Does Using Floor Plans in Real Estate Listings Violate Copyright Law?
It might. 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 Federal Court of Appeals covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota toppled that understanding. The court decided the statute only eliminated liability for artistic reproductions, but not functional reproductions. In interpretating 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.
The agents have now 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. If the scholars are correct and the Supreme Court takes up this matter, the real estate industry may be able to return to its previous understanding of the allowable uses of floor plans. Until then, brokers and agents should be careful.
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’s 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’s fees. Additionally, any lawsuit is likely to frustrate brokers and agents and create unintended consequences for future properties.
Our Intellectual Property Practice Group will continue to monitor this case. Please contact Andrew Coffman or any member of Phelps’ Intellectual Property team if you have questions or want advice and guidance.
