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.