Real estate photographer, James Hardingham, who lost a major copyright court case against Realestate.com.au (REA) and RP Data, will not be ordered to pay his opponents full legal fees.
The commercial litigation funder, Court House, has been ordered to pick up some of the legal costs for Hardingham.
The battle against corporations was fought by Hardingham's. The favourable ruling was overturned by the high court after the REA and RP Data appeal.
There is a background.
Real estate photos, floor plans, and other marketing content can be found on REA, a massive property marketing platform. The real estate photographers who are most likely the copyright holders are REA. Real estate agents agree to a terms of service that allows REA to use the marketing materials.
The implied licence only lasts until the agent sells the property, even though there is no contract between himself and the agent. The court agreed. It is not possible for REA to licence/sub licence content from agents.
The legal proceedings were lost in 2020 and then successfully appealed in 2021. The real estate corporations argued that a reasonable person would know that REA stores and displays copyrighted content from historical property listings, so he could not claim the implied licence was only for marketing.
Here, you can read more.
The final ruling determined that Hardingham must pay legal fees. The best and most expensive legal representation in the country can be found at REA and RP Data. The bill for a four year battle is frightening. It was a very bad outcome for Hardingham.
The courts have ruled that Hardingham's litigation funder, Court House, will pay a lot of the opponent's legal fees.
There is a risk of litigation.
If Hardingham wins the case, Court House will pay the principal proceedings and take 15 percent of any damages. If Hardingham lost, Court House was found to be liable.
If Court House had no interest, this wouldn't have happened. A third-party funding a legal battle isn't ordered to pay costs if a family member provides financial support, or if an entity funding the fight is to help facilitate the course of justice
Court House tried to argue that it was partial funding, and that ordering it to pay would penalize it for assisting impecunious applicants. Judge Thawley isn't sure.
The point is that Court House decided to fund the litigation in order to make money. The Court House is trying to make money from the litigation. It had a large amount of funding.
The Court House claims to have promoted access to justice, but Judge Thawley doesn't think it's true.
I don't think Courts House's activities were motivated by access to justice.
litigation funding is a common commercial activity. If the funded litigation is unsuccessful, the funder might have to pay the successful parties' costs.
Whether or not it has agreed to indemnify the applicants, that risk arises. The court house decided to give 15 percent of the damages to the principal proceedings.
If the case wasn't successful, Court House would have to pay REA/RP Data's costs.
The outcome might have gone the other way if Court House had funded the appeals process.
The costs are not known at this time. It will not go on public record if the decision is not heard. Here, you can read the court ruing.