Cease-and-Desist Letter Leaves the McMansion Hell Blog in Purgatory [UPDATED]

A McMansion Hell image: the Great Room McHenry County, Illinois (© Kate Wagner, mcmansionhell.com)

The irreverent architecture criticism blog McMansion Hell has gone offline after its creator, Kate Wagner, received a cease-and-desist letter yesterday from online real estate database Zillow. In the letter, which Wagner posted on Twitter, a lawyer for Zillow accuses her of violating the site’s terms of use by “reproducing, modifying, distributing, or otherwise creating derivative works from any portion of the Zillow Site.”

Many of the images featured on McMansion Hell, which Wagner augments with clever and derisory commentary about the architectural excesses of suburban design, are sourced from Zillow. In its letter, the lawyer for the real estate listings aggregator alleges that Wagner’s site “may violate the federal Computer Fraud and Abuse Act and state laws prohibiting fraud and interference with Zillow’s business expectations,” implying that Wagner’s blog is having a detrimental effect on Zillow’s business.

“No, we don’t own the photos,” Emily Heffter, a PR person for Zillow, told The Verge. “We can’t give away what is not ours. It is our legal responsibility to those partners to enforce the contracts we have with them.”

“Zillow’s suggestion that it’s a CFAA violation to take pictures from their public website is very weak,” George Washington University law professor Orin Kerr told Buzzfeed News. “That’s probably why they made it only in passing.”

Though Wagner took her site offline on Monday, she has said in subsequent tweets that it will be archived and back online soon. “This blog (and the freelancing gigs I’ve received because of it) has been my livelihood for a little under a year now, so receiving a notice like this is, of course, utterly terrifying,” Wagner said in a statement. “There have been no major issues regarding copyright complaints regarding the blog until this moment. It is my most sincere hope that this issue is resolved as amicably as possible.”

Hyperallergic contacted Wagner, who referred us to her attorney, Electronic Frontier Foundation Staff Attorney Daniel Nazer. “We are representing Kate Wagner and will be sending a detailed response to all of Zillow’s contentions soon,” Nazer said in a statement. “We hope that Zillow comes to appreciate that it made a mistake and withdraws its threat.”

The same day she received the letter from Zillow and took her site offline, Wagner — a 23-year-old graduate student at Johns Hopkins University — was featured in a Washington Post video and article about the resurgence in the real estate market for McMansions. “These houses are kind of disfigured, because they were built from the inside out, to have the most amenities to sell faster,” she told the Washington Post. “It’s about invoking the symbolism of having a lot of money, but not spending a lot of money on the house.” The article also cites Zillow sales data extensively.

According to The Verge, Wagner is currently planning an e-book version of her blog, for which she plans to pay for licensed McMansion photos. She has also launched a crowdfunding initiative on Patreon.

Update, 6/29/2017, 4pm: In a response posted on the Electronic Frontier Foundation website, Wagner’s attorney, Daniel Nazer, refuted Zillow’s accusations. “Zillow’s demand letter made a number of highly dubious legal claims,” he wrote. “For example, Zillow argued that Wagner does not make fair use of the photographs she annotates. Importantly, Zillow does not own, and cannot assert, the copyright in these photos. But even if it could, McMansion Hell’s annotation of photographs for the purpose of criticism and commentary is a classic example of fair use.” The response notes that Wagner no longer plans to use images from Zillow on her blog.

An accompanying letter, sent by Nazer and Wagner to Zillow’s counsel, refutes the real estate website’s claims point by point. “Given this, we sincerely hope Zillow will have the good sense not to trouble a court of law with this matter,” it concludes. “However, if Zillow does intend to file suit, please be assured that our client is prepared to defend herself against your spurious claims.”

McMansion Hell is back online.

Update, 6/29/2017, 6:30pm: Zillow has dropped its threat of legal action against Wagner. “We have decided not to pursue any legal action against Kate Wagner and McMansion Hell,” the company’s public relations manager, Emily Heffter, told the Architect’s Newspaper. “It was never our intent for McMansion Hell to shut down, or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners – the agents and brokers who entrust us to display photos of their clients’ homes.”