We have had a lot of calls recently from Sellers inquiring about posting floor plans so we decided to write another blog on the subject. Homeowners do not own the floor plans of their homes. Posting these plans on any media, whether in printed magazines, newspapers, or online platforms like Facebook, Instagram, YouTube, Zillow, or various real estate websites, can expose homeowners to legal action. Architects or builders who created or own the designs can sue for legal damages. This applies to For Sale By Owner sellers, those using Flat Fee MLS Listing Services, or Traditional Real Estate Companies.
In August 2021,the Eighth Circuit U.S. Court of Appeals ruled that anyone replicating images of floor plan reproductions of an existing building could be liable for copyright infringement under architectural copyrights.
Homeowners use floor plans for various purposes, such as making home buying decisions, planning upgrades, and obtaining permits for renovations. Floor plans are also required for appraisals when securing financing, and real estate professionals use them for marketing homes to ensure accuracy and transparency.
While actual plans have always had copyright protection, the 1990 Copyright Act extended this protection to architectural structures. It was previously understood that this protection did not cover floor plans or drawings used to market and sell buildings. Section 120 of the Act states, “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.”
This understanding changed in 2021 when the Eighth Circuit Court of Appeals ruled in the case between Designworks Homes, Inc. and Columbia House of Brokers Realty, Inc. The court concluded that the term “pictorial representations” in Section 120 referred only to representations similar to paintings or photographs, not technical representations.
On April 7, 2022, the National Association of Realtors filed an amicus brief with the Supreme Court, arguing that this ruling misinterprets federal law by allowing copyright lawsuits against appraisers, homeowners, real estate professionals, and others.
Without written permission from the architect or builder who owns the architectural renderings, homeowners should refrain from using floor plans in any advertising or marketing, even if they have been used previously. If the Supreme Court rules that creating drawings of existing structures is liable, using floor plans without appropriate permission could result in copyright infringement lawsuits against homeowners, real estate professionals, brokerage firms, and others, with potential damages exceeding $100,000 plus legal expenses per occurrence.
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