`
`No. 21-___
`
`IN THE
`
`
`
`
`COLUMBIA HOUSE OF BROKERS REALTY, INC., D/B/A
`HOUSE OF BROKERS, INC., D/B/A JACKIE BULGIN &
`ASSOCIATES, ET AL.,
`Petitioners,
`
`v.
`DESIGNWORKS HOMES, INC. &
`CHARLES LAWRENCE JAMES,
`Respondents.
`
`On Petition for a Writ of Certiorari to the United
`States Court of Appeals for the Eighth Circuit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`Patrick D. Kuehl, Jr.
`RIMON, P.C.
`633 E. 63d Street
`Suite 220
`Kansas City, MO 64110
`(816) 839-7471
`
`
`
`
`
`
`Kevin K. Russell
` Counsel of Record
`Daniel Woofter
`Erica Oleszczuk Evans
`GOLDSTEIN & RUSSELL, P.C.
`7475 Wisconsin Ave.
`Suite 850
`Bethesda, MD 20814
`(202) 362-0636
`kr@goldsteinrussell.com
`
`
`
`
`
`
`QUESTION PRESENTED
`In 1990, Congress extended copyright protection
`to “architectural works.” See 17 U.S.C. §§ 101,
`102(a)(8). At the same time, however, Congress
`provided that the copyright in an architectural work
`does not preclude others from making “pictures,
`paintings,
`photographs,
`or
`other
`pictorial
`representations of the work,” so long as the building is
`visible from a public place. Id. § 120(a).
`In this case, petitioner real estate companies and
`agents created and distributed basic floor plans of
`family homes as part of their marketing materials.
`After the materials were distributed, respondent
`Charles James, who had built
`the houses
`approximately 20 years earlier, registered copyrights
`in the homes’ designs. He then sued petitioners,
`alleging that the floor plans infringed his copyright in
`the houses. The district court dismissed the case as
`precluded by Section 120(a). But the Eighth Circuit
`reversed, holding that floor plans are not a “picture” or
`“other pictorial representation” within the meaning of
`the exception. That decision draws into question the
`lawfulness of one of the most ubiquitous marketing
`practices in the real estate industry as well as the use
`of floor plans in other industries as diverse as
`insurance and home improvement.
`The question presented is:
`Whether floor plans constitute “pictures, paintings,
`photographs, or other pictorial representations” of an
`architectural work within the meaning of 17 U.S.C.
`§ 120(a).
`
`
`
`
`ii
`PARTIES TO THE PROCEEDING
`Petitioners are: Columbia House of Brokers
`Realty, Inc., d/b/a House of Brokers, Inc., d/b/a Jackie
`Bulgin & Associates; Shannon L. O’Brien; Nicole
`Waldschlager; Deborah Ann Fisher; Jacqueline
`Bulgin, d/b/a Jackie Bulgin; Carol S. Denninghoff;
`Susan Horak, d/b/a The Susan Horak Group Re/Max
`Boone Realty; and Boone Group, Ltd., d/b/a Re/Max
`Boone Realty.
`Respondents are: Designworks Homes, Inc. and
`Charles Lawrence James.
`RULE 29.6 STATEMENT
`Pursuant to this Court’s Rule 29.6, petitioners
`declare as follows: (i) Columbia House of Brokers
`Realty, Inc. and Boone Group, Ltd. are corporate
`entities; and (ii) no publicly held corporation owns 10
`percent or more interest in Columbia House of Brokers
`Realty, Inc. or Boone Group, Ltd., and neither
`Columbia House of Brokers Realty, Inc. nor Boone
`Group, Ltd. have parent corporations.
`
`
`
`
`
`
`
`iii
`RELATED PROCEEDINGS
`Designworks Homes, Inc. v. Columbia House of
`Brokers Realty, Inc., No. 19-3608 (8th Cir.
`Aug. 16, 2021)
`Designworks Homes, Inc. v. Columbia House of
`Brokers Realty, Inc., No. 20-3104 (8th Cir.
`Aug. 16, 2021)
`Designworks Homes, Inc. v. Horak, No. 20-1099
`(8th Cir. Aug. 16, 2021)
`Designworks Homes, Inc. v. Horak, No. 20-3107
`(8th Cir. Aug. 16, 2021)
`Designworks Homes, Inc. v. Columbia House of
`Brokers Realty, Inc., No. 2:18-cv-04090-BCW
`(W.D. Mo. Dec. 4, 2019)
`Designworks Homes, Inc. v. Horak, No. 2:18-cv-04093-
`BCW (W.D. Mo. Dec. 17, 2019)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iv
`TABLE OF CONTENTS
`
`QUESTION PRESENTED ........................................... i
`PARTIES TO THE PROCEEDING ............................ ii
`RULE 29.6 STATEMENT ........................................... ii
`RELATED PROCEEDINGS....................................... iii
`TABLE OF AUTHORITIES ........................................ v
`PETITION FOR A WRIT OF CERTIORARI .............. 1
`OPINIONS BELOW .................................................... 1
`JURISDICTION........................................................... 1
`RELEVANT STATUTORY PROVISIONS ................. 1
`STATEMENT OF THE CASE ..................................... 2
`I.
`Legal Background ................................................ 2
`II. Factual and Procedural Background .................. 4
`REASONS FOR GRANTING THE PETITION .......... 8
`I.
`
`The Court Of Appeals’ Untenable
`Interpretation Of The Copyright Act Has
`Opened Thousands Of Businesses To Suit
`For Engaging In Standard Industry
`Practices That Serve Important Public
`
`Purposes ............................................................... 8
`A. The Court Of Appeals Upended
`For Architectural Works ................................ 9
`B. The Decision Has Drawn Common
`Serious Legal Doubt ..................................... 22
`II. The Court Should Not Delay Review Of
`This Important Question ................................... 27
`
`Congress’s Careful Calibration Of Rights
`
`Practices In Multiple Industries Into
`
`CONCLUSION .......................................................... 30
`
`
`
`
`
`
`
`v
`TABLE OF AUTHORITIES
`
`Cases
`
`Ale House Mgmt., Inc. v. Raleigh Ale House,
`Inc.,
`205 F.3d 137 (4th Cir. 2000) .................................. 24
`Am. Broad. Cos. v. Aereo, Inc.,
`573 U.S. 431 (2014) ................................................ 27
`Arthur Rutenberg Homes, Inc. v. Jewel
`Homes, LLC,
`655 Fed. Appx. 807 (11th Cir. 2016) ...................... 23
`Bldg. Graphics, Inc. v. Lennar Corp.,
`708 F.3d 573 (4th Cir. 2013) .................................. 24
`Bostock v. Clayton County,
`140 S. Ct. 1731 (2020) ............................................ 10
`Buck v. Jewell-LaSalle Realty Co.,
`283 U.S. 191 (1931) ................................................ 21
`Builders Mut. Ins. Co. v. Allora, LLC,
`2013 WL 12250811 (E.D.N.C. Aug. 13,
`2013) ....................................................................... 21
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) ................................................ 14
`Carcieri v. Salazar,
`555 U.S. 379 (2009) ................................................ 10
`Charles W. Ross Builder, Inc. v. Olsen Fine
`Home Bldg., LLC,
`496 Fed. Appx. 314 (4th Cir. 2012) ........................ 24
`Code Revision Comm’n ex rel. Gen. Assembly
`of Ga. v. Public.Resource.Org, Inc.,
`906 F.3d 1229 (11th Cir. 2018) .............................. 29
`
`
`
`
`
`vi
`Design Basics, LLC v. Kerstiens Homes &
`Designs, Inc.,
`1 F.4th 502 (7th Cir. 2021) .................................... 23
`Design Basics, LLC v. Lexington Homes, Inc.,
`858 F.3d 1093 (7th Cir. 2017) ................................ 23
`Design Basics, LLC v. Signature Constr., Inc.,
`994 F.3d 879 (7th Cir. 2021) .................................. 23
`Designworks Homes, Inc. v. Thomson Sailors
`Homes, L.L.C.,
`9 F.4th 961 (8th Cir. 2021) .................................... 23
`Fourth Estate Pub. Benefit Corp. v. Wall-
`Street.com, LLC,
`139 S. Ct. 881 (2019) .............................................. 20
`Georgia v. Public.Resource.Org, Inc.,
`140 S. Ct. 1498 (2020) ................................ 22, 28, 29
`Golan v. Holder,
`565 U.S. 302 (2012) ................................................ 28
`Google LLC v. Oracle Am., Inc.,
`141 S. Ct. 1183 (2021) ...................................... 19, 21
`Highland Holdings, Inc. v. Mid-Continent
`Cas. Co.,
`687 Fed. Appx. 819 (11th Cir. 2017) ...................... 23
`Home Design Servs., Inc. v. Turner Heritage
`Homes Inc.,
`825 F.3d 1314 (11th Cir. 2016) .............................. 23
`Intervest Constr., Inc. v. Canterbury Estate
`Homes, Inc.,
`554 F.3d 914 (11th Cir. 2008) ................................ 24
`Leicester v. Warner Bros.,
`232 F.3d 1212 (9th Cir. 2000) .................................. 3
`
`
`
`
`
`vii
`Mackay Radio & Tel. Co. v. Radio Corp. of
`Am.,
`306 U.S. 86 (1939) .................................................. 12
`Medallion Homes Gulf Coast, Inc. v. Tivoli
`Homes of Sarasota, Inc.,
`656 Fed. Appx. 450 (11th Cir. 2016) ...................... 23
`Miller’s Ale House, Inc. v. Boynton Carolina
`Ale House, LLC,
`702 F.3d 1312 (11th Cir. 2012) .............................. 24
`Petrella v. Metro-Goldwyn-Mayer, Inc.,
`572 U.S. 663 (2014) ................................................ 24
`Richard J. Zitz, Inc. v. Pereira,
`225 F.3d 646 (2d Cir. 2000) ................................... 24
`Savant Homes, Inc. v. Collins,
`809 F.3d 1133 (10th Cir. 2016) .............................. 23
`Scholz Design, Inc. v. Sard Custom Homes,
`LLC,
`691 F.3d 182 (2d Cir. 2012) ............................... 2, 24
`Tanzin v. Tanvir,
`141 S. Ct. 486 (2020) .............................................. 29
`T-Peg, Inc. v. Vt. Timber Works, Inc.,
`459 F.3d 97 (1st Cir. 2006) .................................... 24
`YS Built LLC v. Ya Hsing Chiang Cind
`Huang,
`739 Fed. Appx. 414 (9th Cir. 2018) ........................ 23
`Zalewski v. Cicero Builder Dev., Inc.,
`754 F.3d 95 (2d Cir. 2014) ..................................... 23
`Zivotofsky ex rel. Zivotofsky v. Clinton,
`566 U.S. 189 (2012) ................................................ 29
`
`
`
`
`
`
`
`
`
`
`Statutes
`
`viii
`
`Architectural Works Copyright Protection
`Act, Pub. L. No. 101-650, tit. VII, 104 Stat.
`5133 (1990) ............................................................... 2
`17 U.S.C. § 101 ................................................... passim
`17 U.S.C. § 102(a)(8) .................................................... 2
`17 U.S.C. § 120(a) .............................................. passim
`17 U.S.C. § 120(b) ........................................................ 3
`17 U.S.C. § 302(a) ...................................................... 20
`17 U.S.C. § 504(a) ...................................................... 21
`17 U.S.C. § 504(b) ...................................................... 21
`17 U.S.C. § 504(c) ....................................................... 21
`17 U.S.C. § 505 ........................................................... 21
`17 U.S.C. § 1310(h) ................................................ 9, 14
`28 U.S.C. § 1254(1) ...................................................... 1
`Ark. Code Ann. § 20-78-228 ....................................... 25
`Cal. Rev. & Tax. Code § 2188.7(c) ............................. 25
`Minn. Stat. Ann. § 28A.082 ....................................... 25
`Minn. Stat. Ann. § 515A.2-114 .................................. 25
`Mo. Ann. Stat. § 253.559 ........................................... 25
`S.D. Codified Laws § 42-7B-18 .................................. 25
`
`Other Authorities
`
`136 Cong. Rec. H363, E259-61
`(daily ed. Feb. 7, 1990) ............................................. 2
`America’s Best House Plans, Modern
`Farmhouse House Plan 4534-00072,
`https://tinyurl.com/yv7xw7a8 (last visited
`Mar. 4, 2022) .......................................................... 18
`
`
`
`
`
`ix
`Berne Convention for the Protection of
`Literary and Artistic Works, Sept. 9, 1886,
`as revised at Paris on July 24, 1971 and
`amended in 1979, S. Treaty Doc. No. 99-27
`(1986), https://tinyurl.com/vfp8rtm2 ....................... 2
`Coop. Bldg. Plan Ass’n, Complete Collection of
`Shoppell’s Modern Houses (1886),
`https://tinyurl.com/55y73xyx ................................. 15
`Fannie Mae, Selling Guide (Feb. 2, 2022),
`https://tinyurl.com/yckvyrkb .................................. 25
`Freddie Mac, Single-Family Seller Servicer
`Guide, https://tinyurl.com/2kxs9j8f ....................... 25
`Ga. Dep’t of Cmty. Affs., Preferential
`Property Tax Assessment Program,
`https://tinyurl.com/3wn8x82c (last visited
`Mar. 4, 2022) .......................................................... 25
`Google, Street View – Sep 2021, 1 First St
`NE, Washington, District of Columbia,
`https://tinyurl.com/2v4p57et (last visited
`Mar. 4, 2022) .......................................................... 13
`H.R. 3990, 101st Cong. (1990) ..................................... 2
`H.R. 3991, 101st Cong. (1990) ..................................... 2
`H.R. 5498, 101st Cong. (1990) ..................................... 2
`H.R. Rep. No. 101-735 (1990) .................... 3, 16, 17, 19
`Home Depot, Home Depot Measure Service,
`https://tinyurl.com/3aakvf69 (last visited
`Mar. 4, 2022) .......................................................... 26
`IKEA, IKEA Home Planner,
`https://tinyurl.com/2p8nkupu (last visited
`Mar. 4, 2022) .......................................................... 26
`
`
`
`
`
`x
`Law Insider, Floor Plan Sample Clauses,
`https://tinyurl.com/44rt4c7x (last visited
`Mar. 4, 2022) .......................................................... 26
`Chris Linsell, 83 Shocking Real Estate
`Statistics You Need To Know, The Close
`(Dec. 23, 2021), https://tinyurl.com/2scjrccd ......... 23
`Lowe’s, Kitchen Design at Lowe’s,
`https://tinyurl.com/2p96bna9 (last visited
`Mar. 4, 2022) .......................................................... 26
`Matterport, 3D Scanning for Insurance and
`Restoration, https://tinyurl.com/77e9mkbb
`(last visited Mar. 4, 2022) ...................................... 26
`Me. Rev. Servs., Introduction to Property Tax
`Assessments (June 2020),
`https://tinyurl.com/r4hcy2x4 .................................. 25
`Chris Moon, How Long Do Homeowners Stay in
`Their Homes, ValuePenguin (June 4, 2018),
`https://tinyurl.com/y3yfavb8 ................................... 20
`Jim Parrott & Mark Zandi, GSE Reform Is
`Dead – Long Live GSE Reform! (May 2018),
`https://tinyurl.com/yz4sjb2j ................................... 25
`Picture, Merriam-Webster,
`https://tinyurl.com/yckz7xps (last visited
`Mar. 4, 2022) ............................................................ 9
`Stephen M. Shapiro et al., Supreme Court
`Practice (11th ed. 2019) ......................................... 29
`Uniform Residential Appraisal Report
`(Desktop), Freddie Mac Form 70D/Fannie
`Mae Form 1004 (July 2020),
`https://tinyurl.com/3sb4766d ................................. 25
`
`
`
`
`
`
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`Petitioners Columbia House of Brokers Realty,
`Inc., et al. respectfully petition this Court for a writ of
`certiorari to review the judgment of the U.S. Court of
`Appeals for the Eighth Circuit.
`OPINIONS BELOW
`The opinion of the court of appeals (Pet. App. 1a-
`14a) is reported at 9 F.4th 803. One of the district
`court opinions on review is reported at 421 F. Supp. 3d
`838 (Pet. App. 15a-34a), and another is unpublished
`(Pet. App. 35a-54a). Two district court opinions
`regarding attorney’s fees were vacated by the court of
`appeals in the opinion under review but are not
`pertinent to this petition.
` The opinions are
`unpublished but available at 2020 WL 5986610 and
`2020 WL 5986611.
`JURISDICTION
`The judgment of the court of appeals was entered
`on August 16, 2021. The court denied a timely petition
`for rehearing on October 5, 2021 (Pet. App. 55a-57a).
`On December 22, 2021, Justice Kavanaugh extended
`the time within which to file a petition for a writ of
`certiorari to and including March 4, 2022. No. 21A264.
`This Court has jurisdiction under 28 U.S.C. § 1254(1).
`RELEVANT STATUTORY PROVISIONS
`Section 120(a) of Title 17 of the U.S. Code provides:
`The copyright in an architectural work that
`has been constructed does not include the
`right to prevent the making, distributing, or
`public display
`of pictures, paintings,
`photographs, or other pictorial representations
`
`
`
`2
`of the work, if the building in which the work
`is embodied is located in or ordinarily visible
`from a public place.
`The appendix to this petition includes additional
`relevant excerpts of Sections 101, 102, and 1310(h) of
`Title 17 (Pet. App. 58a-61a).
`STATEMENT OF THE CASE
`I. Legal Background
`Until 1990, building designers could obtain a
`copyright
`in
`their plans and drawings, but
`“architectural structures themselves were afforded
`virtually no protection.” Scholz Design, Inc. v. Sard
`Custom Homes, LLC, 691 F.3d 182, 188 (2d Cir. 2012).
`In 1990, however, Congress enacted the Architectural
`Works Copyright Protection Act (AWCPA), Pub. L. No.
`101-650, tit. VII, 104 Stat. 5133 (1990), to bring the
`United States
`into compliance with the Berne
`Convention for the Protection of Literary and Artistic
`Works.1
`Under the AWCPA, the Copyright Act now
`protects “architectural works,” 17 U.S.C. § 102(a)(8),
`defined as “the design of a building as embodied in any
`tangible medium of expression, including a building,
`architectural plans, or drawings,” id. § 101. After
`1990, then, one could infringe a copyright in an
`
`1 See H.R. 3990, H.R. 3991, H.R. 5498, 101st Cong. (1990); 136
`Cong. Rec. H363, E259-61 (daily ed. Feb. 7, 1990). Article 2(1) of
`the Convention requires protection for the built designs of
`structures, not only for architectural plans and drawings that
`facilitated their construction. See Berne Convention for the
`Protection of Literary and Artistic Works, art. 2(1), Sept. 9, 1886,
`as revised at Paris on July 24, 1971 and amended in 1979,
`S. Treaty Doc. No. 99-27 (1986), https://tinyurl.com/vfp8rtm2.
`
`
`
`
`3
`architectural drawing by copying the drawing itself,
`but could also infringe a copyright in the architectural
`work by constructing a copy of a building that
`embodied a copyrighted design.
`However, “Congress did not afford architectural
`works full copyright protection.” Leicester v. Warner
`Bros., 232 F.3d 1212, 1217 (9th Cir. 2000). Of most
`relevance to this case, Congress provided that
`[t]he copyright in an architectural work that
`has been constructed does not include the
`right to prevent the making, distributing, or
`public display of pictures, paintings,
`photographs, or other pictorial represen-
`tations of the work, if the building in which
`the work is embodied is located in or
`ordinarily visible from a public place.
`17 U.S.C. § 120(a) (emphasis added). 2 The House
`Report explained that “[t]hese uses do not interfere
`with the normal exploitation of architectural works.”
`H.R. Rep. No. 101-735, at 22 (1990). Given “the
`important public purpose served by these uses and the
`lack of harm to the copyright owner’s market,”
`Congress enacted “an exemption, rather than rely on
`the doctrine of fair use, which requires ad hoc
`determinations.” Ibid.
`The question in this case is whether a drawing of
`a floor plan, such as those commonly used to market a
`property for sale, falls within this exception for
`
`2 The statute further provides that “the owners of a building
`embodying an architectural work may, without the consent of the
`author or copyright owner of the architectural work, make or
`authorize the making of alterations to such building, and destroy
`or authorize the destruction of such building.” 17 U.S.C. § 120(b).
`
`
`
`
`4
`making “pictures, paintings, photographs, or other
`pictorial representations” of an architectural work. 17
`U.S.C. § 120(a).
`II. Factual and Procedural Background
`1. In 1996, respondent Charles James built and
`sold a ranch style house at 4306 Melrose Drive in
`Columbia, Missouri. Fourteen years later, in 2010, the
`then-owners of the house hired petitioner Boone
`Group, Ltd., a real estate brokerage firm, to sell the
`property. Pet. App. 35a-36a. Using a tape measure
`and graph paper, one of the company’s agents
`sketched out a rough floor plan depicting the major
`features of the main and lower levels of the house to
`use in marketing the home:
`
`
`
`20-1099 C.A. J.A. 27.
`In 2018, eight years after the listing and more
`than 20 years after the home was constructed, James
`registered a copyright in the technical drawings for
`the house on Melrose Drive. Pet. App. 19a. Shortly
`thereafter, he and his construction firm, respondent
`Designworks Homes, Inc., sued the real estate
`company and its agents for copyright infringement.3
`
`
`3 Respondents originally asserted infringement of two earlier
`registered copyrights, but the district court found that there was
`
`
`
`
`
`5
`The suit did not claim that petitioners copied any
`of the original architectural drawings for the design
`(which petitioners had no access to). Instead,
`respondents claimed that petitioners had infringed by
`making and disseminating their own drawing of the
`home’s layout, particularly its allegedly original
`“triangular atrium design with stairs.” Pet. App. 3a.
`Respondents sought actual and/or statutory damages,
`as well as interest and attorney’s fees. See 18-cv-4093
`Dist. Ct. Doc. 1, at 7.
`Around the same time, respondents also filed suit
`against petitioner Columbia House of Brokers Realty,
`Inc. and various of its agents, asserting similar claims
`arising from those petitioners’ use of floor plans to
`advertise another house in 2017. That house had been
`built 18 years earlier but, again, respondent did not
`register a copyright in its architectural drawings until
`2018, after the alleged infringement took place and
`right before filing suit. As before, the suit did not
`allege that petitioners had copied any of respondents’
`architectural plans, only that they had infringed by
`producing a floor plan of the house as built. Pet. App.
`16a-20a.
`2. The district court granted summary judgment
`in petitioners’ favor in both cases. It held that the floor
`plans fell within the Section 120(a) exemption for
`“pictures” or “other pictorial representations” of an
`architectural work because the floor plans were “a
`pictorial representation of the structure’s interior as it
`exists.” Pet. App. 29a; id. at 48a.
`
`
`no evidence that petitioners had copied those works, a conclusion
`respondents did not challenge on appeal. See Pet. App. 40a-42a.
`
`
`
`
`6
`3. The Eighth Circuit reversed. It acknowledged
`that a floor plan could fit within the ordinary meaning
`of a “picture” or “pictorial representation.” Pet. App.
`5a-6a. But it concluded that “statutory context
`suggests that” the text should be read differently. Id.
`at 6a, 7a-8a.
` The court noted that in other
`inapplicable provisions of the statute, Congress had
`used the specific terms “technical drawings” and
`“architectural plans.” Id. at 6a (citing 17 U.S.C.
`§ 101). Based on this, the court reasoned that “if
`§ 120(a) encompassed these floorplans, we believe
`Congress would’ve said so more explicitly,” id. at 7a,
`rather than assume courts would understand, as the
`district court had, that the ordinary meaning of
`“pictures . . . or other pictorial representations” was
`broad enough to include floor plans without Congress
`having to mention them specifically.
`The Eighth Circuit
`further discerned an
`unwritten limitation in the statute based on its
`intuition
`that
`the words
`“pictures, paintings,
`photographs, or other pictorial representations” all
`“connote artistic expression.” Pet. App. 8a. The
`exception, therefore, should not be extended to
`pictorial representations that “serve a functional
`purpose,” like a floor plan. Ibid. The court did not
`address whether a photograph of the same home
`interior, conveying the same information and serving
`the same functional purpose, would count as a
`“photograph” within the meaning of the statute or be
`excluded as non-artistic as well. Id. at 8a-9a.
`The court of appeals also “glean[ed] one more clue”
`from the fact that the exception only applies if the
`“‘building in which the work is embodied is located in
`or ordinarily visible from a public place.’” Pet. App.
`
`
`
`
`7
`10a (quoting 17 U.S.C. § 120(a)). Although the
`exception applies to any picture of the architectural
`work so long as the “building” is visible from a public
`place, the court thought it relevant that “it would be
`quite difficult to create a floorplan of a building simply
`by viewing it from a public place.” Ibid.
`Finally, “[f]or what it’s worth,” the court of
`appeals believed that the legislative history supported
`its interpretation. Pet. App. 10a-11a.
`The panel acknowledged that every other court to
`have considered the question had reached the opposite
`conclusion. Pet. App. 11a. And the court admitted
`that its interpretation would impose “difficulties” for
`real estate agents and homeowners now charged with
`“identifying and contacting the owners of copyrights in
`architectural works to get permission to create
`floorplans” for marketing their homes and other uses.
`Id. at 14a. But those problems, the court believed,
`were for “the political branches.” Ibid. Moreover, the
`court noted that petitioners could yet assert a fair use
`defense, although it acknowledged that Congress had
`enacted Section 120 because it “did not believe that
`fair use, with its ad hoc approach, provided an
`adequate defense in these circumstances.” Id. at 12a.
`4. The full court of appeals subsequently denied
`petitions for panel and en banc rehearing. Pet. App.
`55a-57a.
`
`
`
`
`
`
`
`
`8
`REASONS FOR GRANTING THE PETITION
`The Eighth Circuit’s decision has cast a pall over
`one of the most common marketing practices in the
`real estate
`industry, based on an egregious
`misapplication of basic principles of statutory
`construction. If left unreviewed, the decision will
`leave hundreds of thousands of real estate firms and
`agents vulnerable to suits for extensive statutory
`damages and attorney’s fees based on the millions of
`floor plans published during the Copyright Act’s three-
`year limitations period. If that were not bad enough,
`the decision will interfere with other common uses of
`floor plans—for housing appraisals,
`insurance
`adjustment, commercial leases, home improvement
`projects, just to name a few—likewise subjecting other
`industries to similar suits for doing something no one
`believed was potentially unlawful until the decision in
`this case. The Court should grant this petition and
`reverse.
`I. The Court Of Appeals’ Untenable
`Interpretation Of The Copyright Act Has
`Opened Thousands Of Businesses To Suit
`For Engaging
`In Standard
`Industry
`Practices That Serve Important Public
`Purposes.
`Certiorari is warranted because the decision
`below is indefensible and will seriously harm multiple
`national industries.
`
`
`
`
`
`9
`A. The Court Of Appeals Upended
`Congress’s Careful Calibration Of Rights
`For Architectural Works.
`1. As the court of appeals acknowledged, a
`drawing of a floor plan fits within the ordinary
`meaning of the capacious terms of Section 120, which
`covers both “pictures” and more broadly “other
`pictorial representations of the [architectural] work.”
`17 U.S.C. § 120(a); see Pet. App. 7a. The dictionary
`definition of a “picture” includes “a design or
`representation made by various means (such as
`painting, drawing, or photography).”
` Picture,
`Merriam-Webster, https://tinyurl.com/yckz7xps (last
`visited Mar. 4, 2022); see also Pet. App. 5a (Oxford
`English Dictionary defines “picture” as an “individual
`painting, drawing, or other representation on a
`surface, of an object or objects”). A floor plan is a
`“representation” of an architectural work no less than
`a photograph, sketch, or other drawing.
`Even if floor plans did not “fit as comfortably
`within this definition as would, say, artistic sketches
`of the exterior of a house,” Pet. App. 5a-6a, Congress
`took pains to expand the statute beyond the core
`meaning of “picture” to encompass “other pictorial
`representations.” 17 U.S.C. § 120(a). That term would
`be meaningless unless it encompassed more than the
`word “picture” alone. Indeed, Congress used the term
`elsewhere in the statute to encompass drawings that,
`like a floor plan, document the features of a
`copyrighted work. See id. § 1310(h) (to register a
`copyright in the design of a useful article, author must
`submit “two copies of a drawing or other pictorial
`representation of the useful article”) (emphasis added).
`
`
`
`
`
`10
`That should have been the end of the case. Where
`a statute’s text is “plain and unambiguous,” courts
`“must apply the statute according to its terms.”
`Carcieri v. Salazar, 555 U.S. 379, 387 (2009). “The
`people are entitled to rely on the law as written,
`without fearing that courts might disregard its plain
`terms based on some extratextual consideration” or a
`complicated series of obtuse inferences only a lawyer
`could follow. Bostock v. Clayton County, 140 S. Ct.
`1731, 1749 (2020).
`Yet that is exactly what the Eighth Circuit did. It
`discarded the ordinary meaning of “picture” and
`“pictorial representation” based on a succession of
`inferences it drew from other provisions defining other
`terms and through the court’s intuition about the
`unspoken gist of what Congress was trying to get at
`(but apparently failed to articulate) in the statute.
`That reasoning does not bear scrutiny, even on its own
`terms.
`First, the court of appeals noted that Congress
`could have expressly mentioned floor plans, having
`included similarly specific terms (like “architectural
`plans” and “technical drawings”) in other parts of the
`statute. Pet. App. 6a-9a. But that argument proves
`far too much. Congress could have just as easily
`included words like “motion picture” or “drawing” as
`well, words it also included in one of the provisions the
`court of appeals cited. See 17 U.S.C. § 101 (definition
`of “work of visual art”). Does that mean that a
`drawing is not a “picture” or that Section 120(a) does
`not protect film depictions of architectural works? Of
`course not. The entire point of using a broad phrase
`like “pictures, paintings, photographs, or other
`pictorial representations of the work,” is to sweep in
`
`
`
`
`11
`everything that naturally falls within those terms
`without having to also specifically list every intended
`example. If Congress defined “fruit” in Section 1 of a
`statute to include “apples, bananas, and grapes,” no
`one would think that when Congress used “food” in
`Section 2, it intended to exclude bananas because it
`“knew how to describe [bananas] with more specificity
`than by simply referring to them as [food].” Pet. App.
`6a.
`
`Indeed, the other statutory provisions the Eighth
`Circuit cited show quite vividly why its reasoning was
`wrong. The court was relying on instances in which
`Congress defined similarly broad phrases—“pictorial,
`graphic, and sculptural work” and “work of visual
`art”—to include things like architectural plans and
`technical drawings. See Pet. App. 6a-9a (citing 17
`U.S.C. § 101). The inference, if anything, is that when
`Congress used comparable sweeping language in
`Section 120(a), it intended that language also to
`include such examples. Of course, Congress did not
`provide a definition for the relevant phrases in Section
`120(a). But that does not mean it intended the
`provision to have a narrower meaning than what
`ordinary usage or the statutory definitions of similar
`phrases would indicate.
`The court of appeals’ reliance on the definition of
`a “work of visual art,” was particularly flawed. Pet.
`App. 7a. In that provision, Congress declared that the
`term includes a “drawing,” then separately excluded
`from the definition “technical drawing[s].” See 17
`U.S.C. § 101. The appropriate lesson is that Congress
`understood that the word “drawing” would naturally
`encompass technical drawings unless they were
`expressly excluded. And given that Section 120’s
`
`
`
`
`12
`. . . or other pictorial
`reference to a “picture
`representation[]” must include drawings, one would
`think that Congress likewise understood that a
`“picture” would include technical drawings and floor
`plans unless the statute expressly said otherwise.
`Second, the Eighth Circuit believed that “the
`terms Congress used in § 120(a) . . . all connote artistic
`expression,” and therefore should be read to exclude
`depictions that might otherwise fall within the
`ordinary meaning of the statute but “serve a
`functional purpose.” Pet. App. 8a. But words like
`“picture,”
`“photograph,”
`and
`“other
`pictorial
`representation” do not
`connote only artistic
`expression. See, e.g., Mackay Radio & Tel. Co. v.
`Radio Corp. of Am., 306 U.S. 86, 98 (1939) (referring
`to a “graph” as “a pictorial representation”). Take, for
`example, the photographs commonly used in real
`estate marketing. They perform exactly the same
`“functional purpose” as a floor plan—“informing
`potential buyers of home layouts and interiors, and,
`more broadly, to help sell homes.” Pet. App. 8a
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
