Judge reaffirms agents’ right to create listing floor plans
Two cases that attracted national attention move toward a quiet conclusion, with a judge ruling that floor plans aren’t the same as building designs.
Floor plans in real estate listings are "fair use" and do not violate an architect's copyright, a Federal Court has ruled.
US District Court Judge Brian Wimes issued his second summary judgment in favor of the real estate brokerages in late September, after an appeals court rejected his original reasoning in the case.
What's the case about? Actually there are two separate and nearly identical cases. Designworks Homes, a custom home design firm owned by Charles James, sued two Missouri real estate firms for copyright infringement in 2018.
James claimed that real estate listings for the resale of two homes he designed violated his copyright. Designworks designed and constructed a home using a specific feature described as a "triangular atrium design with stairs" in 1996. The company used the design in at least four other homes.
What role did real estate agents play? When the owners of two of the Designworks homes put them on the market, their respective real estate agents took interior measurements and used them to create a floor plan with the listing.
Originally, Wimes ruled that the floor plans fell under an exception for architectural copyright that allows for pictures and drawings of buildings that are in public view. The 8th Circuit Court of Appeals rejected that, but left the door open to a different approach.
Enter "fair use." Wimes ruled that floor plans in a real estate listing constitute fair use of a home design because they aren't building plans, which can be copyrighted. Even if listings floor plans provide measured dimensions, they can't be used to "replicate the Design embodied in the structure."
Why does it matter? When it first emerged, the issue was seen as problematic for consumers and agents alike. The National Association of Realtors filed a brief with the Supreme Court, saying that if floor plans infringe on copyright, it "puts countless consumers at risk of costly, burdensome litigation for making a floor plan of their own home" and "threatens a critical tool of transparency for potential home buyers." (The Supreme Court declined to address the topic.)
Standard components of a home — kitchen, living room, window, doors etc. — aren't protected by copyright in any case, the judge noted in his September ruling, making the triangular atrium feature the only part of the design that was potentially at issue in this case.