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.