A recent copyright dispute between a real estate photographer and third-party agency has demonstrated the overall lack of control photographers have over their work in the real estate industry.
Fundamentally, photographers are being forced to assign their total copyright or not get the assignment. Sydney-based real estate photographer, James Hardingham, operates photography and floorplan business, Real Estate Marketing Australia (REMA). Hardingham launched a copyright infringement claim against RP Data, a property analytics firm, after he discovered his work published on its website, Corelogic.com.au.
Hardingham’s clients are primarily real estate agents and they publish his work in property marketing materials including on Realestate.com.au (REA), an essential third-party property maketing provider. And like many photography businesses, Hardingham’s agreement with clients is primarily verbal, an ‘implied licence’ – in other words, the photographer doesn’t seal the deal with a formal written contract that specifies licensing terms of use. Well, he didn’t supply any contracts as evidence, which drastically weakened his case.
When Hardingham’s clients upload content to Realestate.com.au, they agree to terms and conditions that provides REA the ability to sub-licence the content.
The terms read:
‘…In consideration for us granting a right to upload listings to the Platform and the other services we provide, you grant us an irrevocable, perpetual, world-wide, royalty free licence to publish, copy, licence to other persons, use and adapt for any purpose related to our business any content you provide to us during the Term, and this licence survives termination of this Agreement by you or us’
While these terms and conditions are often safeguards used by websites that allows users to upload content, REA do actually sub-license the content. And RP Data is just one of the sub-licencees.
Before moving on to the technicalities of Hardingham’s case, it’s worth noting that practically all real estate agents use REA. This means that if a photographer wants to secure work in this sector, they must accept the fact that REA will be granted usage rights to all images. Even the judge, Justice Thawley, acknowledges this is a reality faced by Hardingham and others, and he’d likely be replaced if he were to attempt to negotiate a fairer licensing agreement.
‘It may be that, if the applicants [Hardingham] had said to the agencies that the agencies were not authorised by the applicants [Hardingham] to give the aforementioned licence to REA, those agencies would have retained a different photographer. If the agencies had not agreed to REA’s terms and conditions because they were not authorised by the applicants [Hardingham] to give the licence which REA required, they would not have been able to use the platform in relation to the relevant property and would have sought a photographer who was prepared to allow them to grant the relevant licence.’
Chris Shain, commercial photographer and copyright expert and advocate, informed Inside Imaging these unfortunate legal problems typically arise when there is no formal agreement regarding licensing usage.
Hardingham argued his ‘implied licence’ with clients only lasted until the sale or lease of a premises and the usage was limited to the marketing of the property. However he did authorise agents the ability to sub-license the content via REA. The problem with Hardingham’s claim is that anyone with even a passing interest in real estate will know that ‘sold’ properties remain listed on Realestate.com.au, including images, so Judge Thawley couldn’t accept this wasn’t known to Hardingham.
‘No evidence was adduced by any party from any agent or agency. There was no evidence of any discussion between the applicants (photographer) and the agencies about intellectual property rights. The applicants gave no evidence that they sought to impose any restriction on the way in which the agencies dealt with REA. The applicants gave no evidence that they informed the agencies that they were not authorised to give a licence to REA or to give the licence set out in the REA terms and conditions.’ Judge Thawley J goes on, but you get the idea.
Onur Saygin, a lawyer at Shelston IP, published a blog post regarding the case. While he says the case serves as a reminder ‘that clear express licence terms are preferable’, he also concludes that the licensing situation for real estate photographers is pretty bleak.
‘Interestingly, ongoing publication of photographs and floor plans on realestate.com.au and corelogic.com.au was found to be so commonplace that the Court was prepared to find that the photographer always knew full well of the uses that would be made by the real estate agents, their sub-licensees (REA) and further sub-licensees (RP Data). This set of circumstances was fatal to the copyright owners’ claims, as they could not establish that their initial licence to the agents was limited to use during a sales campaign, when they knew such content remained on the realestate.com.au and corelogic.com.au platforms as part of historical sales data (eg, in the “Sold” section).
It would probably more fruitful if real estate photographers worked out a licencing deal with RPdata et al…….
RPData et al have no incentive, the power imbalance is too great. Any RE agent/company who decided to persue an alternative arrangement would lose access to the one platform that brings most of their business.