Hardingham v RP Data Pty Limited [2021] FCAFC 148

Hardingham v RP Data Pty Limited [2021] FCAFC 148

By majority, the Full Court held that the primary judge erred in finding that the oral agreements between the appellants and the agencies contained, as an inferred or implied term, authority for the agencies to grant REA a licence on REA's usual terms and conditions, including a perpetual and irrevocable right to license others. The express oral licence permitted use of the works for the marketing campaign and associated sub-licensing for that purpose, but the evidence did not establish actual common intention to confer the broader REA licence, and such a term was not necessary for the reasonable or effective operation of the informal agreements or to give them business efficacy. As a...

Jurisdiction
Australia
Judgment Date
18 August 2021
Procedural Posture
Appeal and Cross Appeal in a Copyright Infringement Proceeding / Full Court Appeal From a Decision Dismissing a Claim of Infringement of Copyright and Concerning Costs of a Cross Claim
Outcome
Appeal allowed by majority; cross-appeal to be allowed with costs according to the majority reasons; parties ordered to submit proposed orders giving effect to the majority reasons.
Legal Topics
['copyright Subsistence in Photographs and Floorplans' 'scope of Oral Licence' 'implied Terms in Fact' 'inferred Contractual Terms' 'sub Licensing' 'copyright Infringement' 'business Efficacy' 'cross Claim Costs']
['copyright' 'contracts' 'intellectual Property'] ['copyright Subsistence in Photographs and Floorplans' 'scope of Oral Licence' 'implied Terms in Fact' 'inferred Contractual Terms' 'sub Licensing' 'copyright Infringement' 'business Efficacy' 'cross Claim Costs']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in a Copyright Infringement Proceeding / Full Court Appeal From a Decision Dismissing a Claim of Infringement of Copyright and Concerning Costs of a Cross Claim

Legal Issues

  1. 1 ["Whether the primary judge erred in concluding that the oral agreements between the appellants and real estate agencies included an inferred or implied term authorising the agencies to grant REA a licence in the form required by REA's usual terms and conditions." "Whether RP Data's use of the appellants' photographs and floor plans was authorised by a chain of licences from the appellants to the agencies, from the agencies to REA, and from REA to RP Data." 'Whether the proposed term was necessary for the reasonable or effective operation of the informal oral contracts or to give business efficacy to those agreements.' 'Whether the cross-claim costs order should stand if the appeal succeeded.']

Ratio Decidendi

By majority, the Full Court held that the primary judge erred in finding that the oral agreements between the appellants and the agencies contained, as an inferred or implied term, authority for the agencies to grant REA a licence on REA's usual terms and conditions, including a perpetual and irrevocable right to license others. The express oral licence permitted use of the works for the marketing campaign and associated sub-licensing for that purpose, but the evidence did not establish actual common intention to confer the broader REA licence, and such a term was not necessary for the reasonable or effective operation of the informal agreements or to give them business efficacy. As a...

Court Disposition

Appeal allowed by majority; cross-appeal to be allowed with costs according to the majority reasons; parties ordered to submit proposed orders giving effect to the majority reasons.

Orders

  • ['Within seven days, the parties submit to the Associate to the presiding Judge, proposed orders giving effect to the reasons of the majority of the Full Court.']