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)

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, oor 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).