Copyright and Floor Plans in Real Estate Marketing

Rights to work, aka copyrights, is a highly litigated topic in many industries, including real estate.  Indeed, the use of floor plans in real estate marketing has become the focal point of legal battles, raising questions about potential copyright infringement on architectural works. Two federal court cases in Missouri, Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., et al. and Designworks Homes, Inc. v. Horak, et al., shed light on the complexities surrounding this issue.

The cases involve an architect and his company, Designworks Homes, Inc., who designs homes in Missouri. When the homeowners enlisted real estate brokers to sell their properties, floor plans became a key element in the marketing materials. The architects sued the brokers in 2018, alleging copyright infringement, but the initial court ruling favored the brokers, citing an exemption in the Copyright Act for architectural works.

Upon appeal, the U.S. Court of Appeals for the Eighth Circuit reversed the decision, stating that floor plans did not fall within the exemption. The cases then returned to the district court to assess the brokers’ alternative argument that the floor plans constituted fair use. In September 2023, the district court again ruled in favor of the brokers, emphasizing the functional nature of the floor plans in real estate transactions and their creation with homeowners’ consent.

Despite these favorable rulings for the homeowners and brokers in these cases, it is reasonable to believe that the issue is not resolved.  Based thereon, getting rights designated in the contract to clarify the copyright holder should be a new best practice.