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An appeals court affirmed Tuesday that the use of floorplans in real estate listings is a fair use of copyrighted home designs under copyright law, protecting one of the most valuable marketing tools agents and brokers have at their disposal. The court’s decision is the culmination of support from The National Association of REALTORS®’ Legal Action Program.
The Eighth Circuit Court of Appeals unanimously upheld rulings from a lower court that defendant real estate brokerages and professionals did not violate a home designer’s copyright when they included floorplans of the sellers’ homes in their listings. NAR’s Legal Action Committee and Amicus Brief Advisory Board have supported the brokerages since 2018, providing multiple rounds of funding assistance for the defendants and approving NAR’s amicus participation on three occasions.
"This is excellent news for the real estate industry,” says Wendell Bullard, chair of NAR’s Legal Action Committee. “The Legal Action Committee and Amicus Brief Advisory Board considered this case a priority given the potential impact on homeowners, NAR members and the clients they serve. Floorplans are critical to marketing properties, and this decision helps to ensure real estate professionals and consumers are able to enjoy the benefits of including floorplans in the homebuying and selling process."
NAR’s Legal Action Program supports parties to litigation that may have significant impacts on the real estate industry, property rights, and the operations of a trade association.
The defendants, including Missouri-based House of Brokers Realty, Inc., and The Susan Horak Group Re/Max Boone Realty, sought NAR’s assistance through the Legal Action Program, and the Columbia Board of REALTORS® (CBOR) was instrumental in coordinating efforts.
“We have appreciated the support of NAR’s Legal Action Committee and Program throughout this protracted litigation,” says CBR CEO Brian Toohey. “NAR’s amicus contributions were integral to demonstrating to the Eighth Circuit the importance of floorplans to the real estate industry and property owners.”
Designworks’ copyrighted home design was used to build five homes between 1996 and 2001. The designs were registered with the U.S. Copyright Office in 2018.
In separate years, real estate pros Jackie Bulgin and Susan Horak each listed a home that used James’ design. Each prepared a floorplan for their respective listings, individually or through a contractor, and marketed the homes. The case centered on whether creating and displaying the floorplan of a copyrighted home design, violated copyright law.
The brokerages most recently argued that their use of the floorplans was considered “fair use”, a legal defense against copyright infringement. After nearly six years of litigation, a judge for the Eighth Circuit of Appeals agreed with the brokerages—after the court originally sided with the home designer on a separate legal argument in 2021.
In the decision, the court explained why floorplans are so crucial for real estate professionals and their clients, and how Designworks actually benefited from the exposure of its design, points raised by NAR through its amicus brief to the Eighth Circuit.
“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 explained. “The result is that the homes should, on average, resell more quickly or for a higher price than they would absent the use of floorplans. This benefits Designworks because it can capture a share of the price or liquidity premium by charging more for its designs and homes in the initial markets for these products.”
The ruling sends a strong message to the marketplace that may deter future opportunistic litigation targeting brokers and agents over similar copyright claims.
