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Major copyright ruling a ‘double-edged sword’?

Business dealings between real estate photographers and agents may become more formal and time-consuming, after a photographer won a copyright infringement appeal against Realestate.com.au for unlawfully sub-licensing his images.

While the Appeals Court ruled that Realestate.com.au (REA) used overreaching rights-grabbing terms and conditions to commit copyright infringement, leading Australian IP lawyer, Ian McDonald, is concerned this ruling could be a ‘double-edged sword’ as the giant News Corp-owned sales platform seeks a legal workaround.

REA is a platform used by real estate agents, who don’t typically own the image copyright, but the company initially convinced the courts that photographers grant them a licence simply by being aware their images are published there.

It’s a fascinating yet complex legal dispute, which may have a long-standing impact on Australian real estate photography business operations.

Background on Hardingham v RP Data + REA

Managing director and lead photographer of Real Estate Marketing Australia, James Hardingham, sued third-party property analytics firm, RP Data, in 2018 for publishing his images for commercial usage. RP Data acquired the real estate images via an illegitimate sub-licence from REA, which later joined RP Data as a defendant in the lawsuit.

REA for copyright infringement after discovering his images sub-licensed to a third-party property analytics firm, RP Data.

Almost everyone with a passing interest in buying or renting a property in Australia has ended up on REA. It’s an essential online marketing platform for real estate agents to list properties. When agents sign up to the service, they tick a box that grants REA an ‘irrevocable and perpetual licence’ to use the content from their listings, including images, ‘for any purpose related to our business’.

But in many cases, including this one, photographers retain the copyright to the pictures, and real estate agents have limited usage rights that only extends to property marketing campaigns. This means real estate agents cannot grant REA an ‘irrevocable and perpetual licence’ to sub-licence images to third-party firms, unless it’s to somehow market the property.

Seems simple enough, right? Not quite! Especially considering REA’s initial successful argument, now overturned.

‘The REA was basically saying that photographers know that real estate agents don’t just commission their images to sell the property,’ McDonald told Inside Imaging. ‘But also pass the data on to this other organisation [REA] which uses it forever and a day.’

Fortunately, the appeals court weren’t sold on that argument!

Implied vs express licensing

Like many photographers, Hardingham’s work stems primarily from a phone call with existing clients. It’s an informal and quick exchange, with a real estate agent asking him to photograph a property on a specific date. From a legal standpoint, this discussion serves as the basis of their contractual agreement. Both parties understand that Hardingham will be paid to take photos of a property, and the agent will use the images in a marketing campaign.

This kind of informal business agreement is considered to be an implied licensing contract. It’s the opposite to express licensing – a formal process where a written contract, with clear usage limitations and rights, is signed by both parties.

While having contracts signed in writing is beneficial from a legal standpoint, McDonald explains that for some scenarios it’s impractical and unnecessary to undergo this rigorous formal process.

‘A lot of working photography is based on a phone call or e-mail,’ he explained. ‘It’s a longstanding copyright principal that if you commission someone to do something, you’ll have the rights for those purposes [and not others].

‘All of this is basic copyright law, particularly with implied licensing. If a company rings a writer up to do a report for their shareholders, of course it’s going to shareholders. If you write a letter to the editor, the editorial staff don’t need to come back and seek permission to publish it in the paper.’

And so when a photographer is called up to shoot a property, the understanding is the photos will be used exclusively in a property marketing campaign. While this includes listing the property on marketing platforms like REA, the agent cannot then grant REA the right to monetise the photographer’s images by selling them to third-party analytics firms.

‘If the photographers themselves submitted images to the platform [there would be a different outcome], but because the photographer wasn’t dealing with REA, it’s a complete overreach,’ McDonald said. ‘Just because a photographer knows Realestate.com.au exists doesn’t means they grant a licence to it. I’m surprised the first court found it the way it did.’

The double-edged sword: REA’s REAction

As previously stated, REA is a big mover and shaker in the real estate industry. And part of its business model is sub-licensing content. McDonald doesn’t think REA will suddenly dump this revenue generator after losing the lawsuit, and instead anticipates that REA’s powerful legal team will hit the ground running to find a solution.

‘The legal principal establishes that the ball is in the court of the real estate agent and REA,’ he said. And he anticipates they’ll potentially ‘introduce practices which appropriate more broadly, regularly, and consistently, the rights from photographers’.

One possibility is REA, or larger real estate franchises, will require photographers to sign express licensing contracts to cover authorisation beyond a marketing/sales campaign. It’s possible REA’s legal team will draft up a contract, and make it compulsory for all agents across Australia to have photographers sign up.

‘Savvy real estate agents may look at acquiring the copyright, or an irrevocable licence to authorise third-party use online,’ McDonald said. But the ‘braver photographer’ may try to counter this and ‘capture in writing that it’s for the agent’s purpose only’, and future use could attract a fee.

After all, McDonald concludes, ‘why should photographers splice someone else with a business resource?’ Especially when that someone else, REA Group, generated just shy of $1 billion revenue in 2021.

Click here to read the court papers. But be warned, it’s a tough one!

James Hardingham declined to comment due to ongoing court proceedings.

4 Comments

  1. Robert Robert September 8, 2021

    Last century I saw the same sort of thing play out with editorial photography.

    This David and Goliath battle for real estate photographers has been going on for well over a decade and it took someone like James Hardingham to bring it to a head. Online publishers such as REA “require” agents to supply images of properties listed to RP Data regardless whether they have the rights to do so. The Australian Government is using stolen intellectual property when engaging RP Data for its statistics. Of course that’s just my personal opinion.

    There is a clear imbalance of power between photographers and the real estate industry. I imagine some people thinking, “boo hoo, technology made your job redundant”. That’s not the case here, it’s a much bigger business using unfair pressure on a small independent businesses. The niche of high end real estate photography requires special skills (architectural, HDR, drone, video, editing, Matterport virtual tours, etc,) plus regular professional skills that don’t easily translate to other genres.

    As Ian implied, what will happen is real estate agents will use contracts to grab all photography rights for the same fee (those who they don’t already do so). Unfortunately some photographers will give away their rights just to get a gig dragging the profession down with them:
    https://www.whattheduck.net/image/140392434633

    Otherwise real estate agents will make photography/video/graphic design a full time employee position.

    • Will Shipton Will Shipton Post author | September 8, 2021

      Hey Robert,
      Thanks for the comment. It’s an unfortunate imbalance, as real estate photos are really one of the first things anyone looks at when browsing properties – whether it’s an el cheapo rental or a big manor for sale on the hill. Obviously it’s a huge contributor in generating sales (besides the price!).

      It’ll be interesting to see how REA/agents respond, but good on James Hardingham for lugging it out in court. If I recall correctly, he first discovered the infringement in 2014, sued in 2018, lost in 2020, and successfully appealed in 2021. What a ride.

  2. Paul Dawson Paul Dawson September 8, 2021

    Great article Will. Another issue is when the images are sold/lent to the agent for use to sell the property and then they get used by the new purchaser to advertise the property for rent or AirBNB after they have bought it. Or if a property fails to sell (not lately) then the vendors takes/steals/uses those photos and uses them on “ReDIY” or similar. James Hardingham needs an award for service to the industry, the guy is a legend 🙂 REA should be paying a split royalty with the agent, say 50/50 who then splits it with the photographer, say 50/50. That would be a good solution. win/win. cheers Paul

  3. Andrew Andrew September 8, 2021

    Wow, James got a lot further with Rp Data then I ever did. Good on him and his legal team!

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