Content upload
LegalSeptember 14, 2021

Beware third party rights in uploading content

The professional real estate photographer in this case provided photographs and floor plans at the request of real estate agents for the purpose of marketing residential properties. There were no formal agreements or anything beyond a phone call from the estate agent. It was intended that the photographs would be up-loaded by the real estate agency to the website to advertise the properties for sale or lease. The website was operated by REA. To upload the images, the estate agent was required to agree to the standard terms and conditions of REA. These were drafted in wide terms, which included an unlimited right to sublicense. In reliance upon this, REA sublicensed the content (including the photographs and floor plans) to the website, which operated a property information data base for its subscribers. The images were original artistic works under the Copyright Act 1968, and Mr Hardingham was the copyright owner, although that had been contested. He alleged infringement of copyright in the works because he did not consent to the sublicence or receive a further fee.

The problem was that the REA terms and conditions were never mentioned in the communications with the photographer, or in the course of dealing. The legal issue was about trying to bind the photographer to the REA terms and conditions, either by implying them into the oral agreement with the estate agent or by proving that the photographer was aware of them by some other means. The Federal Court held, by a majority, that the photographer was not bound by the REA terms and conditions, therefore REA had no right to sublicence the works, and Corelogic had infringed the photographer’s copyright by posting them on its website.

Source: Hardingham v RP Data Pty Ltd (2021) AIPC ¶92-598; [2021] FCAFC 148, 18 August 2021.
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