This is a case of significance to the property industry. The appeal concerns the alleged infringement of the appellant photographer’s intellectual property rights in images and floor plans he created pursuant to informal contracts with real estate agents. The images and floor plans were displayed on platforms, including RP Data Professional and on the website Realestate.com.au, for the marketing and sale of residential land.
The issue on appeal was whether the trial judge was correct to conclude that RP Data and Realestate.com.au used the images and floorplans under a licence, which was binding on the appellant photographer (thus there was no infringement). By 2-1 majority, the Full Court of the Federal Court overturned the trial judge’s conclusion as to infringement. The Court’s reasons contain a useful summary of the principles relevant to the implication of terms into a contract, particularly when the contract is an informal one.
Anthony Messina (with M D Martin QC) appeared for RP Data at trial and on appeal, instructed by Mills Oakley.
The judgment is published here.