Realtor row: Reproducing floor plans not included in copyright exemption, rules 8th Circuit

The 8th U.S. Circuit Court of Appeals ruled on Aug. 16 that real estate agents can’t rely on a copyright exemption for “pictures” to defend against claims that they reproduced floor plans of a Columbia, Missouri home. However, the appeals court said the defendants may have other defenses when the case returns to the district court.

Plaintiff Charles James built a “triangular atrium design with stairs” unique to two Columbia, Missouri, homes through his business, Designworks Homes. The homeowners later hired real estate companies, Columbia House of Brokers Realty, and Susan Horak, who operates The Susan Horak Group Re/Max Boone Realty, to help sell those homes.

House of Brokers hired a contractor to measure and produce a computer-aided sketch of the home’s floor plan, while Horak measured the home’s dimensions herself and drew the floor plan on graph paper. The homes’ online listings included images of these floor plans for public viewing by potential buyers.

Designworks sued the real estate companies and involved affiliates and agents for copyright infringement in 2019, on grounds that they created and published the floor plans without James’ authorization.

Andrew Grimm, one of Designworks’ attorneys from the Digital Justice Foundation (DJF), declined to comment on the decision because this is an ongoing case. But in DJF’s appellate brief he argued against the defendants’ position that a rights holder like James is not entitled to compensation.

“It’s all the more unreasonable because House of Brokers already paid a third party to produce the infringing floor plan,” Grimm wrote.

The defendants’ attorneys claimed that a floor plan counts as a “pictorial” work, which is an exemption from the 120(a) statute of the Copyright Act, rather than a “graphic” work. As per that statute, the copyright in a constructed architectural work does not include the right to prevent someone else from making, distributing or publicly displaying pictures of that work, as long as the building is located in or normally visible from a public place.

The U.S. District Court for the Western District of Missouri in Jefferson City agreed. Judge Brian Wimes granted the defendants summary judgment on the infringement claims, and also granted the plaintiffs’ claims for contributory and vicarious copyright infringement. The court later awarded costs and attorneys’ fees to the defendants.

A “shift in approach” by Designworks’ legal representation, Digital Justice Foundation, prompted Judge Morris S. Arnold and fellow Judges Raymond W. Gruender and David R. Stras of the 8^th Circuit Court to look more closely at Designworks’ appeal.

The National Association of Realtors weighed in with an amicus brief in support of the defendants, stating that drawing floor plans was a common practice in selling and remodeling homes.

“Appellants’ sweeping views of copyright law — and correspondingly narrow interpretation of the [section] 120 exemption — have the potential to severely limit the rights of property owners and to create inappropriate hurdles for professionals,” wrote J. Nikki Warr, one of the two attorneys from Stinson who crafted the amicus brief on behalf of the association.

Patrick Kuehl from Rimôn Law is representing the defendants. He has filed a motion for rehearing, and said that home appraisals commonly create floor plans to sell or remodel homes.

“If allowed to stand, it affects every potential seller in the country, not just Realtors,” Kuehl said.

The court determined that 120(a) does not include floor plans, since Congress did not say this as explicitly as it had in other sections of that statute. It also noted that Congress did not appear to be directing the exemption at floor plans, which are accessed and viewed from the inside rather than from a public place.

“We think that pictorial representations, when read together with these other terms, most likely refer to pictorial representations created for similar reasons,” Arnold wrote in the 8^th Circuit opinion. “Floor plans like the ones here, on the other hand, serve a functional purpose.”

Example images from the plaintiffs’ reply briefs, which the 8th Circuit reproduced in the opinion, further illustrate the distinction. The reply brief included three depictions of the U.S. Supreme Court building — a photograph, a drawing and a painting — as well as a building floor plan of the courthouse.

“One of these images is not like the others,” Arnold wrote.

Addressing Realtors’ concerns, the 8^th Circuit did not rule out alternative arguments for when the case returns to district court.

One alternative is the statutory text of fair use, which permits the use of portions of copyrighted content without the owner’s permission. However, the defendants had previously found a U.S. House of Representatives report showing that Congress did not find this a suitable defense, and the district court had viewed it as a weaker argument than copyright exemption.

The case is Designworks Homes Inc. et al. v. Columbia House of Brokers Realty et al.,19-3608.