As anyone who has shopped for or sold a home is aware, inclusion of floor plans in real estate marketing materials is a common and long-standing practice.  This practice, however, may run afoul of copyright law under a 2021 appellate decision which the U.S. Supreme Court declined to review on June 27, 2022.

In August 2021, the U.S. Court of Appeals for the Eighth Circuit held in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., that floor plans are “technical drawings” or “architectural plans” entitled to protection under the Copyright Act.  See 9 F. 4th 803 (8th Circuit 2021).  The case arose when an architect sued a real estate broker (who had been hired by the owner of a house designed and built by the architect) for including in the home’s listing a computer-aided sketch of the home’s floor plan.  In reaching its conclusion that floor plans are protectable under the Copyright Act, the Eighth Circuit was called upon to interpret §120(a) of the Copyright Act, which states that “[t]he copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”  While the trial court in Missouri found that floor plans were “pictorial representations” within the scope of §120(a), the Eighth Circuit disagreed.

In reaching this decision – which the U.S. Supreme Court has left undisturbed – the Eighth Circuit closely analyzed the relevant statutory language in the Copyright Act.  It concluded that:

We think that the terms Congress used in § 120(a) have a certain quality in common—they all connote artistic expression. Recall that that section speaks of “pictures, paintings, photographs, or other pictorial representations of” a work. Pictures (when properly interpreted as already discussed), paintings, and photographs connote expression. We think that pictorial representations, when read together with these other terms, most likely refer to pictorial representations created for similar reasons. Floorplans like the ones here, on the other hand, serve a functional purpose. Though it’s conceivable that a floorplan could be created for artistic purposes, we deal here with floorplans that all seem to agree were generated for the practical purpose of informing potential buyers of home layouts and interiors, and, more broadly, to help sell homes. They do not share the common quality that the other terms possess.

9 F. 4th at 808 (emphasis added).

In the broker’s unsuccessful petition asking the U.S. Supreme Court to review the case, it argued that floor plans are routinely used by millions of people in the housing industry and the Eighth Circuit’s ruling holds home sellers to an unreasonable standard.  Focusing on the difficulty of identifying the designers of older houses and the fact that copyright protection extends for 70 years past the life of the author, the broker argued that the Eighth Circuit’s opinion “has exposed hundreds of thousands of real estate companies and agents to suits for millions of prior advertisements featuring floor plans, each potentially resulting in a judgment of hundreds of thousands of dollars in statutory damages and attorney’s fees.”  As demonstrated by the Supreme Court’s refusal to hear the case, this argument did not carry the day.

To date, the Eighth Circuit is the only federal appellate court to explicitly hold that floor plans are entitled to protection under the Copyright Act.  It remains to be seen whether other appellate courts will follow suit, or whether a split in the circuits will develop.  If a circuit split develops, the Supreme Court may eventually provide guidance on this issue; until then, however, Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., provides a basis for imposing copyright infringement liability for the unauthorized use of floor plans in real estate marketing materials.

O’Hagan Meyer’s Intellectual Property and Architect/Engineers and Construction practice groups will be closely monitoring any developments in this area of the law.  If you have any questions or are interested in additional information regarding the subject matter of this alert, please contact Dana Finberg, Hobie Andrews, Tim Eavenson, or the O’Hagan Meyer professional who handles your matters.