Can I Use It? Copyright Issues in Real Estate Listings

Unfortunately for REALTORS®, copyright infringement is easier to commit than one might think. Whether utilizing old listing photos or marketing a listing using a builder’s floor plan, copyright infringement can come with severe penalties, including damages of up to $150,000. Due to the potential for harsh fines, REALTORS® should educate themselves on how to avoid liability.

Floorplans Routinely Copyrighted

REALTORS® have found that incorporating floorplans into their listings can significantly increase interest in them, especially as home offices and multigenerational housing are becoming increasingly popular. But can you use a floor plan that was previously posted online by a builder or another REALTOR®? The short answer is no.

Floorplans are routinely copyrighted, and REALTORS® should not assume that they have free use of them simply because the REALTOR® found the floorplan online or in a free publication from the builder. REALTORS® that are representing builders of new construction should always confirm that the builders are authorized to use a floor plan before they include it in a listing. Architects are typically the owners of the floorplans and often provide licensing agreements to builders, which allow them and their agents to use the floorplans in advertising.

These licensing agreements rarely, if ever, apply to resellers who may have the floorplans provided by their builders or find the prior listing on realtor.com or another listing site. Sometimes, REALTORS® try to argue that including the photos in a listing is merely informative and not commercial use, but courts rarely support this position.

Although Florida does not have much, if any, case law to help guide REALTORS® on this topic, other states have weighed in. In 2021, a district court in Missouri ruled not only that a REALTOR® could not hire a contractor to re-create a custom home floorplan, but it also ruled that a REALTOR® was prohibited from measuring the home’s dimensions and drawing the home’s floorplan on graph paper herself. While the Missouri court’s decision may have hinged on the fact that the floorplans were related to custom homes, whenever possible, REALTORS® should get the permission of the architect and builder before using a blueprint. While copyright protection does not generally include the right to prevent others from making “pictures” of the copyrighted work, the picture must be made from a public place and not from within a private home.

The same caution and approval process should be followed with pictures utilized in listings.

Using Listing Photos

REALTORS® should only use past listing photos with the photographer’s express, written consent. The mere fact that the photograph is posted on a public website or in a prior listing does not give a REALTOR® free reign to repost the picture for use in a new listing. In fact, as recently as June 2023, Zillow was ordered to pay almost $2 million dollars in damages after Zillow displayed another entity’s photographs on its website without obtaining the necessary approvals. As such, the moral of the story is - When in doubt, leave it out!

For more information on copyrights and trademarks, join RAJC for a panel discussion on August 29 at 1:30pm at RASM South.