"Troll! Troll in the Living Room! Thought You Ought To Know.": Opening the Door for Extensive Copyright Litigation Under 17 U.S.C. [section] 120.

• Author: Seyer, Savanah R.

1. INTRODUCTION

   For many, the day of a real estate closing is filled with excitement and relief. The process of finding a family home or a building to begin a business is often arduous. On average, the search for a home lasts at least six months. (1) There are long days of showings, stressful negotiations with loan officers, and difficult decisions when purchasing a piece of property. Most buyers and sellers look forward to the day when the paperwork is signed and title, along with all the rights and privileges it affords, passes to the new owners. After closing, the new owners typically assume they are free to enjoy their new property as they see fit. They take pictures of and remodel their home, hire builders or real estate agents to assess or view the land, or even make plans to eventually sell the property. Many of these actions may require sketches of rudimental floor plans or drawings of a home's layout. However, the Eighth Circuit recently created a barrier for homeowners to use these plans by opening them up to potential copyright infringement lawsuits. In doing so, the Eighth Circuit infringed upon the general ability to enjoy one's property and made many common uses of private property vulnerable to legal challenges.

   In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., the Eighth Circuit provided encouraging news for copyright "trolls"--copyright holders who make frequent copyright litigation part of their business model. (2) Specifically, the court held that the defendant real estate agencies' floorplans were not protected from claims of copyright infringement. (3) In doing so, it trod heavily on private property rights, made it easier for "trolls" to bring lawsuits based on the creation of housing floor plans, and, thus, opened the judicial system up to a wave of unnecessary litigation. Part II of this Note describes the facts and procedural background of Designworks. Part III examines the development of relevant copyright law as it pertains to architectural and other works. Part IV explains the Eight Circuit's holding in Designworks. Part V discusses the implications of the Eighth Circuit's holding and comments on the new blueprint for copyright lawsuits and the potential for an explosion of copyright litigation, weak statutory interpretation, and erosion of private property rights in the United States.

2. FACTS AND HOLDING

   Two homeowners in Columbia, Missouri, hired Columbia House of Brokers Realty, Inc. and Susan Horak Group Re/Max Boone Realty ("Defendants") to assist in the sale of their homes. (4) Plaintiff Charles James ("Plaintiff") built and designed the homes with particular recognizable features such as a "triangular atrium design with stairs." (5) When the Defendants listed the homes for sale, the listings included floor plans of the homes. (6) The Defendants did not use or copy the Plaintiff's original architectural plans. (7) One defendant drew its own floor plans after measuring the dimensions of the home, and the other defendant had a floor plan created by a contractor who measured the home and used a computer to sketch the plan. (8) Plaintiff and his company, Designworks Homes, Inc., claimed a copyright interest in the home's design and sued for copyright infringement based on the sketched floorplans. (9) Defendants relied on 17 U.S.C. [section] 120(a)--which provides that a copyright of an "architectural work," such as an architectural blueprint, "does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place." (10) The district court granted summary judgment for the Defendants on the grounds that the floorplans constituted "pictorial representations" of the Plaintiff's homes and therefore did not infringe on the copyright. (11) On appeal, the Eighth Circuit held that the floorplans were "technical drawings" or "architectural plans," not "pictorial representations," and therefore were not protected under [section] 120(a). (12)

3. LEGAL BACKGROUND

   United States copyright law began protecting buildings and other architectural materials after the United States joined the Berne Convention in 1989 and added the Architectural Works Copyright Protection Act ("AWCPA"). (13) AWCPA specifically provided protection for architects' structures and blueprints. (14)

   1. Copyright Statutes

      Under 17 U.S.C. [section] 106, a copyright holder has the exclusive rights to copy, reproduce, distribute, publicly display, or create "derivative works" of their copyrighted material. (15) Section 120 extends copyright protection to "architectural works." (16) Architectural works are defined as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings." (17) Section 101 states that the work may include the "overall form as well as the arrangement and composition of spaces and elements in the design." (18) However, architects, like other copyright owners, may not copyright basic ideas or "standard features." (19) As a result, many copyrights of architectural works are "thin," (20) consisting merely of basic, "stock" features of a structure, or, put more simply, the essential features of a building common to almost every home or office. (21) Only works "strikingly" or "substantially" similar to the thinly protected work will be considered copyright infringement. (22) Another's work is substantially similar to the protected work if it is "so similar... that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectible expression by taking material of substance and value." (23)

      In addition to the "substantial similarity" requirement for copyright infringement, there are other significant limitations on the copyright protection of an architectural work. (24) For instance, under [section] 120(b), owners of buildings "embodying an architectural work" are permitted to destroy or alter the building without the copyright owner's consent. (25) And [section] 120(a) provides a defense against a copyright infringement claim where the work involves the creation, distribution, or display of "pictorial representations," if the building where the work is "embodied" is "located or ordinarily visible from a public place." (26) What constitutes a "pictorial representation" of an architectural work is at the heart of lawsuits where [section] 120(a) is invoked as a defense. (27)

      Under [section] 101, "[p]ictorial works" are defined as two- and three-dimensional "[w]orks of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings, including architectural plans." (28) On the other hand, [section] 120(a)--which expressly applies to "pictorial representations"--lists only "pictures, paintings, [and] photographs" as examples and offers no other guidance. (29) Thus, architecture-based copyright litigation can involve two questions: whether pictorial "works," which explicitly include technical drawings and architectural plans, are considered separate from pictorial "representations," and, if so, what distinguishes the two. (30) A large number of courts have employed statutory interpretation to find that sketched floorplans constitute pictorial representations, protecting such floorplans from infringement claims under [section] 120. (31)

      Analysis of a statute begins with its plain meaning. (32) Courts often apply the "canon against surplusage," which "give[s] effect" to every word of a statute "if possible." (33) The interpretation of a statute requires the reading of the entire text and consideration of the statute's context and purpose. (34) [A]bsent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive." (35) Courts have used these canons to inform their analysis of [section] 120 and what constitutes a "pictorial representation." (36)

      Many claims brought by architectural copyright holders are based on drawn floorplans of a building. (37) In addition to interpreting the meaning of "pictorial representation," courts must sometimes determine what it means for work to be "ordinarily visible from a public place." (38) In Sorenson v. Wolfson, the court held that rough drawings of an apartment floorplan do not infringe on the copyrighted architectural work when the apartment building is visible from a public place. (39) Importantly, the court's analysis focused on whether the architectural work is visible from a public place, regardless of whether one could see inside the building or not. (40) The apartment itself in Sorenson was not visible from the sidewalk, but one could see the outside of the building. (41) Therefore, the court reasoned, the floorplan sketches of the apartment were pictorial representations of a publicly visible architectural work and did not constitute copyright infringement of the original blueprints and design. (42)

   2. Copyright Trolls

      It is quite common for owners of copyrighted architectural work to judicially enforce their copyright. (43) Many architectural firms use litigation and the threat of infringement claims to gain settlements and favorable judgments as a way to obtain profit. (44) These types of frequent plaintiffs are considered copyright "trolls." (45) For example, the firm Design Basics, LLC ("Design Basics") has filed over one hundred copyright lawsuits and pays its employees to search the internet for potential copyright violations of their home design plans. (46) According to one of the firm's owners, these settlements and judgments are a "principal" revenue stream for the firm. (47) Predictably, courts often look unfavorably upon copyright trolls like Design Basics. (48) In one of the firm's recent...