Windows to the Law: Using Floorplans to Market Listings

Using Floorplans to Market Listings

Floorplans are an effective tool often used by listing agents to market listed properties by giving potential buyers a complete view of the property’s layout, something that listing photos may not fully convey. Yet some copyright owners of home designs and related technical drawings are asserting this use of floorplans to market homes is copyright infringement. A recent win for defendant listing brokerages and agents highlights best practices for real estate professionals using floorplans.

In 2018, the home designer Designworks sued real estate brokerages and agents alleging that their creation and use of floorplans violated the copyrights it owned in a home design and the related technical drawings. The defendant listing agents had created the floorplans, or engaged a third-party vendor to do so, and used the floorplans in property listings. Recently, in a victory for the real estate industry, the district court dismissed the allegations against the defendants, finding their use of floorplans was a fair use under copyright law. The fair use doctrine is an affirmative defense to copyright infringement that permits the use of copyrighted material in a reasonable manner without the copyright owner’s consent. Courts balance four factors when determining whether a use is a fair use: the character of the alleged infringing use; the nature of the copyrighted work; how much of the copyrighted work was used; and the effect on the potential market value of the copyrighted work. Here, the court found the defendants’ creation and use of the floorplans constituted fair use for several reasons: the floorplans were functional in nature; defendants used the floorplans to market residential properties at the request of the property owners; the floorplans did not replace the architectural expertise required to replicate the design; and the policy and efficiency benefits of transparent real estate transactions. The home designer has appealed this decision to the 8th Circuit Court of Appeals.

Notably, courts across the country are not in agreement about whether floorplans infringe on copyrighted home designs. NAR will continue to advocate for a consistent nationwide standard allowing real estate professionals to use floorplans to market listed properties without risking copyright infringement claims. In the meantime, keep these best practices in mind if your marketing plan includes the use of floorplans:

  • Document that you have the property owner’s permission to create a floorplan for the purposes of marketing a home.
  • Ensure floorplans convey only the interior layout of the home. Do not include architectural drawings or technical plans in property listings.
  • If you happen to learn that a listed home incorporates a copyrighted design, obtain the copyright owner’s written permission before creating and using a floorplan for the home.
  • Finally, if you are facing copyright infringement allegations, consult with an attorney about your available defenses, including the fair use defense.

Implementing these best practices when you use floorplans as part of your marketing plan will help to mitigate your risk of costly copyright infringement litigation.  Thanks for watching this episode of Window to the Law.

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