Kipp Flores v. AMH Creekside — Fifth Circuit Revives Architectural Copyright Claims but Rejects DMCA Theory

Background

Kipp Flores Architects (KFA) licensed architectural designs and technical drawings to American Housing Ventures for construction and marketing around Austin, Texas. The agreements required KFA’s copyright management information (CMI)—including its name, copyright symbol, and publication date—to appear on displays of the works. Graphics vendors created floorplans and digital renderings based on the designs, but those marketing images did not identify KFA.

American Housing Ventures later helped develop Creekside Ranch and supplied the floorplans and renderings to the development owner and its parent. KFA terminated the license and sued, asserting copyright infringement and claims under section 1202(b) of the Digital Millennium Copyright Act (DMCA), among other theories. The district court dismissed substantial portions of the case, including the copyright claims under the Architectural Works Copyright Protection Act’s section 120(a) safe harbor and the DMCA claims because the disputed images never contained KFA’s CMI.

KFA voluntarily dismissed its remaining claims with prejudice to seek appellate review. That created a threshold question because Federal Rule of Civil Procedure 41(a)(2) speaks of dismissing an “action,” not selected claims.

The Court’s Holding

The Fifth Circuit held that the district court erred by using Rule 41(a)(2) to dismiss only the remaining claims, but the error did not eliminate appellate jurisdiction. Unlike a self-executing Rule 41(a)(1) notice that fails the rule’s requirements, a Rule 41(a)(2) dismissal occurs through a court order. The order remains effective unless reversed even when the court misapplies the rule. Judge Haynes concurred only in the judgment, and Judge Oldham dissented on jurisdiction.

On architectural copyright, the court drew a line between two separately protected subjects. Section 120(a)—which permits pictures and other pictorial representations of publicly visible constructed buildings—limits copyrights in “architectural works.” It does not limit copyrights in architectural plans and drawings protected separately as pictorial, graphic, and sculptural works. The district court therefore erred by applying the safe harbor to both categories.

The court further held that floorplans and digital renderings can qualify as “pictorial representations” under section 120(a), even when they are functional or were created before construction. The timing of each challenged act matters: making, distributing, or publicly displaying an image after the building has been constructed may fall within the safe harbor, but the statute does not retroactively immunize earlier acts. Because section 120(a) is an affirmative defense and the complaint did not establish when each allegedly infringing act occurred, dismissal at the pleading stage was improper. The copyright claims were vacated and remanded.

The DMCA claims remained dismissed. Section 1202(b) requires CMI to have been removed or altered; it does not impose a general duty to add CMI to a newly created image that never contained it. Here, KFA’s identifying information remained on the files it supplied, while the floorplans and renderings were created without that information and in a different medium. The court left open where liability may begin when a defendant substantially or completely reproduces a source work while omitting its CMI.

Key Takeaways

• The architectural-works safe harbor in 17 U.S.C. § 120(a) does not narrow separate copyrights in technical plans and drawings.
• Floorplans and digital renderings may be pictorial representations even when they serve functional or marketing purposes.
• Section 120(a) applies act by act after construction and is an affirmative defense that defendants ordinarily must establish.
• DMCA section 1202(b) does not require creators of new derivative images to add CMI that was never present in those images.
• A court-ordered partial dismissal under Rule 41(a)(2) may be erroneous without necessarily defeating appellate jurisdiction.

Why It Matters

The precedential decision supplies the Fifth Circuit’s first extended guidance on the intersection of architectural works, drawings, and real-estate marketing images. Architects can hold overlapping copyrights with different scopes, while developers cannot assume that the public-building safe harbor automatically disposes of claims involving source plans or pre-construction conduct.

The DMCA holding also matters beyond architecture. Businesses creating a new representation from a protected work do not incur section 1202(b) liability merely because the new representation lacks the source’s attribution. But retyping, recreating, or otherwise reproducing a source while stripping its CMI may still qualify as removal. Copyright infringement and contract claims may remain available even when the DMCA does not.