Eighth Circuit to Realty Companies: Try Fair Use Next Time to Legally Publish Floorplans

Images taken from court documents

The U.S. Court of Appeals for the Eighth Circuit yesterday reversed a Missouri district court’s grant of summary judgment for a group of real estate companies relating to copyright infringement claims brought by an architect over floorplans. While the appeals court said that another defense might well be available to the companies, the text of the statute, the broader statutory context, and the legislative history all suggest that “floorplans” were not intended to be encompassed by Section 120(a) of the U.S. Copyright Act.

The case was originally brought by architect Charles James and his company, Designworks Homes, Inc., who built homes in Columbia, Missouri that were later sold by the homeowners with the help of realty companies House of Brokers Realty, Inc. and The Susan Horak Group Re/Max Boone Realty. In the course of listing the homes, these companies produced and published sketches of the homes’ floorplans. James claimed these floorplans infringed his copyrights, but the defendant realty companies moved for summary judgment that Section 120(a) of the U.S. Copyright Act provided a defense to liability. That statute says:

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.”

The United States District Court for the Western District of Missouri – Jefferson City agreed with the defendants and granted summary judgment in their favor.

Statute Doesn’t Contemplate Floorplans

On appeal, the Eighth Circuit first noted that the district court’s analysis of Section 120(a) was not very detailed and that James’ arguments about why the statute did not provide a defense to the defendants were initially “somewhat inchoate”. The realtor defendants asked the appellate court not to consider James’ more “crystallized” arguments on appeal, but the court said, “we think this strategy represents more a ‘shift in approach’ than a creation of an entirely new issue that we should decline to review.” In any case, the court explained that it has discretion to review new issues on appeal because the case “presents a quintessential matter of law—the interpretation of a statute.”

In then examining the text of the statute and the statutory context, the eighth circuit found that floorplans should not be considered “pictures”. The court said:

The broader context of the copyright statutes as a whole reveals that Congress knew how to describe floorplans with more specificity than by simply referring to them as “pictures.”…. The floorplans here certainly could be characterized more comfortably as “technical drawings” or “architectural plans” than as “pictures.” Congress therefore had more appropriate terms at the ready but did not use them. As we’ve explained, “when Congress does not adopt obvious alternative language, the natural implication is that it did not intend the alternative.”

Citations omitted

The court also rejected the argument that the floorplans fit into Section 120(a)’s category of “other pictorial representations” based, again, on the broader statutory text and context. For example, congress could have used terms employed elsewhere in the copyright statutes to ensure floorplans were included in Section 120(a); the terms used in the section—”pictures, paintings, photographs, or other pictorial representations of”— “all connote artistic expression,” in the court’s opinion, whereas floorplans serve a functional purpose; and because “Section 120(a) applies only when ‘the building in which the work is embodied is located in or ordinarily visible from a public place,’” which does not generally apply to floorplans.

The Fair Use Door Stands Open

The realty companies warned the court that a ruling against them would mean that “homeowners could not freely draw the outline of their own homes for any purpose, including remodeling projects, appraisers could not create floorplans of homes for appraisals, [and] children could not draw the shape of their own homes.” But the court dismissed this, explaining that Section 120(a) is “just one of several, potentially overlapping statutory defenses to copyright infringement.” Specifically, the fair use defense may apply, but the court left that up to the district court to consider on remand. “Just because we close one door to protection from liability doesn’t mean that others aren’t standing open,” wrote the court.

While it conceded one of the amici’s points that contacting the owners of copyrights in architectural works to get permission to create floorplans would be untenable, the court said, “our task ‘is not a free-ranging search for the best copyright policy, but rather depends solely on statutory interpretation.’ See Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017). To the extent amicus argues that the benefits of a broader statute would reduce or eliminate certain costs, it should direct its argument to the political branches.”

Thus, the district court’s grants of summary judgment to defendants on the primary infringement claim, as well as on the claims for contributory and vicarious infringement, were ultimately reversed, the court’s orders awarding the defendants costs and attorney’s fees vacated, and the case was remanded for further proceedings.