Erroneous Rule 41(a)(2) Partial Dismissals Remain Final for Appeal; AWCPA § 120(a) Limits Only Architectural-Works Rights and Functions as an Affirmative Defense

I. Introduction

Kipp Flores Architects, L.L.C. v. AMH Creekside Development, L.L.C.; American Homes 4 Rent; American Housing Ventures, L.L.C. is a Fifth Circuit decision addressing (1) a jurisdictional problem created by the parties’ attempt to manufacture appellate finality using a partial voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2), and (2) multiple first-impression issues under two Copyright Act amendments: the Architectural Works Copyright Protection Act (AWCPA) and the Digital Millennium Copyright Act (DMCA).

The plaintiff, Kipp Flores Architects, L.L.C. (KFA), licensed residential building designs and related drawings to American Housing Ventures, LLC (AHV), later partially assigned to AMH Creekside Development, L.L.C., with marketing conducted by AMH Creekside and its parent American Homes 4 Rent (collectively, “the Creekside defendants”). KFA alleged that marketing floorplans and renderings omitted KFA’s copyright management information (CMI), and that defendants’ conduct infringed KFA’s copyrights and violated the DMCA.

The district court dismissed the DMCA claims and portions of the infringement claims—principally relying on 17 U.S.C. § 120(a) (AWCPA’s “pictorial representations” limitation). KFA then sought to dismiss its remaining claims with prejudice under Rule 41(a)(2) to create a final judgment for appeal. The Fifth Circuit had to decide whether the district court’s procedurally improper use of Rule 41(a)(2) to dismiss only part of an “action” destroyed appellate jurisdiction.

II. Summary of the Opinion

  • Appellate jurisdiction exists even though the district court erred by using Rule 41(a)(2) to dismiss only some claims: unlike an invalid Rule 41(a)(1) notice (which can be a “nullity”), an erroneous Rule 41(a)(2) court order still produces an appealable final judgment.
  • DMCA affirmed: failing to include KFA’s CMI on newly created floorplans/renderings is not “removal” or “alteration” of CMI under 17 U.S.C. § 1202(b); contracts cannot rewrite statutory elements.
  • Copyright dismissal vacated and remanded:
    • § 120(a) does not apply to PGS works (pictorial, graphic, and sculptural works) protected under 17 U.S.C. § 102(a)(5).
    • For architectural works under § 102(a)(8), the floorplans/renderings qualify as “pictorial representations” within § 120(a)’s safe harbor.
    • However, the district court still erred in dismissing at the pleading stage because § 120(a) is an affirmative defense and the timing needed to establish the defense did not appear on the face of the complaint.

Judge Haynes concurred only in the judgment. Judge Oldham dissented on jurisdiction, arguing that an invalid partial Rule 41 dismissal is a “nullity” that defeats finality under Fifth Circuit precedent.

III. Analysis

A. The Jurisdiction Holding: Invalid Rule 41(a)(2) “Claim-Dismissals” Are Error, Not a Nullity

1. Precedents Cited (Jurisdiction / Finality)

The court confronted a line of Fifth Circuit authority that treats invalid Rule 41(a)(1) notices dismissing fewer than all claims as jurisdictionally ineffective, and a broader question: whether that logic extends to invalid Rule 41(a)(2) dismissal orders.

  • Bailey v. Shell W. E&P, Inc. and CBX Res., L.L.C. v. ACE Am. Ins. Co.: reiterated the Fifth Circuit’s long-standing construction that Rule 41 speaks to dismissal of an “action” and cannot be used to dismiss only some claims against a single defendant.
  • Exxon Corp. v. Md. Cas. Co.: held that a plaintiff’s unilateral Rule 41(a)(1) notice dismissing only one claim was invalid, leaving the remaining claim “still pending in district court,” thereby destroying finality and appellate jurisdiction.
  • Williams v. Taylor Seidenbach, Inc. (en banc) and Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black: included language suggesting invalid Rule 41(a) partial dismissals are “nullit[ies].” The majority opinion here treated that language as non-controlling, emphasizing the difference between self-executing notices under Rule 41(a)(1) and court-ordered dismissals under Rule 41(a)(2).
  • N.Y. Life Ins. Co. v. Brown: supplied the general principle that a judgment is not “void merely because it is erroneous.”
  • Stelly v. Duriso (quoting Hamer v. Neighborhood Hous. Servs. of Chi.), Murphy v. Uncle Ben’s, Inc., and Anthology, Inc. v. Tarrant Cnty. Coll. Dist.: framed the constitutional/structural backdrop—only Congress and the Constitution define federal jurisdiction; procedural rules are generally not jurisdictional.
  • Ueckert v. Guerra: used for the practical finality inquiry—whether the district court intended “to have nothing further to do with . . . the case.”

2. Legal Reasoning

The court accepted two propositions simultaneously:

  1. The district court erred: Rule 41(a) permits dismissal of an “action,” not a subset of claims. The correct mechanism for dropping claims is typically Rule 15 (amendment), not Rule 41(a).
  2. The error is not jurisdictional under Rule 41(a)(2): the key distinction is between:
    • Rule 41(a)(1) notices, which are self-effectuating only if the rule’s conditions are met; an invalid notice results in no dismissal at all.
    • Rule 41(a)(2) dismissals, which occur “by court order”; even if the order is wrong, the order exists and produces an appealable judgment, subject to reversal on the merits.

Conceptually, the court treated an invalid 41(a)(2) dismissal like any other erroneous dispositive ruling (e.g., misapplied Rule 12(b)(6) or Rule 56): it is reviewable error, not a nullity that deprives appellate courts of power to correct it.

3. Impact (Jurisdiction / Litigation Strategy)

This holding matters beyond copyright. Parties often seek appellate review after partial dismissals by voluntarily dismissing what remains. After this case:

  • In the Fifth Circuit, an erroneous Rule 41(a)(2) partial-claim dismissal order does not automatically defeat appellate jurisdiction—reducing the risk that appellate courts will dismiss for lack of finality when a district court has clearly entered a with-prejudice judgment closing the case.
  • District courts are still instructed that partial claim-dismissals are not authorized by Rule 41(a), encouraging proper use of Rule 15 amendments or Rule 54(b) where available.
  • Judge Oldham’s dissent, emphasizing Williams v. Taylor Seidenbach, Inc. and Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, signals a continuing internal debate that could prompt en banc reconsideration, especially if litigants exploit Rule 41(a)(2) to manufacture finality.

B. The AWCPA Holding: § 120(a) Limits Only Architectural Works, Not PGS Works; and § 120(a) Is an Affirmative Defense

1. Precedents Cited (Architecture Copyright / Statutory Interpretation)

  • Imperial Homes Corp. v. Lamont: illustrated the pre-AWCPA regime—copyright in plans did not necessarily grant an exclusive right to reproduce the building pictured.
  • T-Peg, Inc. v. Vt. Timber Works, Inc. and Scholz Design, Inc. v. Sard Custom Homes, LLC: used to explain architecture’s “two forms of protection” post-BCIA/AWCPA: (i) plans as PGS works (§ 102(a)(5)), and (ii) buildings/designs as architectural works (§ 102(a)(8)).
  • Leicester v. Warner Bros.: recognized that Congress carved out pictorial representations of constructed architecture from full copyright control.
  • Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc.: the Eighth Circuit decision KFA invoked to argue that floorplans are not “pictorial representations” under § 120(a). The Fifth Circuit rejected Designworks’ narrowing approach.
  • Interpretation authorities and cases: Fischer v. United States (context), Dubin v. United States (headings as interpretive tool), Taniguchi v. Kan Pac. Saipan, Ltd. (consistent-usage canon), and canons noscitur a sociis and ejusdem generis.
  • Pleading/affirmative-defense rules: In re 3 Star Props., L.L.C. (affirmative defenses at 12(b)(6) only if evident on the face of the complaint), Cunningham v. Cornell Univ. (burden for exemptions), and Meacham v. Knolls Atomic Power Lab’y (background convention).
  • Accrual framing: Petrella v. Metro-Goldwyn-Mayer, Inc. (each infringing act accrues separately).

2. Legal Reasoning

(a) § 120(a) Does Not Reach PGS Works

The court drew a bright line from text: § 120(a) limits “[t]he copyright in an architectural work that has been constructed.” It does not mention PGS works. Because KFA alleged copyrights in both (i) architectural works (§ 102(a)(8)) and (ii) technical drawings/plan materials that may qualify as PGS works (§ 102(a)(5)), the district court erred by using § 120(a) to dismiss claims premised on PGS copyrights.

(b) “Pictorial Representations” Includes Floorplans and Digital Renderings

For architectural works (not PGS works), § 120(a) potentially immunizes “the making, distributing, or public display” of “pictures, paintings, photographs, or other pictorial representations” of a constructed building visible from a public place.

The court rejected KFA’s attempt—grounded in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc.—to narrow “pictorial representations” to “artistic” images as opposed to functional depictions. The Fifth Circuit reasoned that:

  • Ordinary meaning of “pictorial representations” naturally covers drawings and renderings that depict a building design.
  • The associated-words and ejusdem generis analysis does not support an “artistic-only” class because “pictures” and “photographs” can be utilitarian (e.g., crime scene photos), and the list’s common feature is “pictorial,” not “artistic.”
  • Broader statutory context elsewhere uses “pictorial representation” in non-artistic registration contexts (e.g., useful-article design registration), reinforcing a broader reading.

Bottom line: floorplans and renderings can qualify as § 120(a) “pictorial representations,” at least when they depict the architectural work embodied in a building that is (as alleged) constructed and ordinarily visible from a public place.

(c) Pre-Construction Creation vs. Post-Construction “Acts”: § 120(a) Turns on When the Challenged Conduct Occurred

KFA argued § 120(a) should not protect images created before construction. The court disagreed, holding the temporal limitation (“architectural work that has been constructed”) attaches to the alleged infringing act (“making, distributing, or public display”), not necessarily the moment the depiction was first created.

(d) § 120(a) Is an Affirmative Defense—So Dismissal at the Pleading Stage Requires the Defense to Appear on the Face of the Complaint

Critically, the court held § 120(a) is best treated as a statutory exemption/safe harbor and therefore an affirmative defense. Under In re 3 Star Props., L.L.C., dismissal on an affirmative defense is proper only when the defense is apparent from the complaint itself. Here, the complaint did not allege when the relevant “making, distributing, or public display” occurred relative to construction; therefore, the district court’s Rule 12(b)(6) dismissal was premature.

3. Impact (Architecture Copyright Claims in the Fifth Circuit)

  • Pleading strategy: Architects and designers often register both (i) the building design as an architectural work and (ii) drawings/plans as PGS works. This opinion makes that dual-registration strategy more valuable because § 120(a) does not automatically sweep in PGS-based claims.
  • Early dismissal becomes harder: Defendants invoking § 120(a) must be prepared to establish timing and other elements; plaintiffs can often survive a motion to dismiss if the complaint is silent on when distribution/display occurred.
  • Broader § 120(a) scope for marketing materials: By rejecting Designworks’ “artistic-only” limitation, the Fifth Circuit’s interpretation favors builders, developers, and marketers who distribute renderings and floorplans of constructed houses (subject to the defense being properly established).

C. The DMCA Holding: § 1202(b) Requires Removal/Alteration—Not Mere Omission—and Contracts Cannot Redefine Statutory Elements

1. Precedents Cited (DMCA / Contract vs. Statute / Pleading)

  • Nat’l Aeronautics & Space Admin. v. Fed. Lab. Rels. Auth. and United States v. Navarro: supported the principle that parties cannot bind courts to erroneous interpretations of federal law.
  • Cellport Systems, Inc. v. Peiker Acustic GMBH & Co. KG: distinguished as a breach-of-contract case, not a statutory infringement case; a contract can create royalties without proving patent infringement, but it cannot convert contract terms into the elements of a federal statutory claim.
  • Alexander v. S.C. State Conf. of the NAACP: invoked for the proposition that parties cannot “by stipulation amend the law,” while they may stipulate facts.
  • Ashcroft v. Iqbal: used to disregard conclusory allegations that merely parrot statutory elements (e.g., “CMI was removed or altered”) without factual support.
  • Fischer v. Forrest: cited for the observation that viable CMI-removal claims tend to involve substantial or complete reproduction of the underlying work while omitting CMI.

2. Legal Reasoning

KFA’s DMCA theory was that defendants violated 17 U.S.C. § 1202(b) by distributing floorplans/renderings that did not include KFA’s CMI. The court rejected this as a matter of statutory text:

  • Each relevant subsection of § 1202(b) requires that CMI be “removed” or “altered”. These verbs presuppose CMI was present and then taken away or changed.
  • On the pleaded facts, KFA’s CMI remained on the copies KFA provided; it was never present on the newly created floorplans/renderings, so it could not have been removed or altered from those items.
  • Conclusory pleading (“CMI removed or altered”) cannot substitute for facts under Iqbal.

The court also rejected KFA’s contract-based “estoppel” argument: even if the licensing agreements stated that omission of CMI would be a “violation of the DMCA,” private parties cannot rewrite statutory elements. At most, such a clause supports a contract claim; it cannot manufacture a statutory DMCA claim.

3. Impact (DMCA CMI Litigation and Contract Drafting)

  • DMCA claims narrowed: In the Fifth Circuit, plaintiffs must plausibly allege actual “removal” or “alteration,” not merely that a downstream depiction lacks CMI.
  • Contracts still matter—but as contracts: Parties can require attribution/CMI placement and define consequences, but enforcement runs through breach-of-contract remedies unless the statutory elements are independently satisfied.
  • Practical compliance takeaway: Rightsholders seeking DMCA leverage should ensure CMI is integrated in a way that downstream reproductions likely copy (e.g., embedded overlays, metadata practices where relevant), while recognizing that omission alone from newly created materials may not trigger § 1202(b).

IV. Complex Concepts Simplified

  • Rule 41(a)(1) vs. Rule 41(a)(2): Rule 41(a)(1) can dismiss a case automatically by notice (if conditions are met). Rule 41(a)(2) requires a judge’s order. This opinion treats erroneous 41(a)(2) dismissals as still “real” judgments that can be appealed, even if they were procedurally improper.
  • “Action” vs. “Claim”: An “action” is the whole lawsuit; a “claim” is one legal theory within it. Rule 41 speaks in terms of dismissing an “action,” which is why partial claim dismissals under Rule 41 are improper.
  • PGS works vs. architectural works: PGS works (plans/drawings) are protected under § 102(a)(5). Architectural works (the building design embodied in a building) are protected under § 102(a)(8). AWCPA § 120(a) limits only architectural works, not PGS works.
  • AWCPA § 120(a) safe harbor: Once a building is constructed and visible from public places, the architect generally cannot stop people from making/distributing/displaying pictures and other pictorial depictions of it.
  • Affirmative defense: A defense the defendant must prove. At the motion-to-dismiss stage, courts can dismiss on an affirmative defense only if it clearly appears from the complaint.
  • DMCA CMI (“copyright management information”): Information identifying the author/owner and related copyright details. § 1202(b) targets tampering—removing or altering CMI—not simply failing to add it to a new, different depiction.

V. Conclusion

The Fifth Circuit’s decision does three significant things. First, it creates a practical jurisdiction rule: an improper Rule 41(a)(2) partial-claim dismissal is reviewable error, not a jurisdiction-destroying nullity. Second, it clarifies AWCPA doctrine: § 120(a) does not limit PGS copyrights, “pictorial representations” is broad enough to cover floorplans and renderings, and § 120(a) operates as an affirmative defense ill-suited for dismissal when key facts (like timing) are absent from the complaint. Third, it narrows DMCA § 1202(b) claims by insisting on what the statute says—removal or alteration—and by refusing to let private contracts transmute attribution obligations into federal statutory violations.