FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VHT, INC., a Delaware corporation,

Plaintiff-Appellee/

Cross-Appellant,

v.

ZILLOW GROUP, INC., a Washington 

corporation; ZILLOW, INC., a 

Washington corporation,

Defendants-Appellants/

Cross-Appellees.

Nos. 17-35587

 17-35588

D.C. No.

2:15-cv-01096-

JLR 

OPINION

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, Senior District Judge, Presiding

Argued and Submitted August 28, 2018

Seattle, Washington

Filed March 15, 2019

Before: M. Margaret McKeown, William A. Fletcher, and 

Ronald M. Gould, Circuit Judges.

Opinion by Judge McKeown
2 VHT, INC. V. ZILLOW GROUP

SUMMARY*

Copyright Law

The panel affirmed in part and reversed in part the 

district court’s judgment after a jury trial and remanded in a

copyright infringement action brought by VHT, Inc., a real 

estate photography studio, against Zillow Group, Inc., and 

Zillow, Inc., an online real estate marketplace.

VHT alleged that Zillow’s use of photos on the “Listing 

Platform” and “Digs” parts of its website exceeded the scope 

of VHT’s licenses to brokers, agents, and listing services that 

provided those photos to Zillow. The district court granted 

partial summary judgment on a limited set of claims. The 

jury found in favor of VHT on most remaining claims, 

awarding over $8.27 million in damages. The district court 

partially granted Zillow’s post-trial motion for judgment 

notwithstanding the verdict, reversing in part the jury verdict 

and reducing total damages to approximately $4 million.

The panel affirmed the district court’s summary 

judgment in favor of Zillow on direct infringement of the 

Listing Platform photos. The panel held that VHT failed to 

establish that Zillow engaged in volitional conduct by 

exercising control over the content of the Listing Platform.

With respect to direct liability on the Digs photos, the 

panel affirmed the district court’s grant in favor of Zillow of 

judgment notwithstanding the verdict on 22,109 nondisplayed photos and 2,093 displayed but not searchable 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
VHT, INC. V. ZILLOW GROUP 3

photos. The panel held that VHT did not present substantial 

evidence that Zillow, through the Digs platform, directly 

infringed its display, reproduction, or adaption rights.

The panel upheld summary judgment in favor of VHT 

on 3,921 displayed, searchable Digs photos. The panel held 

that fair use did not absolve Zillow of liability because 

Zillow’s tagging of the photos for searchable functionality 

was not a transformative fair use.

The panel affirmed the district court’s grant in favor of 

Zillow of judgment notwithstanding the verdict on 

secondary liability, both contributory and vicarious, on the 

Digs photos.

As to damages, the panel remanded consideration of the 

issue whether VHT’s photos used on Digs were part of a 

compilation or were individual photos.

The panel reversed the district court’s denial of judgment 

notwithstanding the verdict on the issue of willfulness and 

vacated the jury’s finding on willfulness. The panel 

concluded that substantial evidence did not show that Zillow 

was “actually aware” of its infringing activity, nor that 

Zillow recklessly disregarded or willfully blinded itself to its 

infringement.

COUNSEL

Ian B. Crosby (argued), Edgar G. Sargent, Genevieve Vose 

Wallace, and Jenna G. Farleigh, Susman Godfrey LLP, 

Seattle, Washington, for Defendants-Appellants/CrossAppellees.
4 VHT, INC. V. ZILLOW GROUP

Stephen M. Rummage (argued), Marcia B. Paul, Jonathan 

M. Lloyd, James E. Howard, and Max B. Hensley, Davis 

Wright Tremaine LLP, Seattle, Washington, for PlaintiffAppellee/Cross-Appellant.

Keith Kupferschmid and Terry Hart, Copyright Alliance, 

Washington, D.C.; Eleanor M. Lackman and Lindsay W. 

Bowen, Cowan, DeBaets, Abrahams & Sheppard LLP, New 

York, New York; for Amicus Curiae Copyright Alliance.

Alicia Calzada, Alicia Wagner Calzada, PLLC, San 

Antonio, Texas, for Amici Curiae The American Society of 

Media Photographers, Inc., Digital Media Licensing 

Association, Inc., Graphic Artist Guild, Inc., and National 

Press Photographers Association, Inc.

Thomas G. Hentoff and Chanakya A. Sethi, Williams & 

Connolly LLP, Washington D. C., for Amici Curiae Disney 

Enterprises, Inc., Twentieth Century Fox Film Corporation, 

and Recording Industry Association of America, Inc.

Mitchell L. Stoltz, Electronic Frontier Foundation, San 

Francisco, California, for Amicus Curiae Electronic Frontier 

Foundation.

Brian M. Willen, Wilson Sonsini Goodrich & Rosati, P.C., 

New York, New York; Ryan T. O’Hollaren, Wilson Sonsini 

Goodrich & Rosati, P.C., Palo Alto, California; for Amici 

Curiae Internet Association and Computer & 

Communications Industry Association.
VHT, INC. V. ZILLOW GROUP 5

OPINION

McKEOWN, Circuit Judge:

Zillow, an online real estate marketplace, has become a 

popular website for homeowners and others to check 

estimated valuations of their property, look for houses and 

condominiums for sale and rent, and see photographs of a 

wide range of properties. Thousands of those copyrighted 

photos come from VHT, the largest professional real estate 

photography studio in the country.

The copyright claims on appeal concern Zillow’s use of 

VHT’s photos on two parts of Zillow’s website: the “Listing 

Platform” and “Digs.” The Listing Platform is the core of 

the website, featuring photos and information about real 

estate properties, both on and off the market. Zillow claims 

that the site includes “most homes in America.” Digs 

features photos of artfully-designed rooms in some of those 

properties and is geared toward home improvement and 

remodeling. Zillow tags photos on the Listing Platform so 

that Digs users can search the database by various criteria, 

like room type, style, cost, and color. 

Real estate brokers, listing services, and agents hire VHT 

to take professional photos of new listings for marketing 

purposes. A VHT photographer takes the photos and sends 

them to the company’s studio for touch-up, where they are 

saved to VHT’s electronic photo database, and then 

delivered to the client for use under license. Each license 

agreement between VHT and its clients differs slightly, but 

each contract generally grants the requesting client the right 

to use the photos in the sale or marketing of the featured 

property. Zillow receives these photos and other data in 

feeds from various real estate-related sources. 
6 VHT, INC. V. ZILLOW GROUP

In 2015, VHT sued Zillow Group, Inc., and Zillow, Inc., 

(collectively “Zillow”) for copyright infringement, alleging 

that Zillow’s use of photos on the Listing Platform and Digs 

exceeded the scope of VHT’s licenses to brokers, agents, and 

listing services who provided those photos to Zillow. The 

district court granted partial summary judgment on a limited 

set of claims, while other claims advanced to trial. The jury 

found in favor of VHT on most remaining claims, awarding 

over $8.27 million in damages. The district court partially 

granted Zillow’s post-trial motion for judgment 

notwithstanding the verdict, reversing in part the jury verdict 

and reducing total damages to approximately $4 million. 

The parties cross-appealed issues stemming from partial 

summary judgment, the jury verdict, and judgment 

notwithstanding the verdict. We affirm in part and reverse 

in part.1 

To simplify and make sense of the various claims, this 

opinion does not split out the appeal and cross-appeal as was 

done in the briefing to the court. Instead, the opinion 

separately addresses liability for each of the categories of 

photos at issue, followed by a discussion of damages. In 

view of the multiple theories of liability and categories of 

photos, following is an overview of the opinion. 

 1 In connection with these proceedings, we received amicus curiae

briefs from a broad array of interested parties, including nonprofit groups 

and associations representing a diverse set of industry, technology, and 

artistic interests. The briefs were helpful to our understanding of the 

implications of this case from various points of view. We thank amici 

for their participation.
VHT, INC. V. ZILLOW GROUP 7

I. Direct Infringement

A. Direct Infringement—Listing Platform Photos

B. Direct Infringement—Digs Photos

1. Jury Verdict—Direct Infringement

2. Summary Judgment—Fair Use re Searchable 

Photos 

a. Background on Fair Use

b. Evolution of Search Engine Cases

c. Application of Fair Use Principles

II. Secondary Infringement—Digs 

A. Contributory Liability

B. Vicarious Liability

III. Damages

A. Compilation

B. Willfulness 

IV. Conclusion

ANALYSIS

The heart of this dispute is Zillow’s copyright liability 

for use of VHT photos. VHT argues that Zillow directly 

infringed its copyrighted photos, both those on the Listing 

Platform and Digs. VHT also argues that Zillow indirectly 

infringed through use of the photos on Digs. These claims 

pertain to different images, focus on different features of 

Zillow’s website, and have different procedural postures, so 

we consider the various categories of photos separately. 

I. Direct Infringement 

VHT’s key claim is that Zillow is directly liable for 

infringing VHT’s copyright on photos that were posted on 

the Listing Platform and Digs. To prevail on a claim of 

direct copyright infringement, VHT must establish 

“ownership of the allegedly infringed material” and that 

Zillow “violate[d] at least one exclusive right granted to” 
8 VHT, INC. V. ZILLOW GROUP

VHT under 17 U.S.C. § 106. A&M Records, Inc. v. Napster, 

Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). It is undisputed 

that VHT is the copyright holder of the allegedly infringed 

photos and therefore has the exclusive right to reproduce, 

adapt, and display them.2 17 U.S.C. § 106.

VHT must also establish causation, which is commonly 

referred to as the “volitional-conduct requirement.” See 

Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th 

Cir. 2017). As we set out in Giganews—decided on the first 

day of the VHT/Zillow trial and the closest circuit precedent 

on point—“volition in this context does not really mean an 

act of willing or choosing or an act of deciding”; rather, “it 

simply stands for the unremarkable proposition that 

proximate causation historically underlines copyright 

infringement liability no less than other torts.” Id. (internal 

citations omitted). Stated differently, “direct liability must 

be premised on conduct that can reasonably be described as 

the direct cause of the infringement.” Id. (citation omitted). 

This prerequisite takes on greater importance in cases 

involving automated systems, like the Zillow website.

In addressing this concept, Justice Scalia noted that 

“[e]very Court of Appeals to have considered an automatedservice provider’s direct liability for copyright infringement 

has adopted [the volitional-conduct] rule.” Am. Broad. Cos., 

Inc. v. Aereo, Inc., 573 U.S. 431, 453 (2014) (Scalia, J., 

dissenting).3 He went on to explain that while “most direct-

 2 VHT does not appeal the district court’s finding that there was 

insufficient evidence that Zillow violated VHT’s distribution rights. 

3 Although the majority opinion in Aereo does not reference the 

volitional-conduct requirement, Justice Scalia’s dissent offers instructive 

background on the doctrine. In Giganews, we embraced the principle 
VHT, INC. V. ZILLOW GROUP 9

infringement cases” do not present this issue, “it comes right 

to the fore when a direct-infringement claim is lodged 

against a defendant who does nothing more than operate an 

automated, user-controlled system. . . . Most of the time that 

issue will come down to who selects the copyrighted 

content: the defendant or its customers.” Id. at 454–55 

(internal citations omitted).

Giganews, Aereo, and out-of-circuit precedent counsel 

that direct copyright liability for website owners arises when 

they are actively involved in the infringement. “‘[T]he 

distinction between active and passive participation’” in the 

alleged infringement is “‘central’” to the legal analysis. 

Giganews, 847 F.3d at 667 (quoting Fox Broad. Co. v. Dish 

Network LLC, 160 F. Supp. 3d 1139, 1160 (C.D. Cal. 2015)). 

That “direct” infringement requires “active” 

involvement is hardly surprising, given the correlation 

between the words “active” and “direct.” As the Fourth 

Circuit held, “[t]here must be actual infringing conduct with 

a nexus sufficiently close and causal to the illegal copying 

that one could conclude that the machine owner himself 

trespassed on the exclusive domain of the copyright owner.” 

CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th 

Cir. 2004). By contrast, activities that fall on the other side 

of the line, such as “‘automatic copying, storage, and 

transmission of copyrighted materials, when instigated by 

others, do[] not render an [Internet service provider] strictly 

liable for copyright infringement[.]’” Giganews, 847 F.3d at 

670 (quoting CoStar, 373 F.3d at 555). 

 and held that it is “consistent with the Aereo majority opinion,” which 

left the requirement “intact.” 847 F.3d at 666–67.
10 VHT, INC. V. ZILLOW GROUP

In other words, to demonstrate volitional conduct, a party 

like VHT must provide some “evidence showing [the alleged 

infringer] exercised control (other than by general operation 

of [its website]); selected any material for upload, download, 

transmission, or storage; or instigated any copying, storage, 

or distribution” of its photos. Id. at 666, 670. VHT failed to 

satisfy that burden with respect to either the photos on the 

Listing Platform or on Digs.

A. Direct Infringement—Listing Platform 

Photos

VHT asserted that Zillow directly infringed the photos 

displayed on the Listing Platform after a real estate property 

was sold because VHT’s license agreements only authorized 

use of those photos in relation to the sale of the property. 

This claim, involving 54,257 non-searchable photos, was 

resolved on summary judgment. The Listing Platform is the 

core of Zillow’s online real estate marketplace. It features 

photos and information about properties, which Zillow 

receives through digital feeds from real estate agents, 

brokerages, and multiple listing services, among others 

(collectively “feed providers”).

Zillow has agreements with its feed providers granting it 

an express license to use, copy, distribute, publicly display, 

and create derivative works from the feed data on its 

websites. Feed providers represent that they “ha[ve] all 

necessary rights and authority to enter into” the agreements, 

and that “Zillow’s exercise of the rights granted [t]hereunder 

will not violate the intellectual property rights, or any other 

rights of any third party.” 

These agreements provide Zillow with either 

“evergreen” or “deciduous” rights in the photos provided 

through the feeds. An evergreen right permits use of a photo 
VHT, INC. V. ZILLOW GROUP 11

without any time restriction, “on and in connection with the 

operation, marketing and promotion of the web sites and 

other properties, owned, operated or powered by Zillow or 

its authorized licensees.” By contrast, a deciduous right is 

temporally limited: Zillow may use the photo when the realestate listing for its corresponding property is active, but 

once the listing is removed (for example, when the property 

sells), the photo must be taken down from Zillow’s websites. 

To treat each photo consistently with its deciduous or 

evergreen designation, Zillow developed automated 

“trumping” rules to determine which photos to display on the 

Listing Platform.

VHT argues that Zillow “designed its system to . . . 

cause[] the reproduction, display, and adaptation of VHT 

photographs post-sale on the Listing Platform,” and “chose 

to simply ignore VHT’s notices that post-sale use was 

beyond the scope of VHT’s licenses.” The district court 

granted summary judgment to Zillow, concluding that it did 

not engage in volitional conduct and therefore did not 

directly infringe VHT’s copyrights in 54,257 photos by 

displaying them on the Listing Platform after a real estate 

property was sold.

On de novo review, we agree with the district court’s 

analysis and affirm. Kelly v. Arriba Soft Corp., 336 F.3d 

811, 817 (9th Cir. 2003). Although the district court did not 

have the benefit of Giganews at the time of summary 

judgment, its careful reasoning was prescient in invoking the 

same principles.

Zillow did not engage in volitional conduct necessary to 

support a finding of direct liability. The content of the 

Listing Platform is populated with data submitted by thirdparty sources that attested to the permissible use of that data, 
12 VHT, INC. V. ZILLOW GROUP

and Zillow’s system for managing photos on the Listing 

Platform was constructed in a copyright-protective way. 

The feed providers themselves select and upload every 

photo, along with the evergreen or deciduous designations, 

that wind up on the Listing Platform. As a result, the photos 

on the Listing Platform were not “selected” by Zillow. See 

Giganews, 847 F.3d at 670. Nor did Zillow “exercise[] 

control” over these photos beyond the “general operation of 

[its website].” Id. Zillow required feed providers to certify 

the extent of their rights to use each photo. Consistent with 

these designations, Zillow’s system classified each photo as 

deciduous or evergreen and programmed its automated 

systems to treat each photo consistently with that scope of 

use certified to by the third party.

Further, when multiple versions of the same photo were 

submitted through the various feeds, Zillow invoked its

copyright-protective “trumping” rules. For example, one 

rule might prefer a photo provided by an agent over one 

provided by a multiple listing service, and another might 

prefer a local broker to an international one. Zillow used a 

rule that gave preference to photos with evergreen rights 

over photos with deciduous rights in the same image. As the 

district court recognized, “trumping” is a reasonable way to 

design a system to manage multiple versions of the same 

photo when the authorized use varies across versions. These 

rules, along with other features of the system, facilitate 

keeping the photos with evergreen rights on the website and 

removing the photos with deciduous rights once a property 

has sold. Thus, Zillow actively designed its system to avoid 

and eliminate copyright infringement.

Notably, VHT’s argument is primarily cast in terms of 

Zillow facilitating or enabling infringement by VHT’s 

clients that are Zillow’s feed providers. But this type of 
VHT, INC. V. ZILLOW GROUP 13

claim more properly falls in the category of secondary 

infringement, a claim not advanced by VHT with respect to 

the Listing Platform photos. 

VHT also asserts that Zillow failed to remove photos 

once it received notice that infringing content was on the 

Listing Platform, a conscious choice that amounts to 

volitional conduct on Zillow’s part. This claim is unavailing 

because, once VHT put Zillow on notice of claimed 

infringement, Zillow took affirmative action to address the 

claims. Additionally, VHT’s assertion that it “repeatedly 

notified Zillow that it was infringing” is unsupported in the 

record.

In July 2014, VHT sent Zillow a takedown notice letter 

with a list of thousands of allegedly infringing photos by 

residential street address (but not by web address). Zillow 

promptly requested all executed license agreements between 

VHT and the feed providers who had provided photos to 

Zillow, as well as license agreements between VHT and its 

photographers, so that Zillow could evaluate whether VHT 

possessed exclusive rights to the photos on the Listing 

Platform. VHT responded with an unsigned form contract, 

which it stated was used with many feed providers, but 

which was not tied to any specific photos on Zillow’s 

website. Zillow again reiterated its need to see the specific 

contracts governing the contested photos. Instead of 

responding with the contracts, VHT filed suit. Zillow’s 

reasonable response to VHT’s single formal inquiry 

(supplemented in a follow-on email) can hardly be 

characterized as rising to the level of volitional conduct or 

turning a blind eye.

In sum, VHT failed to “provide[] . . . evidence showing 

[Zillow] exercised control (other than by general operation 
14 VHT, INC. V. ZILLOW GROUP

of [its website]); selected any material for upload, download, 

transmission, or storage; or instigated any copying, storage, 

or distribution” of these photos. See Giganews, 847 F.3d at 

670; see also CoStar, 373 F.3d at 555. Thus, we affirm the 

district court and conclude Zillow did not directly infringe 

VHT’s copyrights in photos displayed on the Listing 

Platform post-sale.

B. Direct Infringement—Digs Photos

VHT also claimed that Zillow directly infringed 

thousands of photos used on Digs. The jury concluded that 

Zillow directly infringed 28,125 photos and rejected its fair 

use defense. Following trial, the district court granted in 

substantial part Zillow’s motion for judgment 

notwithstanding the verdict on the ground that insufficient 

evidence supported Zillow’s direct infringement of 22,109 

photos that were not displayed on Digs and 2,0934 photos 

that were displayed but not searchable on Digs.

By contrast, the court upheld the jury’s determination 

that Zillow directly infringed a set of 3,921 images that were 

selected and tagged by Zillow moderators for searchable 

functionality and displayed on Digs. Zillow does not appeal 

this ruling. However, Zillow argues that fair use insulates it 

from liability as to this subset of photos. The jury was 

instructed not to consider this legal theory as to these photos 

because the district court had determined pretrial that, as a 

matter of law, the searchability function did not constitute 

fair use. It is that summary judgment ruling that Zillow 

challenges on appeal. Because we agree with the district 

 4 The displayed but non-searchable set includes 2,094 photos. The 

district court affirmed the jury verdict with respect to one of those 

photos, which Zillow also distributed via email.
VHT, INC. V. ZILLOW GROUP 15

court that the fair use defense does not absolve Zillow of 

direct liability for these searchable photos, this portion of the 

jury verdict remains intact. 

The following chart clarifies the status of the Digs photos 

relevant to the direct infringement claims. 

Photos Jury Verdict Post-Trial 

Determination

Party 

Bringing 

Appeal

22,109 not 

displayed5

Direct 

infringement

Overturned jury 

verdict

VHT

2,094 

displayed, not 

searchable

Direct 

infringement

Overturned jury 

verdict 

(except 1 email 

photo)

VHT

3,921 

displayed, 

searchable

Direct 

infringement

Upheld jury 

verdict

Zillow: 

direct 

infringement 

not appealed; 

appeals only 

summary 

judgment on 

no fair use

1 blog post 

photo (not on 

Digs)

Direct 

infringement

Upheld jury 

verdict 

Not appealed

 5 Searchable photos numbered 1,694; 20,415 photos were not 

searchable.
16 VHT, INC. V. ZILLOW GROUP

1. Jury Verdict—Direct Infringement

VHT’s claim that Zillow directly infringed photos on 

Digs went to the jury. The jury verdict form was framed in 

general terms, asking only whether “VHT has proven its 

direct copyright infringement claim as to one or more of the 

VHT Photos[.]” The jury answered “yes,” and was asked to 

specify how many VHT photos were directly infringed. The 

jury answered “28,125”—in other words, all of them. 

However, the jury was not asked to specify which copyright 

rights—display, reproduction, or adaption—were 

infringed.6 Following trial, Zillow moved for judgment 

notwithstanding the verdict or for a new trial. The task fell 

to the district court to examine the evidence as to each right.

On de novo review, “we apply the same standard used 

by the district court in evaluating the jury’s verdict” and 

uphold the verdict unless “the evidence permits only one 

reasonable conclusion, and that conclusion is contrary to the 

jury’s verdict.” Wallace v. City of San Diego, 479 F.3d 616, 

624 (9th Cir. 2007); Fed. R. Civ. P. 50(a). Specifically, we 

“ask[] whether the verdict is supported by substantial 

evidence,” “which is evidence adequate to support the jury’s 

conclusion, even if it is also possible to draw a contrary 

conclusion.” Unicolors, Inc. v. Urban Outfitters, Inc., 853 

F.3d 980, 984, 991 (9th Cir. 2017) (quotation and citation 

omitted). Given the sanctity of the jury process, we 

undertake this review with special care and reluctance to 

overturn a verdict. However, because the verdict here did 

not meet this standard, we affirm the district court’s grant of 

Zillow’s motion for judgment notwithstanding the verdict 

 6 As noted earlier, the distribution right was not contested and is not 

an issue on appeal.
VHT, INC. V. ZILLOW GROUP 17

with respect to direct infringement of 22,109 non-displayed 

photos and 2,093 displayed but not searchable photos.

We first consider display rights. As background for our 

analysis, it is useful to consider the direct infringement by 

Zillow that the district court upheld and that Zillow did not 

appeal. The district court found substantial evidence that 

Zillow directly infringed VHT’s display rights in 3,921 

photos displayed on Digs that Zillow moderators selected 

and tagged for searchable functionality. Based on testimony, 

charts, and statistics, the court found that “the jury could 

have reasonably concluded that users accessed those images 

through Digs’s search function.” The court went on to 

reason that “the jury could have reasonably concluded that 

Zillow’s moderation efforts, which rendered those images 

searchable, proximately caused the copying.” Put 

differently, active conduct by Zillow met the volitionalconduct requirement for direct infringement. Zillow does 

not appeal this ruling upholding the jury’s verdict as to the 

3,921 displayed, searchable photos.

On appeal, VHT attempts to shoehorn an additional 

1,694 photos into this category. This effort falls flat both as 

a factual and legal matter because substantial evidence does 

not support direct infringement of VHT’s display rights in 

the 1,694 searchable images that were not displayed. 

VHT posits that the jury could have found that these 

photos were displayed because of circumstantial evidence 

and because Zillow failed to record whether they were 

displayed. Not so. This argument is foreclosed by the 

parties’ stipulated spreadsheet that categorized each photo. 

The column labeled “DISPLAYED” included an entry for 

“Y” (yes) or “N” (no). The jury was instructed to “treat 

every fact on this spreadsheet as proven,” so VHT cannot 
18 VHT, INC. V. ZILLOW GROUP

recast the facts retroactively and now claim that 1,694 

searchable images stipulated as “N[OT] DISPLAYED” 

were in fact displayed or made available for display. Up is 

not down. 

VHT’s contention that the jury could have reasonably 

inferred that Zillow made “available for public display” all 

22,109 “N[OT] DISPLAYED” images similarly fails. This 

theory presumes that the Copyright Act’s display right 

encompasses an exclusive right to “make available for 

display,” a position neither supported by the statute nor 

embraced by this court. See Perfect 10, Inc. v. Amazon.com, 

Inc., 508 F.3d 1146, 1160 (9th Cir. 2007) (“[B]ased on the 

plain language of the statute, a person displays a 

photographic image by using a computer to fill a computer 

screen with a copy of the photographic image fixed in the 

computer’s memory.”); 17 U.S.C. § 101 (“To ‘display’ a 

work means to show a copy of it, either directly or by means 

of a film, slide, television image, or any other device or 

process or, in the case of a motion picture or other 

audiovisual work, to show individual images 

nonsequentially.”). To be sure, the Copyright Office notes 

that the outer limits of the public display right have yet to be 

defined. U.S. COPYRIGHT OFFICE, THE MAKING AVAILABLE 

RIGHT IN THE UNITED STATES 47–51 (Feb. 2016), 

https://www.copyright.gov/docs/making_available/makingavailable-right.pdf. 

What is most important here, though, is that VHT’s 

argument comes too late. The jury was never instructed on 

the “made available” theory, nor did VHT raise this issue in 

its proposed jury instructions or in objections to the final 

instructions. See Sinclair v. Long Island R.R., 985 F.2d 74, 

78 (2d Cir. 1993) (“the verdict . . . cannot be sustained on a 

theory that was never presented to the jury”); Ramona Equip. 
VHT, INC. V. ZILLOW GROUP 19

Rental, Inc. ex rel. U.S. v. Carolina Cas. Ins. Co., 755 F.3d 

1063, 1070 (9th Cir. 2014) (an argument raised for first time 

in a post-trial motion is waived). For these reasons, 

substantial evidence did not support a finding of direct 

infringement of VHT’s public display rights in these 22,109 

photos. 

Zillow also did not violate VHT’s display rights in 2,093 

displayed, non-searchable photos. These are photos that 

Digs users copied to “personal boards” and “Implicit Digs,” 

but which Zillow did not add to the searchable set. 

A “personal board” is a bespoke digital bulletin board of 

images that a user saves or uploads from the Listing 

Platform. Users can also upload their own images. These 

boards are typically private, though users can share a link to 

their boards. When a user saves a copy of an image with 

evergreen rights to a personal board, that image 

automatically joins a queue for review by a Zillow 

moderator. The moderator then decides whether to 

designate the photo for tagging so that it can be searchable 

on Digs, and thus select it for public display. Not all photos 

that are in the queue for moderation are reviewed. 

Additionally, in some instances, a user starts but does not 

finish the process of saving an image to this board. 

Beginning in 2014, Zillow programmed these “clicked to 

save” images—called “Implicit Digs”—to enter the queue 

for moderator review in the same manner as if the photo had 

been saved to a personal board.

According to VHT, the jury could have found that Zillow 

“caused the [2,093] images to be displayed . . . by subjecting 

the non-searchable VHT Photos to the potential for 

moderation.” This argument defies logic because the only 

display that occurred was triggered by the user. Any 
20 VHT, INC. V. ZILLOW GROUP

potential for future display is purely speculative. As the 

district court explained, the possibility that images might be 

moderated and tagged—conduct that is volitional—is not 

sufficient “to transform Zillow from a ‘passive host’ to a 

‘direct[] cause’ of the display of VHT’s images.”

Next, we consider VHT’s exclusive reproduction and 

adaption rights in the 2,093 displayed, non-searchable 

photos. The Copyright Act grants copyright holders the 

exclusive right “to reproduce the copyrighted work in copies 

or phonorecords.” 17 U.S.C. § 106(1). Direct infringement 

of the reproduction right “requires copying by the defendant, 

. . . which [requires] that the defendant cause the copying.” 

Fox Broad. Co., Inc. v. Dish Network LLC, 747 F.3d 1060, 

1067 (9th Cir. 2014) (quotation and citation omitted). The 

adaptation right is the exclusive right “to prepare derivative 

works based upon the copyrighted work.” 17 U.S.C. 

§ 106(2). Following Giganews, we conclude that Zillow’s 

automated processes storing or caching VHT’s photos are 

insufficiently volitional to establish that Zillow directly 

infringed VHT’s reproduction and adaption rights in these 

non-searchable photos. Unlike photos that Zillow curated, 

selected, and tagged for searchable functionality—activities 

that amount to volitional conduct establishing direct 

liability—these 2,093 photos were copied to “personal 

boards” and “Implicit Digs” based on user actions, not the 

conduct of Zillow or its moderators.

Any volitional conduct with respect to these photos was 

taken by the users, not Zillow. Users, not Zillow, 

“selecte[d]” images to add to their personal boards and 

“instigate[d]” the automatic caching process by saving a 

particular image. See Giganews, 847 F.3d at 670. This 

arrangement is important because courts have found no 

direct liability where an online system “responds 
VHT, INC. V. ZILLOW GROUP 21

automatically to users’ input . . . without intervening 

conduct” by the website owner. CoStar, 373 F.3d at 550; 

see also Giganews, 847 F.3d at 670. Under these conditions, 

courts have analogized online facilities, like Internet service 

providers, to a copy machine owner, who is not liable 

“[w]hen a customer duplicates an infringing work.” CoStar, 

373 F.3d at 550. 

Additionally, Zillow’s behind-the-scenes technical work 

on Digs photos is not evidence that Zillow “selected any 

material for upload, download, transmission, or storage.” 

Giganews, 847 F.3d at 670. Zillow produced cached copies 

of these Digs images, a process that automatically trims or 

pads images whose height and width did not match the target 

resolution, for the purposes of accelerating website speed. 

This activity does not amount to volitional conduct. Nor can 

Zillow’s promotion of Digs, including encouraging users to 

share photos through its site, be seen as “instigat[ing]” user 

copying. Id. 

Zillow’s conduct with respect to these photos amounts 

to, at most, passive participation in the alleged infringement 

of reproduction and adaption rights and is not sufficient to 

cross the volitional-conduct line. As in cases involving 

Internet service providers, Zillow “affords its [users] an 

Internet-based facility on which to post materials, but the 

materials posted are of a type and kind selected by the [user] 

and at a time initiated by the [user].” CoStar, 373 F.3d at 

555. Zillow did not directly infringe VHT’s reproduction 
22 VHT, INC. V. ZILLOW GROUP

and adaptation rights in the 2,093 displayed, non-searchable 

photos.7

* * *

In sum, VHT did not present substantial evidence that 

Zillow, through the Digs platform, directly infringed its 

display, reproduction, or adaption rights in 22,109 not 

displayed photos and 2,093 displayed but non-searchable 

photos. We affirm the district court’s grant of judgment 

notwithstanding the verdict as to these photos. We now turn 

to Zillow’s fair use defense to direct infringement of 3,921 

displayed, searchable photos.

2. Summary Judgment—Fair Use re 

Searchable Photos 

Zillow does not appeal the jury’s finding of direct 

infringement with respect to the 3,921 displayed, searchable 

photos, but does assert a fair use defense for those photos. 

Zillow contends that Digs’ searchable functionality 

constitutes fair use, which the district court rejected as a 

matter of law at summary judgment. 

We recount the somewhat unusual history of the fair use 

issue in the proceedings below. On summary judgment, the 

district court rejected Zillow’s argument that “the images 

that it has made searchable on Digs” are protected by fair use 

and instead “conclude[d] as a matter of law that Digs’ 

searchable functionality does not constitute a fair use.” At 

trial, the jury was generally instructed to consider the fair use 

 7 The same analysis applies to any potential violation of VHT’s 

exclusive reproduction and adaption rights in the 22,109 photos that were 

not displayed.
VHT, INC. V. ZILLOW GROUP 23

defense as to all VHT photos used on Digs that it found 

Zillow had directly or indirectly infringed. However, this set 

of photos was carved out for separate treatment. The jury 

considered only whether “reproduction, cropping, and 

scaling” of these photos constituted fair use because the 

court instructed the jury that the court “ha[d] determined, 

and you are to take as proven, that the Digs searchable 

functionality does not constitute fair use.” After finding that 

Zillow directly infringed all 28,125 VHT photos used on 

Digs, the jury rejected Zillow’s fair use affirmative defense 

for all photos.

The district court upheld the jury’s fair use verdict, 

which Zillow does not appeal. Rather, Zillow’s appeal 

reaches back to the district court’s summary judgment ruling 

to argue that the Digs’ searchable functionality is fair use as 

a matter of law, and, as a result, Zillow bears no liability for 

the 3,921 searchable and displayed photos. We review de 

novo the district court’s grant of summary judgment to VHT 

on this mixed question of law and fact. Kelly, 336 F.3d at 

817.

a. Background on Fair Use

Protection of copyrighted works is not absolute. “The 

fair use defense permits the use of copyrighted works 

without the copyright owner’s consent under certain 

situations.” Amazon, 508 F.3d at 1163. Fair use both fosters 

innovation and encourages iteration on others’ ideas, “thus 

providing a necessary counterbalance to the copyright law’s 

goal of protecting creators’ work product.” Id.; see 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575–76 

(1994). Fair use also aligns with copyright’s larger purpose 

“‘[t]o promote the Progress of Science and useful Arts,’ . . . 

and to serve ‘the welfare of the public.’” Amazon, 508 F.3d 
24 VHT, INC. V. ZILLOW GROUP

at 1163 (quoting U.S. Const. art. I, § 8, cl. 8, and Sony Corp. 

of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 n.10 

(1984)).

Fittingly enough, a case involving a biography of George 

Washington serves as a foundational source of fair use in 

American law. Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 

1841) (No. 4901). Justice Story’s narrative description of 

copyright doctrine in that case “distilled the essence of law 

and methodology from the earlier cases” and provided the 

conceptual basis for the judge-made fair use doctrine. 

Campbell, 510 U.S. at 576. Although the 1976 Copyright 

Act codified those principles, it did little to elaborate on 

Justice Story’s description or to clarify application of the 

factors. With minimal guidance or elucidation, Congress set 

forth four factors for courts to consider when determining 

whether the use of a copyrighted work is a “fair use”: 

(1) the purpose and character of the use, 

including whether such use is of a 

commercial nature or is for nonprofit 

educational purposes; 

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the 

portion used in relation to the copyrighted 

work as a whole; and

(4) the effect of the use upon the potential 

market for or value of the copyrighted 

work.

17 U.S.C. § 107.
VHT, INC. V. ZILLOW GROUP 25

Given license to apply these factors flexibly and to 

consider them in their totality, courts have been bedeviled by 

the fair use inquiry. See Campbell, 510 U.S. at 577–78. Fair 

use has been called “the most troublesome [doctrine] in the 

whole law of copyright” and commentators have criticized 

the factors as “billowing white goo.” Monge v. Maya 

Magazines, Inc., 688 F.3d 1164, 1170–71 (9th Cir. 2012) 

(citations and quotations omitted). In a (still ongoing) effort 

to adapt the fair use analysis to a myriad of circumstances, 

courts have embellished and supplemented the factors. For 

example, the concept of “transformativeness” is found 

nowhere in the statute, but appeared for the first time in the 

Supreme Court in Campbell, where the Court endeavored to 

refine and crystalize the first statutory factor: the “purpose 

and character of the use.”8 510 U.S. at 579. The animating 

purpose of the first factor is to determine, 

in Justice Story’s words, whether the new 

work merely ‘supersede[s] the objects’ of the 

original creation . . . or instead adds 

something new, with a further purpose or 

different character, altering the first with new 

expression, meaning, or message; it asks, in 

other words, whether and to what extent the 

new work is “transformative.”

 8 The concept of transformative use had appeared in earlier lower 

court decisions, e.g., Twin Peaks Prods., Inc. v. Publ’ns Intern., Ltd., 996 

F.2d 1366, 1375 (2d Cir. 1993) (“[I]t is not uncommon for works serving 

a fair use purpose to give at least a brief indication of the plot. . . . In 

identifying plot, the author of the second work may or may not be said 

to have made . . . a ‘transformative’ use. . . . Such use would occur, for 

example, if a plot was briefly described for purposes of adding 

significant criticism or comment about the author’s plotting technique.”).
26 VHT, INC. V. ZILLOW GROUP

Id. (citations omitted). Because transformation advances 

copyright’s core goals, “the more transformative the new 

work, the less will be the significance of other factors.” Id. 

Likewise, despite the absence of a textual hook, public 

purpose also has been read into the statute. See Amazon, 508 

F.3d at 1166; Kelly, 336 F.3d at 820. While we can discern 

certain animating principles bridging cases in this area, the 

doctrine has hardly followed a straight, or even slightly 

curved, line. 

The focus of the parties’ debate here is whether Zillow’s 

tagging of 3,921 VHT photos for searchable functionality on 

Digs was transformative and thus supported a finding of fair 

use. The purpose of Digs is to permit users to search for 

certain attributes or features, such as a marble countertop or 

hardwood floor, and view photos of rooms with those 

attributes or features. These photos are either uploaded by 

users to Digs, or selected manually or electronically by 

Zillow. Zillow then tags the photos to make them 

searchable. Of course, tagging makes it possible for a user’s 

keyword search to produce relevant results. Zillow refers to 

these tagged photos as “searchable images” or components 

of the “searchable set.” VHT’s 3,921 photos are in the 

searchable set.

Zillow contends that Digs is effectively a search engine, 

which makes its use of VHT’s photos transformative, and 

therefore fair use. VHT responds that this is not fair use 

because Digs is not a search engine and the tagging for 

searchable functionality is not transformative. Dueling 

“search engine” characterizations do not resolve fair use 

here. Instead, we step back and assess the question 

holistically, as we have been instructed to do by the statute 

and the Supreme Court. We consider the reality of what is 
VHT, INC. V. ZILLOW GROUP 27

happening rather than resorting to labels. To do that, it is 

helpful to recount the history of the search engine cases.

b. Evolution of Search Engine Cases

Over the past two decades, search engines have emerged 

as a significant technology that may qualify as a 

transformative fair use, making images and information that 

would otherwise be protected by copyright searchable on the 

web. See Amazon, 508 F.3d at 1166–67; Kelly, 336 F.3d at 

818–22. In assessing fair use in the context of search 

engines, courts have relied heavily on the first fair use factor, 

and in particular “whether and to what extent the new work 

is transformative.” Campbell, 510 U.S. at 579 (citation and 

quotation omitted); see also Amazon, 508 F.3d at 1164 

(explaining the Kelly court relied “primarily” on the first fair 

use factor when conducting its analysis); Authors Guild v. 

Google, Inc., 804 F.3d 202, 220–221, 223 (2d Cir. 2015) 

(offering a relatively abbreviated consideration of the 

remaining three fair use factors, all of which were informed 

by its analysis of the first factor).

In an early opinion applying fair use principles in the 

digital age, we held that the now-defunct search engine 

Arriba’s creation and use of thumbnail versions of a 

professional photographer’s copyrighted images was fair use 

because the “smaller, lower-resolution images . . . served an 

entirely different function than [the] original images.” Kelly, 

336 F.3d at 815, 818. The original images served an artistic 

or aesthetic purpose. Id. at 819. By contrast, the thumbnail 

images, which were provided in response to a user’s search 

query, were incorporated into the search engine’s overall 

function “to help index and improve access to images on the 

internet and their related web sites.” Id. at 818. Investing 

the images with a new purpose made Arriba’s use 
28 VHT, INC. V. ZILLOW GROUP

transformative, not superseding. Indeed, the thumbnail 

versions could not supersede the original use because the 

thumbnails were grainy and low-resolution when enlarged. 

Id. Additionally, Arriba’s use of the thumbnail images 

“promote[d] the goals of the Copyright Act and the fair use 

exception” because they “benefit[ed] the public by 

enhancing information-gathering techniques on the 

internet.” Id. at 820. Just as Campbell had drawn out the 

principle of transformation from the first statutory factor, we 

drew out the principle of public benefit. 

Building on our reasoning in Kelly, in Amazon we held 

that Google’s use of thumbnail images in its search engine 

is “highly transformative” and thus fair use. 508 F.3d at 

1163–65. As in Kelly, we concluded that “a search engine 

provides social benefit by incorporating an original work 

into a new work, namely, an electronic reference tool.” Id.

at 1165. On a scale much greater than the search engine at 

issue in Kelly, Google “improve[s] access to images on the 

internet and their related web sites” by “index[ing]” the 

internet and linking to the original source image generated 

in the search results. Kelly, 336 F.3d at 815–16, 818. By 

using the thumbnail images in service of the search engine, 

Google “transforms the image,” which might have been 

created for an “entertainment, aesthetic, or informative 

function,” “into a pointer directing a user to a source of 

information.” Amazon, 508 F.3d at 1165. As a result of the 

new function that the image serves, Google’s use of the 

entire image in its search engine results “does not diminish 

the transformative nature of [its] use.” Id. And, further 

developing the public benefit principle from Kelly, we 

emphasized that Google’s search engine both “promotes the 

purposes of copyright and serves the interests of the public,” 

which significantly outweighed the superseding or 
VHT, INC. V. ZILLOW GROUP 29

commercial uses of the search engine, and strongly 

supported finding fair use. Id. at 1166.

More recently, the Second Circuit considered whether 

fair use protected the Google Books search engine, which 

employs digital, machine-readable copies of millions of 

copyright-protected books scanned by Google. Authors 

Guild, 804 F.3d at 207–08.9 The Google Books search 

engine enables a full text search, which makes possible 

searching for a specific term, and then provides “snippets,” 

or a part of a page, for users to read. Id. at 208–09, 216–17. 

The court held that both functions involve a “highly 

transformative purpose of identifying books of interest to the 

searcher.” Id. at 218. The search function “augments public 

knowledge by making available information about

Plaintiffs’ books without providing the public with a 

substantial substitute.” Id. at 207. And the search engine 

makes possible a new type of research known as “text 

mining” or “data mining,” whereby users can search across 

the corpus of books to determine the frequency of specified 

terms across time. Id. at 209, 217. Additionally, the 

“snippet” view provides context for users to assess if a book 

is relevant to them, without providing so much context as to 

supersede the original. Id. at 218. To boot, Google often 

provides a link to a page where the entire book can be found 

at a library or purchased. Id. at 209. Concluding that 

Google’s commercial motivation did not significantly 

outweigh these transformative uses, the court held that the 

first factor strongly supported a finding of fair use. Id. at 

219.

 9 The Google Books search engine also featured millions of public 

domain texts. For obvious reasons, fair use was not at issue with those 

works. 
30 VHT, INC. V. ZILLOW GROUP

What we divine from these cases is that the label “search 

engine” is not a talismanic term that serves as an on-off 

switch as to fair use. Rather, these cases teach the 

importance of considering the details and function of a 

website’s operation in making a fair use determination. We 

now examine Digs with those lessons in mind.

c. Application of Fair Use Principles 

As noted, the first factor assesses the character of the use, 

including whether it is commercial in nature, and, critically, 

whether it is “transformative.” There is no dispute that 

Zillow’s use is for commercial purposes, a factor we cannot 

ignore. To determine if that use is transformative, we 

consider whether and to what extent it “adds something new, 

with a further purpose or different character, altering the first 

with new expression, meaning, or message[.]” Campbell, 

510 U.S. at 579. Though we agree that Digs is a type of 

search engine because it offers searchable functionality, it is 

qualitatively different than Google and other open-universe 

search engines, as well as different than the Google Books 

search engine. 

Most simply, a search engine is a software program that 

enables information retrieval by helping users find 

information through the use of keyword queries. But not all 

search engines are created equal. The search engines 

commonly used for day-to-day research are internet-wide 

search engines, like Google, Yahoo, or Bing. These search 

engines are programs powered by algorithms that search or 

“crawl” the web. A search engine like Google then indexes 

websites, stores them on a database, and runs users’ search 

queries against it. Search results are typically a mix of 

images and text, which include hyperlinks to sources of that 

content elsewhere on the web. Amazon, 508 F.3d at 1155.
VHT, INC. V. ZILLOW GROUP 31

Unlike the internet-wide search engines considered in 

Amazon and Kelly, Digs is a closed-universe search engine 

that does not “crawl” the web. Users can run searches on the 

“searchable set” of images within Digs’ walled garden, 

which includes VHT photos. The search results do not direct 

users to the original sources of the photos, such as VHT’s 

website. Rather, they link to other pages within Zillow’s 

website and, in some cases, to third-party merchants that sell 

items similar to those featured in the photo.

That Digs makes these images searchable does not 

fundamentally change their original purpose when produced 

by VHT: to artfully depict rooms and properties. 

Additionally, Digs displays the entire VHT image, not 

merely a thumbnail. Unlike in Amazon, the new image does 

not serve a “different function” than the old one. Amazon, 

508 F.3d at 1165. Zillow’s use preserves the photos’ 

“inherent character.” Monge, 688 F.3d at 1176. And Zillow 

“simply supersed[es] [VHT’s] purpose” in creating the 

images in the first place. Kelly, 336 F.3d at 819–20; see 

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 

539, 550–51 (1985) (holding that if a new work 

“supersede[s] the use of the original,” it is probably not a fair 

use). 

Comparing Digs to the Google Books search engine 

further drives home this analysis. We agree with the Second 

Circuit’s observation that the copyright dispute over the 

Google Books search engine “tests the boundaries of fair 

use.” Authors Guild, 804 F.3d at 206. We conclude that 

Digs goes one step further—and crosses the line. 

Like Digs, the Google Books search engine operates on 

a closed database comprised of complete digital copies of 

original works. Id. at 217. But the similarities end there. 
32 VHT, INC. V. ZILLOW GROUP

The Google Books project makes it possible to search books 

for “identifying information instantaneously supplied [that] 

would otherwise not be obtainable in lifetimes of searching.” 

Id. at 209. With this broad purpose in mind, the court 

rightfully observed that this system “augments public 

knowledge.” Id. at 207. This rationale bears no comparison 

to Digs.

Nor is the limited transformation present on Digs 

remotely comparable to the unprecedented text mining, word 

pattern, frequency of use, and other statistical analyses made 

possible for the first time by Google Books. Google Books 

search results provide “[a] brief description of each book, 

entitled ‘About the Book,’” as well as, for some books, links 

for borrowing or purchasing the book. Id. at 209. 

Significantly, a Google Books search produces only a 

“snippet” of the book, and sometimes it “disables snippet 

view entirely.” Id. at 210. At the request of a rights holder, 

Google “will exclude any book altogether from snippet 

view.” Id. 

These features, in conjunction with other creative aspects 

of Google Books, result in a categorically more 

transformative use than Zillow’s simple tagging and query 

system that displays full-size copyrighted images serving the 

same purpose as the originals, with no option to opt out of 

the display, and with few, if any, transformative qualities. 

Any transformation by Zillow pales in comparison to the 

uses upheld in prior search engine cases. Such use also does 

nothing to further the use of copyrighted works for the 

socially valuable purposes identified in the Copyright Act 

itself, like “criticism, comment, news reporting, 

teaching . . . , scholarship, or research.” 17 U.S.C. § 107; 

see also 4 NIMMER ON COPYRIGHT § 13.05[A]. The lack of 

transformation is especially significant because, as Kelly 
VHT, INC. V. ZILLOW GROUP 33

teaches, “[t]he more transformative the new work, the less 

important the other factors, including commercialism, 

become.” 336 F.3d at 818 (citing Campbell, 510 U.S. at 

579). If, as the Second Circuit suggested, Google’s use 

“tests the boundaries of fair use,” Zillow’s efforts push Digs 

into the outer space of fair use. Authors Guild, 804 F.3d at 

206. So while Google Books may inch across the boundary 

of fair use, Zillow’s use does not approach the line.

Our decisions in Amazon and Kelly provide a roadmap 

for analyzing the second factor, which focuses on the nature 

of the copyrighted work. In those cases, we held that 

photographers’ images are creative, especially when they are 

created for public viewing. Amazon, 508 F.3d at 1167; 

Kelly, 336 F.3d at 820. “Works that are creative in nature 

are ‘closer to the core of intended copyright protection’ than 

are more fact-based works.” Napster, 239 F.3d at 1016 

(quoting Campbell, 510 U.S. at 586). 

So too here. VHT’s photos are aesthetically and 

creatively shot and edited by professional photographers. 

That Zillow’s curators select the most creative photos for the 

Digs searchable set underscores the creative nature of the 

works. But, as the district court properly noted, this factor 

operates “with less force” in favor of VHT because the 

photos had already been published on the Listing Platform. 

See Kelly, 336 F.3d at 820 (“The fact that a work is published 

or unpublished also is a critical element of its nature. 

Published works are more likely to qualify as fair use 

because the first appearance of the artist’s expression has 

already occurred.”). Ultimately, this factor only slightly 

favors VHT, further cutting against finding fair use. 

The third factor evaluates the amount and substantiality 

of the copyrighted work that was used. “[C]opying an entire 
34 VHT, INC. V. ZILLOW GROUP

work militates against a finding of fair use.” Worldwide 

Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 

1118 (9th Cir. 2000) (quotation and citation omitted). 

However, this analysis is informed by the “purpose of the 

copying.” Campbell, 510 U.S. at 586. In that spirit, we have 

found that copying full works qualifies as fair use where “[i]t 

was necessary . . . to copy the entire image to allow users to 

recognize the image and decide whether to pursue more 

information about the image or the originating web site.” 

Kelly, 336 F.2d at 821. In contrast to Amazon and Kelly, 

nothing justifies Zillow’s full copy display of VHT’s photos 

on Digs. 

Finally, the fourth factor considers “the effect of the use 

upon the potential market for or value of the copyrighted 

work.” 17 U.S.C. § 107(4). To defeat a fair use defense, 

“one need only show that if the challenged use should 

become widespread, it would adversely affect the potential

market for the copyrighted work.” Harper & Row 

Publishers, 471 U.S. at 568 (citation and quotation omitted). 

Although VHT had licensed only a handful of photos for 

secondary uses (and none on a searchable database), that 

market was more than “hypothetical.” See Amazon, 508 

F.3d at 1168. Significantly, VHT was “actively exploring” 

the market for licensing its photos to home design websites 

like Digs—including with Zillow itself. This factor favors 

VHT. 

Taken together, the nature of Zillow’s use, when 

integrated with the four factors, cuts against finding fair use 

by Zillow. We affirm the district court’s grant of summary 

judgment to VHT with respect to fair use. 
VHT, INC. V. ZILLOW GROUP 35

II. Secondary Infringement—Digs

Turning to VHT’s claim for secondary infringement, the 

district court correctly concluded that Zillow did not 

secondarily infringe VHT’s exclusive rights in the 28,125 

photos used on Digs, aside from 114 images created on Digs 

after VHT specifically identified them, which are not on 

appeal. As noted before with regard to the district court’s 

ruling on direct infringement, “we apply the same standard 

used by the district court in evaluating the jury’s verdict” and 

uphold the verdict unless “the evidence permits only one 

reasonable conclusion, and that conclusion is contrary to the 

jury’s verdict.” Wallace, 479 F.3d at 624; Fed. R. Civ. P. 

50(a). The jury’s verdict here did not meet this standard. 

We affirm the district court’s grant of Zillow’s motion for 

judgment notwithstanding the verdict with respect to 

secondary infringement, both contributory and vicarious 

infringement. 

A. Contributory Liability 

Contributory liability requires that a party “(1) has 

knowledge of another’s infringement and (2) either 

(a) materially contributes to or (b) induces that 

infringement.” Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 

F.3d 788, 795 (9th Cir. 2007). Zillow’s actions do not satisfy 

the second prong—material contribution or inducement—so 

we do not address the first prong. See Giganews, 847 F.3d 

at 671.

In Giganews, we outlined the means of material 

contribution to infringement: 

In the online context, . . . a “computer system 

operator” is liable under a material 

contribution theory of infringement “if it has 
36 VHT, INC. V. ZILLOW GROUP

actual knowledge that specific infringing 

material is available using its system, and can 

take simple measures to prevent further 

damage to copyrighted works, yet continues 

to provide access to infringing works.”

Id. at 671 (quoting Amazon, 508 F.3d at 1172); see also 

Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004) 

(applying this standard in the online context); Napster, 239 

F.3d at 1022 (same); Religious Tech. Ctr. v. Netcom On-Line 

Comm’n Servs., Inc., 907 F. Supp. 1361, 1375 (N.D. Cal. 

1995) (same). There is insufficient evidence to support the 

contributory infringement verdict under the “simple 

measures” standard. 

VHT’s position that “the jury could have reasonably 

decided that Zillow in fact had the means to identify and 

remove” the allegedly infringing images that VHT identified 

by property address, as opposed to their website designation 

or Uniform Resource Locator (“URL”), fails. Zillow 

testified throughout trial that, in order to systematically or 

swiftly take down a large number of photos, it required the 

Zillow Image ID–a number that is in the URL for each 

image. This stands to reason, because “Zillow receives 

multiple copies of the same photograph, depicting the same 

property, with the same listing agent, from different feeds.” 

Merely identifying the physical property address in no way 

identified the proper feed or the correct photo. Thus, Zillow 

did not have appropriately “specific” information necessary 

to take “simple measures” to remedy the violation. 

VHT’s argument that Zillow is liable for failing to ask 

for the URLs of the allegedly infringing photos also fails. 

Asking for the URLs was not Zillow’s duty under the 

contributory liability standard: Zillow must have “actual 
VHT, INC. V. ZILLOW GROUP 37

knowledge that specific infringing material is available using 

its system.” Amazon, 508 F.3d at 1172 (citation and 

quotation omitted). Zillow first reasonably asked to see the 

licenses between VHT and the feed providers; otherwise, 

Zillow could not assess ownership and rights in the 

undefined images. That Zillow did not proactively request a 

list of URLs before VHT filed suit does not make Zillow 

contributorily liable. 

Additionally, Zillow’s failure to systematically use 

watermarking technology does not show there was a “simple 

measure” available that it failed to use. Even assuming there 

were “reasonable and feasible means” for Zillow to employ 

watermark detection technology, in practice VHT rarely 

watermarked its photos. See Giganews, 847 F.3d at 672 

(citation and quotation omitted). 

Nor did Zillow induce infringement. Inducement 

liability requires evidence of “active steps . . . taken to 

encourage direct infringement.” Metro-Goldwyn-Mayer 

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936 (2005) 

(citation and quotation omitted)). Evidence of active steps 

includes “advertising an infringing use or instructing how to 

engage in an infringing use,” because such evidence 

“show[s] an affirmative intent that the product be used to 

infringe.” Id.; see also Columbia Pictures Industries, Inc. v. 

Fung, 710 F.3d 1020, 1032 (9th Cir. 2013) (inducement 

liability requires “an object of promoting [the product’s] use 

to infringe copyright”). The “improper object” of 

infringement “must be plain and must be affirmatively 

communicated through words or actions[.]” Fung, 710 F.3d 

at 1034. 

In view of the evidence, “no reasonable juror could 

conclude [Zillow] distributed its product with the object of 
38 VHT, INC. V. ZILLOW GROUP

promoting its use to infringe copyright.” Giganews, 847 

F.3d at 672 (quotation and citation omitted). For example, 

Zillow’s generally applicable tools and messages for users 

to save more photos from the Listing Platform to Digs does 

not “promote[] the use of [Digs] specifically to infringe 

copyrights.” Amazon, 508 F.3d at 1170 n.11. Nor does 

evidence that Zillow sometimes makes mistakes about the 

display rights in a feed plainly communicate an improper 

object of infringement. Zillow corrects these inadvertent 

errors when it learns of them. Because a “failure to take 

affirmative steps to prevent infringement” alone cannot 

trigger inducement liability, the inducement claim is a 

particularly poor fit for Zillow’s real estate and home design 

websites, which have “substantial noninfringing uses.” 

Grokster, 545 U.S. at 939 n.12.

B. Vicarious Liability 

Neither does the vicarious liability theory fit the Zillow 

platform. To prevail on a vicarious liability claim, “[VHT] 

must prove ‘[Zillow] has (1) the right and ability to supervise 

the infringing conduct and (2) a direct financial interest in 

the infringing activity.’” Giganews, 847 F.3d at 673 

(quoting Visa, 494 F.3d at 802). The first element requires 

“both a legal right to stop or limit the directly infringing 

conduct, as well as the practical ability to do so.” Amazon, 

508 F.3d at 1173. VHT’s vicarious infringement argument 

fails because, as the district court found, “Zillow ‘lack[ed] 

the practical ability to police’ its users’ infringing conduct” 

on Digs.

As discussed with respect to contributory infringement, 

there was insufficient evidence that Zillow had the technical 

ability to screen out or identify infringing VHT photos 

among the many photos that users saved or uploaded daily 
VHT, INC. V. ZILLOW GROUP 39

to Digs. Regardless, such allegations do not fall under the 

vicarious liability rubric: Zillow’s “failure to change its 

operations to avoid assisting [users] to distribute . . . 

infringing content . . . is not the same as declining to exercise 

a right and ability to make [third parties] stop their direct 

infringement.” Amazon, 508 F.3d at 1175. 

Our conclusion is consistent with earlier dicta that “the 

vicarious liability standard applied in Napster can be met by 

merely having the general ability to locate infringing 

material and terminate users’ access.” UMG Recordings, 

Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1030 

(9th Cir. 2013) (emphasis added). Once VHT photos were 

uploaded to the Listing Platform with appropriate 

certification of rights, ferreting out claimed infringement 

through use on Digs was beyond hunting for a needle in a 

haystack. As the district court concluded, “the trial record 

lacks substantial evidence of a practical ability to limit direct 

infringement for the same reasons it lacks substantial 

evidence of simple measures to remove infringing material.” 

And linking a claimed infringement to a feed provider was 

even more of an impossibility. 

We affirm the district court’s judgment notwithstanding 

the verdict concluding that substantial evidence did not 

support the claim that Zillow secondarily infringed VHT’s 

exclusive rights in its photos.

III. Damages 

A. Compilation 

The size of the damages award hinges on whether VHT’s 

photos used on Digs are part of a “compilation” or if they are 

individual photos. This distinction makes a difference. If 

the VHT photo database is a “compilation,” and therefore 
40 VHT, INC. V. ZILLOW GROUP

one “work” for the purposes of the Copyright Act, then VHT 

would be limited to a single award of statutory damages for 

Zillow’s use of thousands of photos on Digs. 17 U.S.C. 

§ 504(c)(1). But if the database is not a compilation, then 

VHT could seek damages for each photo that Zillow used. 

In lieu of actual damages, a copyright holder may elect 

to receive statutory damages under the Copyright Act. 17 

U.S.C. § 504(c)(1). VHT did so. The Act provides for “an 

award of statutory damages for all infringements involved in 

the action, with respect to any one work . . . in a sum of not 

less than $750 or more than $30,000.” Id. This provision 

ties statutory damages to the term “work,” which is 

undefined, except in a circular manner: copyright law 

protects “original works of authorship.” 17 U.S.C. § 102(a). 

Fortunately, there is a definition of compilation: “a work 

formed by the collection and assembling of preexisting 

materials or of data that are selected, coordinated, or 

arranged in such a way that the resulting work as a whole 

constitutes an original work of authorship.” 17 U.S.C.

§ 101. For purposes of statutory damages, “all the parts of a 

compilation . . . constitute one work.” 17 U.S.C. 

§ 504(c)(1). “The question of whether a work constitutes a 

‘compilation’ for the purposes of statutory damages pursuant 

to Section 504(c)(1) of the Copyright Act is a mixed question 

of law and fact.” Bryant v. Media Right Prods., Inc., 603 

F.3d 135, 140 (2d Cir. 2010).

Whether various VHT photo collections comprise one or 

more compilations is a threshold damages question. Before 

trial, Zillow asked for a legal determination on the 

compilation issue. That motion was denied. However, the 

district court did not make an explicit determination about 

compilation and the specifics of compilation were not put 

before the jury. In fairness to the district court, we might 
VHT, INC. V. ZILLOW GROUP 41

infer from the transcript that there was an implicit 

determination as to whether VHT’s photos are part of a 

compilation, but we are left in doubt. Instead, the jury was 

instructed that “[e]ach VHT Photo that has independent 

economic value constitutes a separate work.” On the verdict 

form, the jury was asked which “photographs have 

independent economic value.”

The notion of “independent economic value” derives not 

from the statute, but from case law. In the Ninth Circuit, the 

question of whether something—like a photo, television 

episode, or so forth—has “independent economic value” 

informs our analysis of whether the photo or episode is a 

work, though it is not a dispositive factor. See Columbia 

Pictures Television, Inc. v. Krypton Broad. of Birmingham, 

Inc., 259 F.3d 1186, 1193 (9th Cir. 2001). But consideration 

of the independent economic value factor does not answer 

the question whether something is a compilation. That 

question remains unanswered here.

On appeal, the parties have polar opposite views on 

whether there was a compilation (Zillow’s position) or 

whether each photo is entitled to a separate damages award 

(VHT’s position). VHT registered thousands of photos as 

compilations. But the Copyright Office warns that such a 

registration “may” limit the copyright holder “to claim only

one award of statutory damages in an infringement action, 

even if the defendant infringed all of the component works 

covered by the registration.” U.S. COPYRIGHT OFFICE,

COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES

§ 1104.5 (Sept. 2017), https://www.copyright.gov/comp3/

docs/compendium.pdf. Though the registration label is not 

controlling, it may be considered by the court when 

assessing whether a work is a compilation. See Yellow 

Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 1277 
42 VHT, INC. V. ZILLOW GROUP

(11th Cir. 2015) (“Although the manner of copyright 

registration is not dispositive of the works issue, this Court 

has previously considered it to be at least a relevant factor.”). 

Ultimately, what counts is the statutory definition. 

Because there were at least ten different copyright 

registrations, thousands of photos, and no explicit 

determination on compilation, we decline to sort out the 

compilation issue on appeal. We remand to the district court 

for further proceedings as to whether the VHT photos 

remaining at issue were a compilation. 

B. Willfulness

The jury found that Zillow willfully infringed exclusive 

rights to 3,373 searchable VHT photos that were eligible for 

statutory damages. The district court largely upheld the 

willfulness finding in its post-trial motions order. However, 

the court granted Zillow judgment notwithstanding the 

verdict on 673 images that were not displayed, so the court’s 

final willfulness judgment applied to 2,700 searchable 

photos on Digs. 

To uphold a jury’s willfulness finding, there must be 

substantial evidence “(1) that the [the infringing party] was 

actually aware of the infringing activity, or (2) that the 

[infringing party’s] actions were the result of reckless 

disregard for, or willful blindness to, the copyright holder’s 

rights.” Unicolors, 853 F.3d at 991 (citation and quotation 

omitted). Under the second prong, willful blindness requires 

that the infringing party “(1) subjectively believed that 

infringement was likely occurring on their networks and that 

they (2) took deliberate actions to avoid learning about the 

infringement.” Luvdarts, LLC v. AT&T Mobility, LLC, 710 

F.3d 1068, 1073 (9th Cir. 2013). Reckless disregard can be 

demonstrated, for example, when a party “refus[es], as a 
VHT, INC. V. ZILLOW GROUP 43

matter of policy, to even investigate or attempt to determine 

whether particular [photos] are subject to copyright 

protections.” Unicolors, 853 F.3d at 992. A finding of 

willfulness has significant financial consequences—the jury 

may increase damages up to $150,000 per violation. See 17 

U.S.C. § 504(c)(2). 

As noted with respect to infringement, we do not take 

lightly the decision to reverse a jury verdict, nor do we 

cavalierly set aside the district court’s thoughtful analysis. 

But here, we are compelled to disagree with both because 

substantial evidence does not support willfulness as to the 

2,700 photos.

The test for willfulness is in the alternative: either actual 

notice or recklessness shown by reckless disregard or 

turning a blind eye to infringement. We turn first to actual 

notice. That VHT provided Zillow with minimal notice of 

infringement does not itself establish that any subsequent 

infringement was willful. Rather, “[c]ontinued use of a work 

even after one has been notified of his or her alleged 

infringement does not constitute willfulness so long as one 

believes reasonably, and in good faith, that he or she is not 

infringing.” Evergreen Safety Council v. RSA Network Inc., 

697 F.3d 1221, 1228 (9th Cir. 2012); see also Danjaq LLC 

v. Sony Corp., 263 F.3d 942, 959 (9th Cir. 2001) (“It would 

seem to follow that one who has been notified that his 

conduct constitutes copyright infringement, but who 

reasonably and in good faith believes the contrary, is not 

‘willful’ for these purposes.”) (quoting 4 NIMMER ON 

COPYRIGHT § 14.04[B][3]). 

Such is the case here. Zillow’s agreements with its feed 

providers grant it an express license to use, copy, distribute, 

publicly display, and create derivative works for each photo, 
44 VHT, INC. V. ZILLOW GROUP

and the agreements include unambiguous representations by 

the feed providers that they have the authority to assign such 

rights. Zillow developed procedures to identify ex ante the 

scope of its license for each uploaded photo and employed 

automated protocols to manage the use of each photo 

consistent with its evergreen or deciduous designation. At 

no point during their year of communications prior to 

issuance of the notice letter did VHT raise the specter of 

infringement. Notably, VHT’s eventual notice was minimal: 

one letter with a list of allegedly infringing photos, 

designated by residential street address, not web address.

The notion that Zillow failed to take appropriate 

responsive measures after receiving this notice is belied by 

the record. Zillow immediately requested information to 

confirm VHT’s copyright ownership and cross-reference the 

photos with licensing information. VHT was not 

forthcoming with that information. Rather, in response, 

VHT offered merely an unsigned form contract. Instead of 

providing helpful information, VHT then filed suit. Given 

the limited information provided by VHT, Zillow could not 

reasonably be expected to have promptly and unilaterally 

removed each flagged photo. As the district court noted, 

VHT failed to demonstrate there were simple measures 

available for the removal of infringing photos or that Zillow 

had any “practical ability to independently identify 

infringing images.”

Thus, we are compelled to conclude that substantial 

evidence does not show Zillow was “actually aware” of its 

infringing activity. See Evergreen Safety Council, 697 F.3d 

at 1228. Zillow’s belief that feed providers had properly 

licensed its uses and that its system effectively respected 

those rights was reasonable. And, as the district court 

observed, “[t]he record suggests no reason to conclude that 
VHT, INC. V. ZILLOW GROUP 45

Zillow maintained that position in bad faith, and Zillow’s 

non-infringement contention proved accurate as to most of 

the images at issue in this lawsuit.”

We reach the same conclusion as to whether Zillow 

recklessly disregarded or willfully blinded itself to its 

infringement. In reaching an opposite conclusion, the 

district court observed that Zillow did not “perform[] further 

investigation into the rights each [feed provider] possesses,” 

nor did it “t[ake] responsive measures to obtain further 

information” after VHT provided the minimal notice of 

potential infringement. That conclusion is at odds with the 

evidence, for the reasons outlined above. 

VHT’s argument that Zillow, a sophisticated business 

with a robust legal team, should have known that its feed 

provider license agreements were invalid is unavailing. 

VHT argues that when Zillow saw the non-exclusive grant 

of rights in VHT’s unsigned form contract, showing that the 

feed providers did not have a right to sublicense, Zillow 

should have known the licenses were invalid. Despite 

requests for such information, Zillow did not have access to 

VHT’s executed licenses with the feed providers who 

furnished VHT’s photos to Zillow. Access to a blank form 

contract (that the district court earlier found ambiguous as a 

matter of law) is not enough. We conclude that substantial 

evidence does not show Zillow was “reckless or willfully 

blind” as to its infringement. We reverse the district court 

and vacate the jury’s finding of willful infringement. 

IV.Conclusion 

We affirm the district court’s summary judgment in 

favor of Zillow on direct infringement of the Listing 

Platform photos. With respect to direct liability on the Digs 

photos, we affirm the district court’s grant of judgment 
46 VHT, INC. V. ZILLOW GROUP

notwithstanding the verdict on the 22,109 non-displayed 

photos and the 2,093 displayed but not searchable photos. 

We uphold summary judgment in favor of VHT on the 3,921 

displayed, searchable photos. 

We affirm the district court’s judgment notwithstanding 

the verdict on secondary liability, both contributory and 

vicarious, on the Digs photos. 

We reverse the district court’s denial of judgment 

notwithstanding the verdict on the issue of willfulness and 

vacate the jury’s finding on willfulness. 

We remand consideration of the compilation issue to the 

district court. 

Affirmed in part, reversed in part and remanded. 

Each party shall pay its own costs on appeal.