IP Law Daily, COPYRIGHT—8th Cir.: Realtors’ use of home design floorplans in listings is fair use, (Jan 15, 2025)

By George Basharis, J.D.

Real estate agents can include floorplans of copyright-protected home designs in their property listings without infringing on architects’ intellectual property rights.

In a significant ruling for the real estate industry, the U.S. Court of Appeals for the Eighth Circuit has affirmed summary judgment in favor of real estate agents who were sued for copyright infringement after including floorplans in their listings of homes designed by an architect and his company Designworks Homes, Inc. The court held that creating simplified floorplans to market existing homes constitutes fair use of architectural designs because it serves a different purpose than the original designs and does not harm the architect’s market for designing and building homes (Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., No. 23-3402 (8th Cir. Jan. 14, 2025)).

The case arose after two agents included basic floorplans in their listings for homes that had been built using the architect’s distinctive triangular atrium design. The architect discovered the listings in 2017 and sued, claiming the unauthorized floorplans infringed his copyrights in the architectural designs.

The case has a complex procedural history. In 2019, a district court initially granted summary judgment to the real estate agents based on Section 120(a) of the Copyright Act, which provides certain exemptions for pictorial representations of architectural works. However, in 2021, the Eighth Circuit reversed that decision in a case of first impression, holding that Section 120(a)’s exemption applies only to artistic renderings, not functional drawings like floorplans. The appellate court remanded the case for consideration of other defenses, including fair use. On remand, the district court found the agents’ use of the floorplans was fair use, leading to the current appeal.

Fair use analysis favors real estate agents. Writing for a unanimous three-judge panel, the Eighth Circuit held that the agents’ use of simplified two-dimensional floorplans in property listings constituted fair use under Section 107 of the Copyright Act. The court conducted a detailed analysis of the four statutory fair use factors, finding that on balance they favored the defendant real estate agents.

Transformative purpose outweighs commercial nature. The court found the first fair use factor—the purpose and character of the use—weighed in favor of the agents. While acknowledging the commercial nature of real estate listings, the appellate court emphasized that the agents’ use was transformative because the floorplans served an informational purpose distinct from the aesthetic and functional purposes of the original architectural designs.

Nature of work and amount used less significant. On the second and third factors—the nature of the copyrighted work and the amount used—the court found these considerations either weighed slightly against fair use or were neutral. While recognizing that architectural designs contain protected creative expression, the court noted the agents only reproduced simplified two-dimensional aspects of the three-dimensional designs. The court emphasized that the agents' floorplans showed only layouts, dimensions, and “virtually nothing else,” finding that their copying was reasonable in relation to their legitimate purpose of supplying information to potential homebuyers.

Market impact analysis proves decisive. The fourth factor—market effect—strongly favored fair use according to the court. The panel found no evidence that floorplans in resale listings would harm Designworks’ existing markets for architectural designs and home construction. The court dismissed as speculative any impact on potential licensing markets, noting Designworks had never licensed floorplans during its nearly 30-year history.

Moreover, the court suggested the practice likely benefits architects by making their designs more valuable: “Because putting floorplans in listings for existing Designworks homes makes it less costly for potential buyers to discover the homes’ layouts and dimensions, it tends to increase the number of potential buyers willing to consider buying the homes.”

The court was particularly skeptical of Designworks' argument about potential harm from downstream copying, observing that in the 15 years since the floorplans first appeared online, there was no evidence that any builder had attempted to construct homes using them. The court also rejected what it called a “circularity” argument, explaining that the mere theoretical possibility of licensing revenue cannot be used to defeat fair use, as this would make the doctrine meaningless.

The ruling provides important clarity for real estate agents who routinely include floorplans in property listings. The court's analysis suggests that simplified floorplans used to convey factual information about existing homes will generally qualify as fair use, particularly where there is no demonstrated harm to the architect's markets.

Procedural resolution. The court also upheld the district court's denial of Designworks' request to reopen discovery on the fair use issue following an earlier remand. The panel found no abuse of discretion, noting that fair use had been at issue since the pleading stage and Designworks failed to identify any new evidence it might obtain through additional discovery.

The Case is No. 23-3402.

Judge: Arnold, M.

Attorneys: Kenneth N. Caldwell (Caldwell Law Firm) for DesignWorks Homes, Inc. William B. Kircher (Avek LP, LLC) for Columbia House of Brokers Realty, Inc.

Companies: DesignWorks Homes, Inc.; Columbia House of Brokers Realty, Inc.

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