When Images Are Not Images: Floor Plans Created By A Real Estate Agent Goes Beyond Copyright Infringement For Graphic Images | McDermott Will and Emery

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In examining whether the Architectural Copyright Act of 1990 protects the creation of floor plans, the US Court of Appeals for the Eighth Circuit ruled that such technical drawings, created for practical rather than artistic purposes, are not subject to statutory exception. the exclusive right to control paintings, paintings, photographs or other graphic representations of their work from architects. Designworks Homes, Inc. and Others v Columbia House of Brokers Realty, Inc. and etc., Case No. 19-3608, 20-1099, -3104, 20-3107 (8th District, August 16, 2021) (Arnold, J.)

The facts of this case are relatively simple: in the course of selling engineered homes, builders hired real estate agents to create floor plans for use in their listings. The home designers themselves registered the copyright of the homes and then sued the homeowners and their real estate agents for copyright infringement.

The question for the Court was whether 17 USC § 120 (a), which was intended to limit the scope of copyright protection for architectural works, applied to floor plans developed by real estate agents. Section 120 (a) excludes from the scope of copyright in an architectural work “the right to obstruct the production, distribution or public display of paintings, paintings, photographs or other graphic representations of a work”. The District Court ruled that the floor plans fall under the Section 120 (a) exception and are thus not copyrighted.

The Eighth District disagreed. Using numerous canons of statutory construction, the Court ruled that the functional floor plans were neither images nor “other graphics” within the meaning of the law. Based on dictionaries from the 1990s, the Court concluded that while the floor plan could have been an image, the context showed otherwise. For example, Congress used the phrase “technical drawings” elsewhere in copyright law; thus, if Congress intended to exclude them here, it knew how to do it. Moreover, the types of floor plans considered here, in the Court’s view, were not similar to the other listed categories of items for which copyright protection was limited because the plans had no artistic expression.

Practical note: Not all hope is lost for the builder or developer. While the Eighth Circuit declined to explicitly consider other remedies, it clarified that there are others that can be easily applied, including the doctrine of fair use.

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