “rights of the copyright holder of the images.”
The letter concluded with a demand that Wagner immediately stop using images from Zillow and delete all of the images that she had obtained from the site.
Zillow spokesperson Emily Heffter told BuzzFeed News that the company has “particular rights about how other people use photos” posted on its website. Zillow receives images from hundreds of providers across the US, but one constant in all of its provider agreements is that “we can’t let other people use them,” Heffter said.
“We have to enforce that,” she said. “It’s just our responsibility.”
The cease-and-desist letter was not a response to the type of content or commentary that Wagner was offering, she said.
Heffter went on to explain that Zillow does not own the photos it posts on its site and is not legally allowed to let others use them. If the owners of the photos learned that “someone was taking photos from our site and using them in their entirety,” Zillow “could be liable,” Heffter added.
“It’s an unfortunate situation and we hope it finds a simple solution,” she said.
Zillow sent the letter the same day the Washington Post published a story on the return of McMansions in which Wagner offered commentary as an expert on the topic.
By Monday afternoon, McMansion Hell had been taken down.
Wagner did not respond to BuzzFeed News requests for comment, but she tweeted that she was “going off line for a while” and that “this blog is my entire livelihood, if it goes, I lose absolutely everything.”
Heffter said that Zillow never ordered Wagner to take down the entire blog and that “it’s unfortunate she did.”
By Tuesday, lawyers from the Electronic Frontier Foundation (EFF) were representing Wagner. In a statement, attorney Daniel Nazer said EFF would be “sending a detailed response to all of Zillow’s contentions soon.”
“We hope that Zillow comes to appreciate that it made a mistake and withdraws its threat,” Nazer said.
He added in a phone call that he learned of the case after it “blew up on the net” and people repeatedly tagged him in tweets about it.
“It was definitely something that spoke to the community that enjoys free speech on the internet,” Nazer told BuzzFeed News.
Fans were dismayed by the disappearance of the site, which in addition to epic McMansion takedowns also included lengthy posts about architectural history, theory, and terminology.
Zillow’s letter mentions fair use, but argues it does not apply to McMansion Hell. When asked about this, Heffter pointed to the agreements Zillow has with the providers of its photos, but did not elaborate on why the company believes Wagner’s blog would not qualify as fair use.
The letter also claims McMansion Hell might be violating the Computer Fraud and Abuse Act (CFAA) and state laws prohibiting “interference with Zillow’s business expectations and interests.”
Nazer declined Tuesday to layout EFF’s arguments, saying his firm was still working on its response to Zillow. However, other attorneys who weren’t involved in the case were skeptical the real estate website could force Wagner to take down photos.
“Zillow’s suggestion that it’s a CFAA violation to take pictures from their public website is very weak,” Orin Kerr, a law professor at George Washington University, said in an email. “That’s probably why they made it only in passing.”
Jeff Becker, an entertainment and intellectual property lawyer, said that fair use arguments rely on whether or not a piece of media is transformative or offers commentary on the original work — in this case real estate photos. He said the “satire-parody issue may be present” in the case of McMansion Hell, and that the blog “very well could fall within fair use.”
Zillow’s argument “would be a very hard case to win in court,” Becker added.
And Ken White, an attorney who writes for the legal blog Popehat, agreed that McMansion Hell would qualify as fair use. Because Zillow and McMansion Hell aren’t competing businesses, he said, “all of the fair use factors are in the bloggers’ favor.”
Zillow appears to have been trying to “make a satirical blogger shut up rather than face the costs of vexatious litigation,” White told BuzzFeed News. He added that the reputations of both the company and the attorney who sent the letter “will take a hit, and they deserve it.”
“I think it’s plainly fair use,” White said, “and that Zillow’s threats are meritless and frankly thuggish.”