We’ve been getting questions on Designworks Homes, Inc. v. Thomson Sailors Homes, LLC. Sometimes referred to as the floor plans and copyrights case. This is a case from the 8th Circuit that went all the way to the Supreme Court of the United States. If you would like to learn more about the facts of the case and the issue presented, we have a podcast episode (and another new one will be coming out soon).

You may notice that the linked podcast is from over a year ago, but now we have been informed of the conclusion of the case. As a brief recap, this case was about a real estate licensee making their own floor plans and then being sued for copyright infringement.

The legal issue that was appealed all the way to the Supreme Court of the United States (SCOTUS) was whether there was a defense under the Architectural Works Copyright Protection Act (“AWCPA”). In relevant part, 17 U.S.C. Section 102(a) provides a defense for pictures, paintings, photographs, or other pictorial representations of the work. The 8th Circuit rejected this defense and SCOTUS did not grant writ which means the 8th Circuit’s decision stands.

Now this means there may not be a defense under AWCPA if this case comes before the 4th Circuit. However, as the 8th Circuit’s decision hinted, the Fair Use Doctrine was likely a more valid defense. After SCOTUS denied the writ, the case returned to the trial court for the other claims and defenses, and they did rule the floor plans were fair use.

So, why does this matter to YOU?

In short, the Fair Use Doctrine requires you to engage in more lengthy litigation than just having a defense under the AWCPA. NAR is working on possibly extending the AWCPA to include floor plans or alternative legislative means to protect floor plans from this type of litigation. But in the meantime, there are ways that you can limit your exposure.

These are suggestions, and as always, you should contact an attorney to get legal advice.

1. Seek permission from the architect or company that owns the copyrights prior to using them or creating floor plans.
2. Use other means to achieve the same result (such as pictures or videos of the inside of the property).
3. Protect yourself legally when using third parties to create designs. Contact an attorney when negotiating a contract to make sure you are legally protected.