The National Association of Realtors (NAR) recently posted 3 Tips to Avoid Copyright Claims When Using Floorplans, and their timing seems interesting.
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The article refers to the copyright infringement case Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., which argues that real estate companies cannot create floorplans for the homes they market without the copyright owner's authorization.
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In 2019, the district court initially granted summary judgment to the defendants (the realtors), providing them a defense under 17 U.S.C. § 120(a), which the court interpreted as extending to floor plans used in promotional materials.
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17 U.S.C. § 120(a) and (b) are exemptions from the architectural copyright law.
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Paragraph (a) excludes "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."
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Paragraph (b) states, "The owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building."
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In the case, the district court ruled that realtors who produce floor plans of homes for sale create "pictorial representations" of the home.
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However, in 2021, the Eighth Circuit Court of Appeals reversed this decision.
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The court reasoned that floorplans serve a functional purpose and are not “pictures, paintings, photographs, or other pictorial representations” of architectural works.
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As a result, the appellate court vacated the district court’s grants of summary judgment on the primary infringement claim and the contributory and vicarious infringement claims. The case was remanded for further proceedings.
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The next year, the U.S. Supreme Court denied a petition to review the case.
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The Supreme Court’s decision means that the Eighth Circuit’s ruling stands, for now, and floor plans, whether classified as “technical drawings” or “architectural plans,” are entitled to copyright protection.
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So why bring this up again?
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The United States has 13 circuit courts and one Supreme Court. Each of the 13 judicial circuits has a court of appeals.
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They don't always agree. That's when the U.S. Supreme Court gets involved. When they want to, that is.
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It feels like there have been more cases, and the courts have upheld the "pictorial representation" defense, which is possibly why the NAR is chiming in again.
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The NAR article quotes their senior council, Chloe Hecht, who says in a corresponding video, “Courts across the country are not in agreement about whether floorplans [sic] infringe on copyrighted home designs,”
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The article and the video advise realtors to do the following three things.

• Obtain and document that you have the property owner’s permission to create a floorplan [sic] when marketing the home.
• Make sure the floorplan only conveys the home’s interior layout. Do not include architectural drawings or technical plans of the home in the property listings.
• Gain extra permissions if you learn that a listed home includes a copyrighted design. Obtain the copyright owner’s written permission before creating and using a floor plan when marketing the home.

Attorney Louis Bonham teaches us in the AIBD on-demand webinar The Fundamentals of Copyright Law that a "copyright" is established when you put pen to paper (e-hem, stylus to screen).
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So, you're probably asking yourself, "Why does a realtor have to "learn" that a listed home includes a copyrighted design?"
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Good question.
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Our question is, how many times have you had a client ask you years later for permission to use your floor plan to sell their house?
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It sounds like there won't be any good answers until we can get the U.S. Supreme Court involved.
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Meanwhile, we recommend that you do your due diligence and consider the three (counter) steps recommended by the AIBD.

• Include a clause in all contracts to ensure that your client is aware of your copyright. The AIBD Designer Docs Library provides agreement samples and licensing agreement certificates. Otherwise, enlist the help of an attorney.
• Register your designs with the Library of Congress. The $35 and the hour or so of your (someone's) time could be the best investment you ever make.
• Increase your fees to include a bronze plaque indicating you're the home's designer and the copyright date. Then, have it installed in the entryway of all your homes.

Okay, that last suggestion may be going a bit too far.
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But the point is, as a designer, it's important to protect your work and ensure that you receive proper credit for your designs.
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Now, with 3D scanning cameras in almost everyone's pocket or backpack, copyright issues are even murkier.
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Copyright laws can be complex and intimidating, but it's worth taking the time to understand them and take necessary precautions.
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Let us know how we can help.
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Have a great weekend,
The A-Team