It’s okay to include a floor plan in a listing, ruled an appeals judge. He said it’s “fair use” and doesn’t infringe on architectural-design copyright laws.
KANSAS CITY, Missouri – The ruling by a U.S. district appeals court protects a common marketing practice to sell homes.
Real estate professionals can continue to use floor plan drawings when marketing listings, a common practice that had been called into question. A federal court’s recent ruling protecting this practice is a major victory for the real estate industry, which has long relied on two-dimensional renderings to offer prospective buyers an idea of a home’s layout.
A series of lawsuits accused real estate agents of violating copyright laws when using floor plan drawings. The ruling by the U.S. District Court for the Western District of Missouri clarified that the use of recreated floor plans falls within “fair use” and does not infringe on architectural design copyright laws.
“Consumers are wanting this type of information when they’re starting their property search,” says Brian Toohey, CEO of the Columbia Board of Realtors® in Columbia, Missouri. Toohey says many of his members were becoming nervous to use floor plan drawings because of the lawsuits. “Now, with this ruling, they can include floor plans in their marketing without the fear of being sued,” he says.
NAR joined coalition to stress importance
Real estate groups banded together to dispute the merits of the lawsuits – even petitioning the Supreme Court to weigh in on the case. In 2022, the National Association of Realtors® (NAR) and 17 other organizations, including Clear Capital, CoreLogic, Zillow Group and the American Property Owners Alliance, submitted an amicus brief to Supreme Court justices.
The groups argued that “many homebuyers rely on floor plans in real estate listings to decide whether to purchase a residence, and their ability to secure financing for that transaction is often contingent on an appraisal that requires the creation of a floor plan.” Using independent floor plan renderings without the fear of copyright infringement is critical for Realtors and homeowners, as well as for purposes like appraisals, renovations and home sales, the groups said.
The Supreme Court declined to hear the case.
About half of homebuyers say floor plans are a valuable website feature when shopping for properties online, according to the NAR’s 2023 Home Buyers and Sellers Generational Trends report. In fact, nearly 80% of prospective buyers say they’re more likely to view a home if a listing includes a floor plan they like, according to a 2022 survey from Zillow.
Setting a precedent
The federal court’s ruling stems from nearly identical lawsuits filed in 2019 by DesignWorks Homes Inc., a custom-home design firm, which alleged copyright infringement against two Missouri real estate brokerages that recreated a floor plan when selling one of its homes. DesignWorks argued that the floor plan was entitled to “maximum” copyright protection because it was an unpublished, award-winning creative work. The design firm claimed the brokerages did not seek its permission to use the design and said making copies of the floor plan publicly viewable posed privacy issues for the homeowners.
In 2021, a U.S. Court of Appeals for the Eighth Circuit ruled in favor of the architects, saying the use of independent floor plan renderings should not be exempt under the federal Copyright Act. The brokerages appealed the decision, sending it to the U.S. District Court, which has now handed down its ruling.
The district court’s ruling, which is still eligible for appeal to a federal court of appeals by the architects, says that floor plans represent an artistic and structural rendering of the residential home. The brokerages “did not copy and publicize the design to reduce the design’s marketability,” U.S. District Judge Brian Wimes writes in his opinion. The purpose of the floor plan was to provide information to prospective homebuyers of the interior layout on behalf of the homeowners, who hired the agents to sell the house, Wimes added.
“Although fair use is determined on a case-by-case basis, these rulings are helpful to the industry as a whole because a judge in a future case with similar facts is likely to follow this ruling,” says defense attorney Patrick Kuehl of Rimon Law in Kansas City, Mo., which represented the brokerages.
© 2023 National Association of Realtors® (NAR)
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