Who owns listing photos, floor plans and AI-made property content?

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Kooky

Builder of Shaka, the payment router that pays every agent their commission on closing date.

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Every Queensland sale campaign produces a small library of creative material: professional photographs, a floor plan, a written description, sometimes a twilight shot or a styled room. More and more of it now passes through artificial intelligence, from a description drafted by a language model to an image generated or extended by software. Once the home is sold, that material does not disappear. It stays on portals, feeds property data services, and is sometimes picked up again when the same home returns to market years later with a different agency.

The question of who owns all this is easy to skip while a campaign is running and hard to answer once something goes wrong. Copyright in Australia is set by a Commonwealth law, the Copyright Act 1968, so the rules are the same in Brisbane, Cairns or Toowoomba as anywhere else in the country. This guide sets out who owns what by default, how a long-running case over real estate photographs ended in the High Court, what agencies' licences generally need to cover, and why material made by AI raises a different question altogether: whether anyone owns it.

Copyright Act 1968; Allens summary of the High Court decision, February 2023; Attorney-General's Department copyright basics page.

What copyright protects in a listing

Copyright protects the way something is expressed, not the idea or the information behind it. The Attorney-General's Department describes it as a kind of property founded on a person's creative skill and labour, and notes that names and titles are usually not protected. Nothing has to be registered: the department's page explains that copyright exists by virtue of the Copyright Act, while other forms of intellectual property such as trade marks are the ones registered with IP Australia.

For a listing, three kinds of material matter most.

• Photographs. The Act defines an "artistic work" to include a photograph, "whether the work is of artistic quality or not". A quick phone snap of a laundry is protected in the same way as a carefully lit hero image.
• Floor plans and site plans. The same definition covers a drawing, and the Act says a drawing includes "a diagram, map, chart or plan". A floor plan drawn for a campaign is therefore an artistic work in its own right, separate from the house it shows.
• Written copy. An original listing description is a literary work. The headline, the feature list and the paragraph about the morning light are protected as text, although the facts they report (four bedrooms, a north-facing deck) are not.

Under section 36 of the Act, copyright is infringed by a person who, without the owner's licence, does in Australia any act comprised in the copyright, meaning the acts the Act reserves to the owner, or who authorises someone else to do so. That is why the question of who owns each item, and who has been given permission to use it, matters long after the campaign.

Who owns each piece by default

The starting point in section 35 of the Act is simple: the author of a work is the owner of the copyright in it. For a photograph, the Act defines the author as the person who took it. Two exceptions then change the picture.

The first concerns employees. When a work is made by an author in the course of employment under a contract of service, section 35(6) gives the copyright to the employer. A description written by a salaried member of an agency's marketing team, or a photograph taken by a photographer on the agency's payroll, belongs to the agency unless an agreement says otherwise.

The second is narrow and is often misunderstood. Section 35(5) gives the copyright to the person who commissions and pays for a photograph only when it is taken for "a private or domestic purpose", the classic example being wedding photographs. The Arts Law Centre of Australia gives the same example. Marketing a property for sale or lease is a commercial purpose, so the private and domestic rule does not apply to campaign photography. A contractor photographer engaged and paid by an agency or a vendor therefore usually keeps the copyright, and the agency uses the images under a licence.

Ownership can be moved, but only in a particular way. Section 196 of the Act says that an assignment of copyright, total or partial, "does not have effect unless it is in writing signed by or on behalf of the assignor". An invoice, a verbal understanding or the fact that an agency paid for the shoot does not transfer ownership. A vendor who pays for photography directly is in the same position: paying for the work is not the same as owning the copyright in it.

Licence or assignment: the two ways material changes hands

Most campaign material is not sold outright. It is licensed, which means the owner keeps the copyright and gives someone else permission to use it in certain ways. The difference matters because a licence can be limited by purpose, time, place or medium, while an assignment transfers the property itself.

The Act draws one more line. An exclusive licence, which lets the licensee use the work to the exclusion of everyone else including the owner, must be in writing and signed by or on behalf of the owner. The Arts Law Centre explains that other licences, sole or non-exclusive, do not need to be written, although it recommends putting them in writing anyway.

That gap is where disputes can start. A non-exclusive licence can be created by a phone call, an email exchange or a long pattern of dealings, and its limits are then whatever a court decides the parties agreed. The best-known Australian example concerns real estate photographs and floor plans.

The photographer's case that went to the High Court

The case began with a professional photographer and his company, which supplied photographs and floor plans to real estate agencies for sale and lease campaigns. According to the Federal Court's first judgment, delivered on 9 December 2019, the agencies commissioned the work informally and the arrangements were never written down. The question the court decided as a separate issue covered the works for 20 properties.

The agencies uploaded the images and plans to a national property portal. That portal's terms, as the trial judgment records, required agencies to grant it a broad, perpetual and irrevocable licence over uploaded content. The portal then supplied the material under a data licence to RP Data, which made it available to paying subscribers of its professional property data product. The photographer argued that his licence to the agencies covered only the marketing campaign and ended once the property was sold or leased, so the later use by the data company infringed his copyright.

The Full Federal Court's decision of 18 August 2021 records the photographer's argument that the licence came to an end on completion of the sale or lease, and one of its judges was not satisfied that a broader term should be implied, describing the licence claimed by the other side as perpetual and irrevocable. The High Court then granted special leave, and its decision is reported as [2022] HCA 39.

According to a February 2023 summary by the law firm Allens, all five High Court judges agreed on the outcome. The informal, unwritten licence was not limited to the specific marketing campaign: the agencies could accept the portal's standard terms, which allowed the material to be used indefinitely. Allens notes that the Court gave weight to the fact that most Australian agencies market properties through such websites. The judges took different routes to that result, with differing views on how unstated terms in an informal contract are identified, but none of them found for the photographer.

What the decision means for each party

The case did not decide that portals own listing photographs, or that photographers lose their copyright once images are uploaded. The photographer remained the owner. What the courts examined was the scope of the permission he had given, and the High Court read that permission, in the circumstances of those informal dealings, as wide enough to cover the portal's terms.

For photographers and floor plan drafters, the lessons Allens draws are practical: check whether informal arrangements are clear, document key terms in a formal contract, and consider whether one's own conduct would objectively be seen as agreeing to a term. Supplying work to agencies that are known to publish on portals with broad standard terms can be read as accepting that use. A written licence is the way to set a different limit.

For agencies, the decision supports the common practice of uploading campaign material to portals, but it rests on the facts of one set of informal dealings. An agency that relies on a supplier's material still depends on the licence that supplier actually gave. If a photographer's written terms limit use to one campaign or exclude sub-licensing, those terms are the starting point, not the High Court's reading of an informal arrangement.

For vendors, the case is a reminder that paying for a campaign does not usually buy the photographs. Unless something is signed, the vendor generally has no right of their own to take the images and reuse them.

The photographer kept his copyright. What he lost was the argument about how far an unwritten permission reached.

Reuse when a home comes back to market

The case concerned a portal and a data company, not a second agency. A common practical question is different: when a home is listed again years later, can a new agency simply use the photographs or the floor plan from the earlier campaign?

The Act gives the general answer. Doing any act comprised in the copyright without the licence of its owner is an infringement under section 36. So the question is always whether the new agency holds a licence from the owner of each image and plan. A licence the photographer gave an earlier agency for its campaign does not automatically pass to a different agency for a new one, unless its terms say so. Downloading images from an old listing or a data service and reusing them for a fresh campaign carries that risk.

The same applies inside an agency. When a salesperson moves to another agency, material owned by the previous employer under the employment rule stays with that employer. Descriptions, templates and photographs created in the course of the old job are the old agency's copyright, and taking them along without permission is a separate issue from any rule about client lists.

There are clean ways to deal with this, each depending on the facts: a new licence from the original photographer or drafter, a fresh shoot, or a written assignment in the earlier agreement that allowed reuse. Which arrangement suits a particular home is a matter for the people involved and their own advisers.

What an agency licence generally covers

There is no single standard licence for real estate photography, and terms vary between suppliers. What follows describes the matters a written licence can address, drawn from the issues raised in the High Court case and in the Arts Law Centre's information sheets. It is a description, not a template.

The last row deserves a word. Creators have moral rights that sit beside copyright and stay with them even when the copyright is sold. The Arts Law Centre lists three: the right to be named as the author, the right not to have authorship falsely attributed, and the right of integrity, which protects against derogatory treatment of the work, such as distorting or materially altering it in a way that harms the creator's honour or reputation. Its information sheet explains that a creator can consent in writing to specific acts that would otherwise infringe these rights, and that a defence of reasonableness applies to attribution and integrity claims, judged by factors such as the nature of the work, its purpose and industry practice. Heavy editing of a photographer's image, including with AI tools, is one place where these rights can come into play, and a written licence can say what changes are allowed.

AI-generated images and text: does anyone own them?

Everything above assumes a human author. Material produced by AI raises a more basic question, because Australian copyright is built around human authorship.

The clearest statement in an Australian court came before generative AI, in a case about telephone directories. In its December 2010 decision on the White Pages and Yellow Pages directories, the Full Federal Court upheld a finding that copyright did not subsist in directories produced largely by automated computer processes. The judgment records that copyright in a literary work requires the work to originate from an individual author or authors, that a person who merely sets mechanical processes in motion is not the author of the result, and that substantial labour and expense alone do not make a work original. The trial judge had found the directories were "computer generated" rather than the result of human authorship.

The Act's own structure points the same way. For an unpublished work, section 32 makes copyright depend on its author being a "qualified person", which it defines as an Australian citizen or a person resident in Australia. An AI system is neither.

How this applies to a listing depends on how much a person contributed.

• A description written by a person with some help from AI, then rewritten, cut and shaped by that person, is likely to have a human author for the parts that person wrote and arranged.
• A description generated in full from a short prompt and published as it came out is much harder to attribute to a human author, and may not be protected at all.
• A photograph taken by a photographer and then edited with AI tools still starts from a human-made work. The Arts Law Centre's information sheet on AI and copyright, last updated in June 2024, says editing a human-made image with an AI tool probably meets the threshold for protection.
• An image generated entirely by software, such as a fully synthetic interior or exterior, has no photographer, and its protection is uncertain.

The Arts Law Centre states the position carefully: it is not clear that works created with the help of AI will be protected by copyright, works with little human input may go unprotected, and AI tools have no legal status of their own and cannot own copyright. Whether choosing prompts, or selecting and editing among outputs, is enough human contribution has not been settled by an Australian court.

Why unprotected material still matters

If a fully AI-generated listing image or description has no copyright owner, the practical effect cuts both ways. An agency that publishes it may have nothing to enforce if a competitor or a scraping site copies it. A rival who reuses it may face no copyright claim, though other laws can still apply to how it is used.

Unprotected does not mean free of risk. An AI tool can produce output that closely resembles existing work, and the provider terms quoted above note that outputs may not be unique. If an AI-generated floor plan or image reproduces a substantial part of someone else's protected work, the person who publishes it can still be infringing that other work. And the separate rules on how AI-edited and AI-written marketing must represent a property apply whatever the copyright position.

There is also a record-keeping point. Because protection depends on human contribution, an agency or supplier that wants to rely on copyright in AI-assisted material is in a better position if it can show what people actually did: the drafts written, the edits made, the images selected and changed. That is a matter of evidence, not a formal requirement.

Where federal policy stands on AI and copyright

The national debate on AI and copyright has focused on a different issue: whether AI companies may train their models on Australian creative works without permission. The Attorney-General's Department set up a copyright and AI reference group, which its copyright page says first met on 22 February 2024.

The ABC reported on 27 October 2025 that the government had ruled out a text and data mining exception, which would have allowed AI training on copyrighted works without a licence. On 15 September 2026 the ABC reported, from confidential departmental slides, that the government was consulting rights holders on two options that would let copyright owners opt out of AI training, with different arrangements for payment. A spokesperson for the Attorney-General, Michelle Rowland, told the ABC the government was consulting creators, media organisations and AI companies on options for control and fair compensation.

None of that reporting deals with whether the output of an AI system is protected by copyright, and no change to the human authorship position has been announced. For listing material, the Act and the case law described above remain the reference point. Agencies, photographers and drafters who use AI tools in their work are dealing with settled rules on ownership and licences on one side, and an open question on AI authorship on the other.

Questions to settle before a campaign starts

Copyright problems in real estate marketing rarely come from bad faith. They come from assumptions that were never written down, made by people who were busy selling a home. A few questions, asked early, cover most of them.

1. Who will own each piece of material: the photographer, the drafter, the agency, or someone else by written assignment?
2. What does the licence allow: this campaign only, the property for future campaigns, portals and data services, other agencies?
3. Which material, if any, was generated in full by AI, and has anyone added enough of their own work to it to claim authorship?
4. What edits to photographs are permitted, and how will the photographer be credited?
5. If the property returns to market, how will the next campaign obtain the images and plans it wants to use?

The answers depend on each agreement and each set of facts, and anyone facing a dispute over listing material will need advice on their own position. What the law and the High Court have made clear is that the default rules, and the reading of an informal arrangement, may not match what anyone assumed at the time.

Kooky, from Shaka

Kooky edits Queensland Estate and builds Shaka, the payment router he made for Queensland property professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

About Kooky and Shaka →