The High Court of Australia has overturned a major copyright ruling that sided with a real estate photographer, who sued Realestate.com.au for sub-licensing his photos using rights-grabbing terms and conditions.
In September 2021, Inside Imaging reported on a triumphant David-versus-Goliath court battle between an independent real estate photographer, James Hardingham, who took on Realestate.com.au (REA) and property analytics firm, RP Data.
Court proceedings were launched by Hardingham in 2018, who initially lost the lawsuit in 2020. He then successfully claimed a win through an appeal in 2021; only to now have that decision overturned in December 2022 by the High Court. Quite the rollercoaster court battle with a devastating outcome for Hardingham, who is now ordered to pay a majority of REA and RP Data’s legal costs.
For a backgrounder, here’s an edited excerpt of our previous coverage:
The majority of Australian real estate agents use REA to market properties online. 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’.
And while many online platforms include similar terms as a generic legal protection, REA commercialise the images by sub-licensing them to RP Data, which packages property data into reports for real estate agents.
Hardingham successful appeal argued that his clients, real estate agents, are granted limited usage rights that only extends to property marketing campaigns. Once the property sells, the agent’s image licence expires, and they cannot then grant REA a ‘perpetual licence’.
Hardingham’s appeal hinged on an interpretation surrounding ‘implied’ and ‘express’ licensing.
Like many photographers, Hardingham’s jobs stem 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, and is considered an implied licensing contract. 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. 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, leading Australian IP lawyer, Ian McDonald, told Inside Imaging that in 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].
The Federal Court judges were satisfied by Hardingham’s argument that the implied licence did not extend beyond the marketing of the property. Therefore, agents cannot grant REA permission to monetise the photographer’s images by sub-licensing them to a third-party analytics firm.
At the time, McDonald anticipated that REA wouldn’t simply walk away from a lucrative component of its business model, and speculated that REA’s powerful legal team would find a solution.
REA has always hosted historical listings of properties after they have been sold or rented. This listing includes photos, floor plans, pricing data, descriptions, and so forth. It has done this since its inception in 2003.
REA and RP Data’s High Court appeal argues that a ‘reasonable person’ – including Hardingham and all agents – know REA has this content appear in historical listings. Hardingham cannot therefore claim the implied licence was limited to the duration of the marketing campaign.
Here’s the Court’s Reasons for Judgment.
‘Most agencies in Australia conducted their marketing using the REA platform. This was well known. Mr Hardingham, REMA, and the agencies knew that REA uploaded photographs and floor plans of a property to be marketed to its platform and that it then maintained them there after the completion of the sale or lease as available to its subscribers as historical transactions. REA had done so since the platform came into existence in 2003 and over the course of the dealings between the parties. This is hardly consistent with the licence to be given by the agencies to REA being limited in the way contended for.
Within a few days of REA uploading the images they appeared on RP Data’s service and remained there post sale or lease. This too must have been apparent to Mr Hardingham and REMA. And prior to their entry into the relevant transactions, Mr Hardingham and REMA understood that RP Data had a contractual relationship with REA by which REA licensed it not only to use the data but in terms which allowed RP Data to keep the data in its service.’
As previously stated, it’s a terrible turn of events for Hardingham. As an independent photographer fighting a multi-billion dollar corporation in the legal arena, the odds were always stacked against him. But for a moment it looked like he would prevail, and many real estate photographers saw his effort as a great service to the industry.
A Queensland law firm, Carter Capner Law, even set up a register of interest for professional photographers to participate in a class action suit to recover fees from offending marketing platforms.
Hardingham will be required to pay astronomical legal costs, and the rights are eroded for real estate photographers.
Here’s a real estate photographer’s response to the outcome:
‘The whole thing beggars belief. It seems to me that Corelogic/RP Data, in Australia at least, is now the only entity in the entire world that can use my photos without permission for whatever purpose, including to resell my photos, without having to pay a cent to me. So it’s okay for REA to demand that agents grant them essentially copyright ownership (that they then transfer to RP Data for a fee, thus generating two income streams) before agents are allowed to upload their images to REA’s website, and the photographer has no say in the matter. Copyright laws need to be changed to fix this! Bully-boy tactics by corporations with deep pockets often overcome small businesses. Where’s the justice?’
Click here for the Court’s Reasons for Judgement document.