The US Court of Appeals for the Fifth Circuit affirmed dismissal of a plaintiff’s Digital Millennium Copyright Act (DMCA) claims while vacating dismissal of its copyright infringement claims involving architectural floorplans, concluding that the Court had appellate jurisdiction despite the plaintiff’s voluntary dismissal under Fed. R. Civ. P. 41(a)(2). Kipp Flores Architects, LLC v. AMH Creekside Development, LLC, Case No. 23-50750 (5th Cir. Aug. 21, 2026) (Willett, J.) (Haynes, J., concurring) (Oldham, J., dissenting).

Kipp Flores Architects (KFA) owned copyrights in architectural building plans and technical drawings that it licensed to defendants for use in constructing buildings. The licenses required defendants to include specified copyright management information (CMI) when displaying the copyrighted works. KFA and defendant American Housing Ventures (AHV) later worked with other companies to develop floorplans and technical documents for AHV’s construction projects. Those documents did not contain the required CMI. AHV subsequently provided the floorplans to the remaining defendants for use in developing another building, and those defendants used the floorplans, still without CMI, in online marketing materials.

KFA asserted claims for DMCA violations, copyright infringement, conversion, and specific performance. The district court dismissed all of KFA’s DMCA and conversion claims, along with some of its remaining claims against certain defendants. Seeking to appeal the dismissals, KFA moved under Rule 41(a)(2) to voluntarily dismiss its remaining claims, and the district court granted the motion. KFA then appealed.

The Fifth Circuit first considered whether the Rule 41(a)(2) dismissal created an appealable final judgment. Rule 41(a) permits dismissal of an action, not individual claims. The Court nevertheless concluded that the district court’s error in permitting dismissal of KFA’s remaining claims did not deprive the Fifth Circuit of appellate jurisdiction. The error was a “reversible error, not an unappealable nullity.”

The Fifth Circuit also distinguished its precedent involving Rule 41(a)(1). Unlike a Rule 41(a)(1) dismissal, which is self-effectuating, a Rule 41(a)(2) dismissal requires a court order. The district court’s order granting KFA’s motion therefore constituted a “legally operative act of dismissal” sufficient to create appellate jurisdiction.

Turning to the merits, the Fifth Circuit addressed KFA’s copyright infringement and DMCA claims. The Architectural Works Copyright Protection Act (AWCPA) protects architectural works while earlier copyright law separately protected architectural plans as pictorial, graphic, or sculptural (PGS) works. Section 120(a) of the Copyright Act creates a safe harbor for pictures or other pictorial representations of architectural works embodied in buildings located in or ordinarily visible from a public place. Although § 120(a) does not apply to rights arising solely from PGS works, the Court concluded that KFA’s floorplans could fall within the safe harbor as far as they depicted copyrighted architectural works. The Court also concluded that § 120(a) can apply to representations created before a building becomes publicly visible but distributed or displayed afterward.

The Fifth Circuit nevertheless determined that the district court erred in dismissing KFA’s infringement claim under § 120(a). KFA was not required to plead facts negating the safe harbor because § 120(a) operates as an affirmative defense. KFA’s [...]

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