Written by In the recent case of Realestate.com.au Pty Ltd v Hardingham [2023] HCA 39, the High Court considered whether oral agreements between a real estate photographer and various real estate agencies limited the licence to use copyright works.
Mr Hardingham was a professional photographer and the sole director of REMA. REMA specialised in commercial and residential real estate marketing photography and had a licence from Mr Hardingham to sublicence the use of his images. Between September 2014 and June 2018, several real estate agencies engaged Mr Hardingham to capture photos and create floor plans for upcoming sales and lease campaigns. The arrangement between him and the real estate agencies was only verbal and not documented in a formal written agreement.
Realestate.com.au Pty Ltd (‘REA’) controlled the website realestate.com.au, where agencies published their listings using photos supplied by Mr Hardingham. REA then gave those images to RP Data Pty Ltd, which had a licence arrangement with REA, under which it would download material from the REA website.
In 2018, Mr Hardingham brought proceedings against RP Data for infringing copyright by using his images. The issue was whether Mr Hardingham granted a licence to the agencies that allowed them to sub-licence the use of his photos to RP Data. Mr Hardingham claimed that the licence was subject to the limitation that the photos were only to be used for the purpose of marketing the property. Mr Hardingham further argued that once the sale or lease of the property was completed, the licence came to an end.
The High Court found that RP Data did not infringe copyright. The High Court confirmed that contracts should be construed objectively, and the actual intentions or subjective views of the parties are irrelevant. The question is what a reasonable person would understand that the parties agreed to by reason of their words and conduct in light of the circumstances. The High Court found there was nothing in the dealings between Mr Hardingham and the agencies that could lead a reasonable person to comprehend that the parties had agreed to a licence that was limited in the way contended by Mr Hardingham.
This case serves as an important reminder that platforms hosting images for real estate agencies should ensure they are adequately protected from allegations of copyright infringement.