Exciting Developments in Real Estate Law

The year is coming to a close, but the legal landscape of the real estate industry continues to evolve. From copyright infringement battles to architectural trade dress disputes, the intersection of law and real estate...

The year is coming to a close, but the legal landscape of the real estate industry continues to evolve. From copyright infringement battles to architectural trade dress disputes, the intersection of law and real estate has seen some fascinating cases in recent times. Let's dive into these intriguing legal debates and explore the impact they have on the design and real estate industries.

Deciphering Defenses to Copyright Infringement Claims

Two high-profile cases involving Zillow and Dirt.com shed light on the complexity of navigating the fair use doctrine - a statutory defense to copyright infringement claims - within the real estate realm.

Zillow, the popular online real estate marketplace, found itself in a legal battle with VHT, Inc., a premier provider of digital marketing services for the real estate industry. Zillow was accused of using nearly 2,700 of VHT's photographs without permission in their property listings. Zillow argued that their use constituted fair use as they had cropped and tagged the photographs for their search engine. However, the Ninth Circuit Court of Appeals disagreed, ruling that Zillow's use was not fair and that each infringed photograph could be subject to separate statutory damages.

In another case, Dirt.com was sued by photographer Brandon Vogts for copyright infringement. Dirt.com claimed fair use, stating that their usage of the photographs was transformative. However, the court rejected this argument, emphasizing that the unauthorized use of copyrighted materials, even in a digital medium, could still constitute copyright infringement.

These cases highlight the risks of using photographs without permission, even in transformative ways. They also emphasize that the fair use defense is nuanced and must be considered on a case-by-case basis.

Navigating Architectural Copyright

The world of architectural copyright has seen significant developments in contract interpretation and bankruptcy proceedings. Two cases, one in the Eighth Circuit and one in the Fifth Circuit, tackled copyright infringement in the context of expanding on pre-existing works.

In Cornice & Rose Int'l, LLC v. Four Keys, LLC, the Eighth Circuit dealt with a building design completed without the permission of the architectural firm. The court ruled in favor of the bank that completed the building, stating that building alterations based on pre-existing plans are allowed under certain provisions of the Copyright Act.

In Loeb-Defever v. Mako, L.L.C., the Fifth Circuit upheld a ruling that favored a real estate developer who used an architect's preliminary design schematics to develop a senior living facility. The court determined that the contract between the parties provided the developer with an express license to use the schematics and create derivative works from them. This case serves as a reminder for companies to clearly define rights in their contracts to avoid future conflicts.

The Implications of Architectural Trade Dress

The Trademark Trial and Appeal Board (TTAB) issued precedential opinions on whether building designs can be protected as trademarks. The cases of Palace Del Rio and Seminole Tribe of Florida address questions of acquired and inherent distinctiveness in exterior architectural designs.

In Palace Del Rio, the Hilton Palacio del Rio attempted to register the designs of the "River" and "Street" sides of their hotel building. However, the TTAB ruled that the designs were not distinctive enough to warrant trademark protection.

On the other hand, in Seminole Tribe of Florida, the guitar-shaped Hard Rock Hotel & Casino in Hollywood, Florida successfully obtained trademark protection. The TTAB deemed the design inherently distinctive for the services provided.

These contrasting cases highlight the importance of establishing distinctiveness to secure trademark protection for architectural designs.

Final Thoughts

As we bid farewell to another year, it's clear that the legal landscape of the real estate industry is ever-evolving. From copyright battles to architectural trade dress disputes, the intersection of law and real estate continues to shape the creative and strategic decisions within the field. By staying informed and understanding the complexities, professionals in the design and real estate industries can navigate these legal intricacies successfully.

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