Architectural Copyrights: the Eighth Circuit's Structurally Sound Interpretation of 17 U.s.c. § 120

• Publication year: 2023

Architectural Copyrights: The Eighth Circuit's Structurally Sound Interpretation of 17 U.S.C. § 120

Hunter T. Payne
University of Georgia School of Law, jwt74222@uga.edu

Architectural Copyrights: The Eighth Circuit's Structurally Sound Interpretation of 17 U.S.C. § 120

Cover Page Footnote
J.D. Candidate, 2024, University of Georgia School of Law, M.B.A. Candidate, University of Georgia, Terry College of Business, 2023. Special thanks to my dad who use to hand-draw structural plans on our kitchen table. Sincere thanks to Professor David Shipley for guidance and wisdom.

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ARCHITECTURAL COPYRIGHTS: THE EIGHTH CIRCUIT'S STRUCTURALLY-SOUND INTERPRETATION OF 17 U.S.C. § 120

Hunter T. Payne^*

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Table of Contents

I. Introduction...............................................................................................348

II. Background.................................................................................................350

A. Architectural Plans and Designs: An Overview.............350

B. Copyright Protections for Architectural Plans and Designs under Federal Law......................................................351

1. Historical Architectural Copyright Law.....................................351
2. Architectural Copyrights Prior to the AWCPA........................354
3. Modern Architectural Copyright Law ........................................ 355

C. A Modern Issue: Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc...................................................356

D. Instant Reaction to Designworks......................................................359

III. Analysis..........................................................................................................360

A. Judge Arnold Correctly Denied Summary Judgement in designworks homes, inc. v. columbia house of brokers Realty, Inc.........................................................................................360

b. fair use defenses should be available to defendant 365

1. Purpose and Character of the Use..............................................365
2. Nature of the Copyrighted Work................................................367
3. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.............................................369
4. Effect on the Use on the Potential Market of the Copyrighted Work................................................................................................371

V. Conclusion....................................................................................................374

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I. Introduction

The American economy relies heavily on technology to facilitate transactions, and the real estate sector is no exception.¹ Around 93 percent of prospective home buyers use the internet to search for homes.² Popular online real estate platforms—like Redfin and Zillow—generate billions of website views per year.³ These services allow users to view listed properties from the comfort of their homes, saving both time and expenses related to in-person viewings.

There are trade-offs to abandoning the traditional method of in-person home shopping. At the forefront, homeowners may manipulate listings to distort the appearance of their homes. "While you can't add to your property's square footage," according to Redfin, "you can change the perception of it [A]ll it takes is proper staging."⁴ Also, potential buyers generally cannot use online listings to evaluate the basic layout of the home as they would in person. As a result, a recent study found that floorplans are now essential elements of real estate listings.⁵ Floorplans in listings are so commonplace that software developers have innovated do-it-yourself technologies to scan residential dimensions and create robust floorplans.⁶ These software applications allow the average homeowner to create detailed floor plans by measuring their homes.⁷ one developer describes floorplans as "one of the most effective visual

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elements" of a real estate listing.⁸ Another describes them as a crucial differentiator when selling homes.⁹ Such software enables home sellers to display floorplans without a professional architect, bypassing the traditional method of acquiring a floorplan.¹⁰ Understandably, the people responsible for creating residential floorplans are not as enthused by their proliferation throughout online real estate listings.¹¹ After all, the architects responsible for the original floorplans have a potential copyright interest in their creations.¹²

This Note proceeds in three sections. Section II provides a general background pertaining to copyright protections for architectural plans and designs. Section II further details a recent case from the Eighth Circuit that opened the door for potential copyright violations in online listings.¹³ The ruling marked a departure from the traditional interpretation of federal law pertaining to architectural copyrights, ultimately expanding protections for the original architects.¹⁴ The National Association of Realtors filed an amicus brief, imploring the Supreme Court to reverse the ruling.¹⁵ However, the Supreme Court has declined to review the case, allowing the minority approach to persevere for now.¹⁶

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Section III first argues that the Eighth Circuit correctly interpreted 17 U.S.C. § 120(a) and that other circuits should adopt its approach moving forward.¹⁷ Judge Arnold's interpretation is congruent with both the actual language and legislative intent of Section 120(a), despite the novelty of the ruling.¹⁸ Under Judge Arnold's interpretation, similar cases would proceed to analyze whether the appropriation of floorplans constitutes fair use.¹⁹

Section III further argues that the Eighth Circuit's approach does not expose blameless homeowners to liability, considering that the court all but handed homeowners a fair use argument.²⁰ Section III discusses each fair use factor in detail, providing potential arguments from both sides in Designworks.²¹ Ultimately, courts using the Eighth Circuit's interpretation of Section 120(a) should find fair use under the facts of Designworks and most other cases involving floorplan use online.²² On a broader scale, fair use will inevitably distinguish acceptable uses of floorplans in real estate listings from those that violate the original creator's copyright. Thus, the Eighth Circuit's new ruling should not increase liability throughout future real estate transactions.

Finally, Section IV concludes that Judge Arnold's approach, although novel, exemplifies the correct interpretation of 120(a).²³ Overall, this Note seeks to highlight Designworks as a necessary shift in copyright law, analyze arguments pertaining to the facts presented in the case, and suggest that other courts follow in the Eighth Circuit's footsteps.

II. Background

A. Architectural Plans and Designs: An Overview

Architectural plans and designs are the comprehensive set of drawings critical to implement the construction of architecture.²⁴ They may include the site plan, floor plan, cross sections, elevation plan, and landscape plan.²⁵ Rendering these sets of drawings requires the skill of an architect, who must

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often be certified to create such plans for potential homeowners.²⁶ Due to the time and skill required to create architectural plans, architects typically charge a fee ranging from $500 to $2000 for an average residential design.²⁷ Luxury home designs cost considerably more, sometimes exceeding $100,000 for custom architectural plans.²⁸ To protect their work, architects often register copyrights on their plans and designs.²⁹

Copyright protections extend to "original works of authorship in any tangible medium of expression," which includes "architectural works."³⁰ While the architectural work may be registered with the federal government, architects are not required to register their copyrights to enjoy protection.³¹ Case law suggests that courts will uphold architectural copyrights with the same fervor as other traditional copyrights.³²

B. COPYRIGHT PROTECTIONS FOR ARCHITECTURAL PLANS AND DESIGNS UNDER FEDERAL LAW

1. Historical Architectural Copyright Law.

Copyright law allows architects to prevent the unauthorized proliferation of their work through the right to bring infringement claims.³³ A plaintiff must first

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register their copyright before a claim is brought in court.³⁴ The essential elements of a copyright infringement claim are (1) that the plaintiff owns a valid copyright and (2) that the defendant copied it.³⁵ The first prong of the infringement inquiry is determining whether a defendant has copied in fact.³⁶ Copying-in-fact may be proven by establishing that the defendant had access to the work in question, thus providing an opportunity for the work to be copied.³⁷ If the defendant had no access to the original work, then it follows that there would be no opportunity for any misappropriation to occur.³⁸ Mere speculation regarding possible access is insufficient to prove access.³⁹ Copying-in-fact may be inferred by similarities in the works.⁴⁰

For the second part of the infringement inquiry, the majority of a court's inquiry revolves around whether the defendant's use is substantially similar to the copyrightable elements of the plaintiff's work.⁴¹ There are different applications of the substantial similarity test depending on which circuit hears the case.⁴² The Second and Ninth Circuits stand as the two most fundamental venues to bring copyright claims, each having its own analysis for determining substantial similarity.⁴³

On the one hand, the Ninth Circuit splits the substantial similarity determination into both "extrinsic" and "intrinsic" tests.⁴⁴ The extrinsic test looks at the similarities between the two works, highlighting the protectible elements of the work.⁴⁵ Courts will first filter out the unprotectable aspect of the work in question.⁴⁶ The remaining...