From 2009 James Hardingham, a professional photographer, through his company Real Estate Marketing Australia Pty Ltd (REMA) had been commissioned by several real estate agencies to photograph residential properties, make floor plans and supply images in digital form to be used for marketing campaigns. The images were provided to Realestate.com.au Pty Ltd (REA) for uploading online by RP Data Pty Ltd (RP Data).

The images were uploaded within a few days of being provided and remained online after the completion of any sale or lease to provide historical information about the property.

In January 2014, Mr Hardingham and his company wrote to RP Data alleging a breach of their copyright. RP Data denied any wrongdoing and referred Mr Hardingham to their website, which in the terms and conditions granted a perpetual royalty-free licence in respect of the use of such images.

The matter that was litigated was the extent of that licence. Mr Hardingham argued that the licence was subject to a limitation that the images were to be used only during the marketing campaign and at the end of any such campaign the licence came to an end.

Judge Thawley first heard the matter and held that the licence as argued for RP Data was correct. He held that the licence was to be inferred from the conduct of the parties and to give business efficacy to the agreements between the parties.

By a majority, the Full Court of the Federal Court disagreed and held that because the contracts contained an express term that the licence was limited for the purposes of a particular campaign there was a breach of copyright by leaving them online.

The High Court rejected the approach of the Full Court (Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39) and held that one must look at the words and conduct of the parties in light of the surrounding circumstances. Images such as those provided by Mr Hardingham had been retained on the website of REA since the website was created in 2003. The High Court held that there was nothing in the conduct of the parties that would lead a reasonable person to believe that the licence was limited as suggested by Mr Hardingham. Rather a reasonable person would conclude that the licence was as contended for by REA.

The High Court held that there had been no breach of copyright.