The National Association of REALTORS® is leading a large coalition of stakeholders in the real estate industry—property owners, real estate professionals, appraisers, portals, valuation, and public records companies, and others—that is urging the Supreme Court to review and overturn a federal appeals court threatening copyright liability for the use of floor plans in the sale of a home. Realtor.com® operator Move Inc. and the Council of Multiple Listing Services also have each filed briefs in support of reversing the lower court’s opinion.
On Thursday, the coalition filed an amicus curiae (friend of the court) brief with the nation’s highest court, seeking a review of a 2021 Eighth Circuit ruling in Designworks Homes Inc. v. Columbia House of Brokers Realty. Designworks and its owner, Charles James, claimed two real estate companies in Columbia, Mo., had violated copyright law when they created floor plans to assist in the sale of homes that James had built.
A U.S. District Court had ruled in favor of the real estate companies, concluding that a statutory defense shielding the creation of “pictures” or “other pictorial representations” of architectural works covered floor plans. The appeals court disagreed that the law extended to floor plans and vacated the district court’s ruling.
The ruling has chilling implications for homeowners and their agents throughout the country, says NAR General Counsel Katie Johnson. Floor plans are fundamental to the buying, selling, appraisal, and renovation of homes. Buyers rely on them to get a feel for the flow of a house before touring it; appraisers use them to develop an opinion of value; and owners and building contractors use them for a variety of purposes—from furniture installation to home improvement projects.
The brief cited NAR’s 2021 Home Buyers and Sellers Generational Trends Report, which showed that more than two-thirds of online home shoppers found floor plans to be “very useful” and noted that new technologies make it easy to measure properties and create floor plans using a smartphone.
The American Property Owners Alliance, which joined in the brief, cited its own data showing that “89% of respondents strongly agree homeowners should be able to create a floor plan of their home anytime they want and select whomever they want to fulfill that task.”
“It is a safe bet that most Americans would be startled to hear they could be sued for copyright infringement for making floor plans of their home,” coalition members said in the brief, adding that the ruling threatens to severely limit property rights. “Even setting aside litigious home designers, the decision … opens up a new hunting ground for enterprising copyright trolls.” The brief cited one such company that has filed more than 100 copyright infringement suits based on floor plans over the last decade or so.
According to the rules of the Supreme Court, four of the nine justices must vote to accept a case; a decision on whether the court will review the case is expected this year.
“NAR, our institutes, societies and councils, and all other entities who signed on to this effort share the common goal of making property ownership desirable and feasible for consumers,” Johnson says. “By joining together in filing this brief, we are asking the Supreme Court to acknowledge that homeowners should be able to create and use floor plans without fear of litigation throughout the ownership and sale of their homes.”