From the NAR Legal Team

1. Kipp Flores Architects v. AMH Creekside Development, LLC, et al.

Two defendants (collectively, “AMH Creekside”) disseminated floorplans and 3D renderings created from plaintiff’s copyrighted technical drawings of previously constructed home designs. Plaintiff alleged that AMH Creekside’s actions violated a license agreement between the parties and sued for copyright infringement, amongst other claims, and AMH Creekside asserted Section 120(a) of the Copyright Act as an affirmative defense. Under Section 120(a), a copyright owner in an architectural work, including technical drawings, may not prevent others from creating pictorial representations of that copyrighted architectural work provided the building embodying the copyrighted work is ordinarily visible from a public place. The district court found that the floorplans and 3D renderings disseminated by AMH Creekside constituted “pictorial representations” of plaintiff’s copyrighted technical drawings, as embodied in already-constructed homes ordinarily visible from a public space and dismissed plaintiff’s copyright infringement claim against AMH Creekside. Notably, the district court expressly rejected the Eighth Circuit’s finding in the Designworks litigation that floorplans do not constitute “pictorial representations” under Section 120(a) of the Copyright Act. Kipp Flores Architects, LLC v. AMH Creekside Development, LLC, et all., 2022 WL 4352480 (W.D. Tex. Sept. 16, 2022).

2. Atcheson Hotels, LLC v. Laufer

The Supreme Court will decide whether a self-described ADA “tester” has Article III standing to challenge a hotel’s failure to provide disability accessibility information on its website, absent the intent to visit the hotel. 4 The district court dismissed Laufer’s claims on the basis that she did not intend to visit the hotel, and therefore lacked standing. The First Circuit disagreed, and Atcheson appealed to the Supreme Court. This is the first time the Court will hear an ADA Title III case in over 18 years and will resolve a circuit split on the issue – the First, Ninth, Eleventh, and Fourth Circuits have adopted the informational injury standing, while the Second, Fifth, and Tenth Circuits have rejected it. This case will likely impact the rise or fall of ADA Title III lawsuits filed by testers across the country.