The case of Hardingham v RP Data Pty Limited [2021] FCAFC 148 considered the scope of the right to use photographs that were taken for the purpose of marketing residential properties on realestate.com.au. Mr Hardingham was a professional photographer and director of a company that provides photographs and other graphic images including floor plans to residential and commercial real estate agencies for ‘use in marketing campaigns for the sale or lease’ of the relevant property.

The appellants claimed infringement of their copyright as owner and exclusive licencee subsisting in the photographs of the properties by conduct of RP Data Pty Ltd (RPD) in reproducing the photographs on RPD’s website and manipulating the images so as to superimpose a logo.

The issue in the case was whether the authority extended to allow the agents the right to edit the digital versions of the photographs and floorplans. The photographer and the agents had made an informal oral arrangement granting the agent permission to ‘use’ the works ‘for the purposes of the marketing campaign.’ However, the Full Federal Court of Australia overturned the decision of the Federal Court of Australia and found that the oral agreement did not confer upon the agencies an implied right to sub-licence the works for the purposes of the marketing campaign.

Whilst the agreement was expansive, it did not enable third parties to virtually expropriate the ownership of the copyright in the works, as these terms and conditions were never communicated to the photographer. This case is illustrative of the complicated nature of the scope of copyright licences.

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