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Three Important Copyright Cases in the Ninth Circuit

By August 26, 2022No Comments

By Frank Gallagher, NANPA Marketing, Communications & Blog Coordinator

Advocating for the rights of photographers is an important part of what NANPA does. On behalf of nature photographers, NANPA follows legislation and cases in the courts that can affect your intellectual property rights. And, periodically, we post some updates about legal decisions making news. Here are three cases whose outcomes can have profound impacts on copyright protections. Thanks to NANPA’s Advocacy Committee and Sean Fitzgerald for passing this information along.

Image by Pete Linforth, Pixabay license.

Zillow v. VHT

NANPA joined the National Press Photographers Association, Professional Photographers of America and several other organizations in an amicus brief filed in the case of Zillow v. VHT being heard in the Ninth Circuit. VHT, a real estate photography company, sued Zillow, an online real estate marketplace, for copyright infringement claiming that Zillow’s use of the photos exceeded the scope and terms of the license. Zillow was found to have overstepped the license in some cases but not others. One of the core issues at stake here is whether a collection of 2,700 photographs should be considered one work, subject to one award of statutory damages, or 2,700 distinct works, subject to 2,700 statutory damages awards. The district court has twice found that it is 2,700 distinct works, each entitled to distinct damage awards. Zillow has appealed. Creator groups are continuing to argue that each infringement should be subject to a separate award. The outcome will have far reaching effects for photographers’ and other creatives’ rights.

Hunley v. Instagram

NANPA and six other organizations joined in another amicus brief in the Ninth Circuit in the case of Hunley v. Instagram. It involves an issue where the 9th Circuit is the only circuit to require that a physical copy of an infringed work be held on an alleged infringer’s server (e.g. the “server test”) in order for that defendant to be sued for infringement. This is problematic as it would allow third parties to embed Instagram images on their own websites without consequence since the allegedly infringed images are not stored on their own servers. Decisions by other circuit courts and by the U.S. Supreme court have rejected this interpretation but, until the Ninth Circuit changes its view, where you are determines whether embedding images infringes on copyright or not. We’ve previously covered cases involving Instagram and embedded images here and here.

McGucken v. Pub Ocean Ltd.

Finally, the Ninth Circuit ruled in favor of Eliott McGucken and overturned a judgement in favor of Pub Ocean, Ltd. In this case, Pub Ocean used a series of McGucken’s photos in an online article. McGucken had photographed an ephemeral lake in Death Valley following heavy rains. Several newspapers, magazines and websites used his photos, with his permission, in stories about the unusual phenomena. Pub Ocean, a UK-based digital publisher and owner of several websites, used twelve of McGucken’s photos without his permission. The court determined that Pub Ocean’s use of McGucken’s photos failed on all four factors of Fair Use and overruled the lower court’s decision. (McGucken was also the plaintiff in McGucken v. Newsweek about embedding, without his permission, photos of the ephemeral lake he’d posted to his Instagram account.)

Frank Gallagher is a landscape and nature photographer based in the Washington, DC, area who specializes in providing a wide range of photograph services to nonprofit organizations. He serves as NANPA’s Interim Marketing and Communications Coordinator and manages NANPA’s blog. He can be found online at or on Instagram @frankgallagherfoto.