When Kate Wagner started McMansion Hell—a popular blog that intelligently (and hilariously) dissects the modern architectural oddity that is the McMansion—she wasn’t just in it for the snark. As she explained in an episode of the podcast 99% Invisible, the blog is primarily a means for her, a student of architecture, to demonstrate the un-sustainability of such garishness. McMansions are often built with aesthetics in mind, with little thought given to the functional and fortifying aspects of architecture.
Whatever the case, the real estate website Zillow just served Wagner with a cease-and-desist letter. Wagner pulls all of her photos from Zillow, posting them with proper credit and a full legal disclaimer, and Zillow says, since they don’t own the photos, they’re liable for Wagner’s actions.
Soon after, Wagner released a statement saying she was seeking legal counsel and that “there have been no major issues regarding copyright complaints regarding the blog until this moment.”
Since then, Wagner’s secured the Electronic Frontier Foundation, a nonprofit that works to defend issues of digital free speech, as counsel.
Buzzfeed spoke to a few lawyers about the situation, all of whom agreed that Zillow’s case wouldn’t hold up in court. “Zillow’s suggestion that it’s a CFAA violation to take pictures from their public website is very weak,” says Orin Kerr, a law professor at George Washington University. Another lawyer, Ken White, says that Wagner’s use of the photos qualifies as fair use, a law that permits copyrighted material to, in some circumstances, be used for means of criticism, satire, or research without the need for permission. White further describes Zillow’s threats as “meritless and frankly thuggish.”
Wagner took the site down temporarily to make an archive, but says it will be back up by Tuesday evening. And while it seems she will most likely come out of this unscathed, the situation serves as yet another example of the fluid interpretations we have of free speech as it exists within digital spaces. As interwoven as it has become in our day-to-day lives, the internet is nevertheless comprised of a great deal of gray space.