Dear Doc:
My wife and I are two of the millions of Internet users who browse real estate websites like Zillow.com, Redfin.com, and Trulia.com. We see a lot of pretty pictures and virtual video tours, but not floor plans, which makes our search for our dream home very frustrating. Why aren’t there any floor plans on these websites?
Signed,
Just Looking
Dear JL:
The reason that you don’t see floor plans on these websites is, like every question people ask the “Doc”, complicated.
In 1990, Congress amended the Copyright Act (which, if you’ve been reading the Doc, you should know by now is 17 U.S.C. §101 et seq.) to include protection for architectural structures. You see, the plans that architects and engineers draw for constructing buildings were already covered by copyright law. This new provision covered the buildings themselves.
But, what Congress giveth with the right hand it usually takes away with its left. The protection specifically was limited, and did “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.” (17 U.S.C. §120(a))
Huzzah! Courts (and most sane people) read this law as allowing the use of floor plans of buildings that, like most homes, are visible from the street. All was well in the real estate world.
But, then, the United States Court of Appeals for the Eighth Circuit [the appeals court that covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. (Do we really need two Dakotas, asks the Doc, knowing full well that we have them because of Republicans gaming the House of Representatives in 1889, but that’s another story entirely…)] spoke up. In the case of Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., No. 19-3608 (8th Cir. 2021), the Court interpreted the statute’s term “pictorial” as meaning only artistic, and not functional representations of the building. Never mind, said the Court, that two other (lower) courts had already found floor plans to be okey-dokey. [(See Sorenson v. Wolfson, 96 F. Supp. 3d 347, 365 (S.D.N.Y. 2015); Morgan v. Hawthorne Homes, Inc., No. 04-1809, 2009 WL 1010476, at *12 (W.D. Pa. Apr. 14, 2009)]
The Eighth Circuit heard arguments from many “amici” (friends of the court) in briefs pointing out that the second clause of §120 allows alteration or even destruction of buildings, and that these often require the production of floor plans, but the judges were unmoved (sort of like many buildings, but not double-wides with which the judges may have been intimately familiar.)
Said the Court:
[W]e hold that § 120(a) does not provide a defense to copyright infringement to real estate companies, their agents, and their contractors when they generate and publish floorplans of homes they list for sale. Our decision does not preclude the district court on remand from considering whether some other defense might apply or whether the plaintiffs have demonstrated a claim of copyright infringement in the first place.
So, good luck finding floor plans online (or anywhere else) for that Hawaii dream home! Until the Supreme Court gets around to clarifying (or just making a further mess of) this issue, the safe bet is to abort any use floor plans or be sure that you have the permission of the owner of the copyright in the building (or only deal in buildings older than 95 years, since those copyrights have expired)…even in states not located in the Eighth Circuit! Just treat the holding of the Eighth Circuit as gospel, and you’re good to go, especially in the Supreme Court.
The Eighth Circuit case has been appealed to the Supreme Court but, of course, it’s anyone’s guess as to whether and when the Supremes will deign to hear it.
Have an intellectual property question that requires an answer? The attorneys at LW&H are able to help you plan to get in on the ground floor (but not to put a floor plan on the ground, as it were…)
Until next month,
The “Doc”
— Lawrence A. Husick, Esq.