December 15, 2022 Practice Points

Does Using Floor Plans in Real Estate Listings Violate Copyright Law?

It might.

By Stu Richeson and Andrew Coffman
The safest course is not to use floor plans in advertisements.

The safest course is not to use floor plans in advertisements.

David Sacks via Getty Images

Brokers and agents should be wary about using floor plans in marketing unless they have written permission from the owner of the copyright in the architectural work.

Since 1990, the Copyright Act has protected architectural structures, but that protection is limited. Architectural plans were always entitled to copyright protection. This new protection covered the actual structures. However, it was generally understood that protection did not extend to floor plans, drawings of a constructed building used to market and sell the building.

Section 120 of the Copyright Act specifically states, “The 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.”

In 2021, the Eighth Circuit Court of Appeals toppled that understanding. Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021). The court decided the statute only eliminated liability for artistic reproductions but not functional reproductions. In interpreting the language of Section 120, the court found that “pictorial representations” were meant to cover only those representations that were similar to paintings or photographs and not more technical representations.

The agents asked the Supreme Court to hear their case. A number of real estate industry groups have filed briefs urging the Supreme Court to take up the case. A group of copyright scholars filed a brief explaining that Congress only granted protection to architectural works because that protection was mandated by treaty obligations. Those scholars went on to state that Section 120 was supposed to make clear that this protection only existed for buildings and not any drawings or depictions of those buildings, whether artistic or technical. Despite this, the Supreme Court denied cert.

Only one court outside the Eighth Circuit has cited the Designworks decision. In Kipp Flores Architects, LLC v. AMH Creekside Dev., LLC, the Western District of Texas rejected the Eighth Circuit’s reasoning. Case No. SA-21-CV-01158-XR, 2022 U.S. Dist LEXIS 142279, at *19–23 (W.D. Tex. Aug. 9, 2022). That lone decision offers little comfort to attorneys seeking to advise clients outside the Eighth Circuit.

Practical Advice for Brokers and Agents

Until this issue is resolved, the safest course is not to use floor plans in advertisements, including floor plans that have been used in previous advertisements for the same property. If the Supreme Court agrees that there may be liability for making drawings of completed buildings, the use of floor plans without a license could open brokers and agents to copyright infringement claims, including claims for statutory damages of up to $150,000 and attorney fees.

Practical Advice for Owners of Architectural Copyrights

Except in exceptional circumstances where real and significant damage is done, it is probably not worth it to sue agents or brokers. Whether any suits would be successful is unclear. Every other court that has addressed this issue has come to the conclusion that floor plans used in real estate listings do not violate the copyright in the architectural work. An unsuccessful suit could make a copyright owner liable for the defendant’s attorney fees. Additionally, any lawsuit is likely to frustrate brokers and agents and may create unintended consequences for future properties.

Stu Richeson is an associate with Phelps in New Orleans, Louisiana. Andrew Coffman is an associate with Phelps in Tupelo, Mississippi.

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