You Need an Act of Congress to Sell Your House?

One of the country's top courts recently suggested that you either need to call the architect that designed your house, or a lobbyist, before listing it for sale.

In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., (8th Cir. 2021) the defendants were accused of creating floorplans of a home as part of the process of listing it for sale. The defendants lost on one of their primary defenses: that certain uses of architectural works are allowed under the Copyright Act. (The Court recognized that other defenses are available. And there are, but none that would give defendants as quick a means of avoiding costly litigation.)

Architectural works are protected under the Copyright Act—like many creative works. But the Act includes an exception allowing for certain uses without violating the Act. It is stated in Section 120.

The Designworks court addressed Section 120. Here is a summary of the ruling (read slowly): the Section 120 exception to a law that only protects creative works does not apply to non-creative representations of such works, since the exception only lists creative works.

The Court acknowledged that the floorplans at issue might fall within the exception based upon the actual language of Section 120, which allows one to use "pictorial representations" of architectural works:

Though the floorplans might possibly qualify as "pictorial representations" according to the contemporary definitions of those terms, the difficulty once again is that, when we consider the broader statutory context, Congress could have easily resorted to other terms that it used elsewhere in the copyright statutes to ensure that § 120(a) included floorplans.

Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., No. 19-3608, 2021 WL 3612784, at *3 (8th Cir. Aug. 16, 2021).

As an initial matter, contemporary definitions are not the only definitions demonstrating that "pictorial representations" include floorplans. The Copyright Act has a definitions section, which lists "architectural plans" in the category of "pictorial, graphic, and sculptural works"—which the Court recognized applies to floorplans elsewhere in the opinion. Id. at *2 (citing 17 USC §101).

But instead of applying either the statutory or "contemporary" definition of "pictorial," the Court turned to certain tools lawyers use to interpret statutes (called canons of construction):

We think that the terms Congress used in [Section] 120(a) have a certain quality in common—they all connote artistic expression. Recall that that section speaks of "pictures, paintings, photographs, or other pictorial representations of" a work. Pictures (when properly interpreted as already discussed), paintings, and photographs connote expression. We think that pictorial representations, when read together with these other terms, most likely refer to pictorial representations created for similar reasons. Floorplans like the ones here, on the other hand, serve a functional purpose. Though it's conceivable that a floorplan could be created for artistic purposes, we deal here with floorplans that all seem to agree were generated for the practical purpose of informing potential buyers of home layouts and interiors, and, more broadly, to help sell homes. They do not share the common quality that the other terms possess.

?Id. at *3 (using canons such as noscitur a sociss and ejusdem generis to limit the meaning of "pictorial" based upon the words surrounding it) (emphasis added).

This demonstrates how myopic deployment of canons of statutory construction can go awry. Section 120 provides a list of works that connote creativity because it is an exception to a statute that only protects creative works. It might go without saying, then, that non-creative (practical) representations of those works are also safe.

Indeed, it seems the It Goes Without Saying canon (NOT A REAL CANON, JUST ONE I MADE UP) might counter the other canons (see latin phrases above). If the Copyright Act creates an express allowance for one to use a creative work in a way that would otherwise infringe the protection of creative works under the Copyright Act, It Goes Without Saying that one can use non-creative manifestations of such works. Surely, we citizens need not run to Congress for a clear answer here.

Surely we do.

The National Association of Realtors ("Association") filed a brief in the case to warn of the cost that might result from the Court's ruling. The Court declined to protect against it, stating that the only recourse for Defendants and the Association—and possibly, you, depending on creative pleading—on this issue is to go to Congress for clarification:

[The Association] also points to the difficulties its members would have identifying and contacting the owners of copyrights in architectural works to get permission to create floorplans. We see the concern. But our task "is not a free-ranging search for the best copyright policy, but rather depends solely on statutory interpretation." . . . . To the extent [the Association] argues that the benefits of a broader statute would reduce or eliminate certain costs, it should direct its argument to the political branches.

Id. at *5.