In a significant decision for the real estate and home design industries, the Eighth Circuit Court of Appeals ruled that the use of floor plans in resale listings constitutes fair use under copyright law.
Issued on Jan. 14, 2025, the ruling brings clarity to a long-standing dispute between Charles James, a home designer, and several real estate agents accused of copyright infringement.
Advocating for the agents, the National Association of REALTORS® (NAR) defended the use of floor plans to market their listings without fear of copyright infringement.
“Floor plans are indispensable tools for agents to market properties effectively and for consumers to make informed decisions during their property search,” said Kevin Sears, president of NAR, in a statement. “This legal victory demonstrates how working together at all levels can ensure members have the tools needed to serve their clients.”
Ultimately, the ruling sends a “strong message to the marketplace that may deter future opportunistic litigation targeting brokers and agents over similar copyright claims,” read an NAR press release.
Through his company Designworks, James sued two real estate agents, Susan Horak and Jackie Bulgin, over copyright infringement after the pair of agents included floor plans of his home designs in their listings.
His unique home design, created over 30 years ago, features a triangular atrium and stairs; he has incorporated the design into six homes and has registered copyrights in the design and its derivatives, depositing photographs and detailed architectural plans with the Copyright Office.
Horak listed one of James’ triangular atrium homes for resale in 2010 with a floor plan she created by hand. After the home sold, the listing remained online. Bulgin listed another one of these unique homes in 2017 with a floor plan rendered by a contractor; she ultimately did not sell the home.
After discovering the pair of listings online in 2017, James and his company sued Horak and Bulgin separately for copyright infringement, arguing that the agents’ floor plan rendering could be used to reconstruct the homes.
Citing fair use as a defense, the agents maintained that their use of the floor plans served an informational purpose—transformative to a degree that outweighs the commercial use since they were used to market existing properties.
Further, the agents only included what was necessary for the floor plans—two-dimensional renderings to show the layout and dimensions—omitting specific details of the design’s creative aspects.
The U.S. District Court for the Western District of Missouri concluded that the agents’ use of floor plans constituted fair use, but the decision was reversed by the Eighth Circuit for further consideration of the fair use defense.
The circuit affirmed the district court’s judgment in the agents’ favor Tues., Jan. 14, citing fair use since the informational purpose outweighed the commercial use and that it did not harm the market for James’ designs since they used floor plans of existing homes.
When the case was initially before the district court in 2018, it opened up the conversation, ultimately leading NAR along with several other big names in the industry to file a brief with the Supreme Court in April 2022, which was ultimately denied.
Just two days after the circuit court ruling, the New Mexico MLS (NMMLS) announced that floor plans would be required on all of its listings—the first MLS to do so.
“Floor plans—already a standard feature in many international markets like the UK, Sweden and Australia—are now gaining traction in the U.S. as an essential digital asset. NMMLS’ leadership hopes this initiative will inspire other MLS organizations nationwide to follow suit,” read a press release from NMMLS.
