Location, location, location— that’s the mantra to describe what matters in real estate, whether for frenzied buyers in overheated markets or posh agents pushing hot properties. But beyond a sizzling, just-so-wonderful address, another set of digits and data in contemporary real estate has just come under appellate court review. And CoreLogic Inc. has dashed to a perfect photo finish on these numbers at the U.S. Court of Appeals for the Ninth Circuit.
There, appellate judges affirmed a lower court’s grant of summary judgement in a case involving photographers and their complaints about CoreLogic’s removal of embedded copyright management information from their photographs posted online of real estate for sale.
The shooters said that erasing that metadata violated 17 U.S.C. § 1202(b)(1)-(3).
Let’s bring this case into sharper focus: Agents often hire photographers to create alluring portraits of houses for sale. Some of these photos are embedded with metadata that can only be viewed with specific computer software. This feature is automatic and describes key photographic matters such as the camera shutter speed, light sensitivity and location where a photo was taken.
CoreLogic develops and provides software like Matrix, InnoVia, Tempo 4, and Tempo 5. This software resizes images when necessary to accommodate large files, including photos, so they load and display faster and easier, say on websites. But the programs also unintentionally delete those invisible metadata marks.
After receiving shooters’ initial gripes about this, CoreLogic modified its programs to ensure automatically generated metadata would not be erased. The photographers’ lawsuit continued, since the programs still removed manually entered metadata.
The photographers further argued in their suit that, when metadata was excised, this erased a way for them and others to track and prove infringements by users on their copyrights.
Let’s look, first, at a key part of the invoked statute:
17 U.S.C. § 1202(b)(1) provides that that no person shall remove or alter any copyright management information…. Knowing, or … having reasonable grounds to know that it will induce, enable, facilitate, or conceal an infringement of any copyright.
The appellate judges concluded that by bringing a Section 1202(b)(1) claim, a plaintiff must provide evidence that future infringement is likely as a result of the removal or alteration of the metadata. Specifically, the court emphasized the lack of any detailed evidence that removal of metadata will impair future infringement policing.
This was yet another set back for shooters relying on claims involving photos’ metadata. U.S. District Judge Claude M. Hilton, presiding in Alexandria, Va., also shot down photographer Russell Brammer’s suit against Violent Hues Productions, organizers of a Northern Virginia film festival.
The company put up a Brammer time-lapse photo of the Adams Morgan neighborhood in the nation’s capital, having seen the widely posted and uncredited shot and believing it unprotected by copyright. But Brammer made both an infringement claim and contested how he said Violent Hues, in its posting, erased copyright metadata embedded in the contested shot.
Hilton found that Brammer had failed to pursue his metadata claim and that Violent Hues had made fair use of his photo by using it in transformational fashion, switching from the shooter’s original promotional and expressive use to a means of providing public information about the area near the film fest.
A tip of the hat, by the way, to Loeb and Loeb for making the Hilton ruling available online, and for its analysis of the case.