Incidental Inclusion

Copyright is not infringed by the 'incidental inclusion' of a copyright work in a film or sound recording. However, what is 'incidental' is open to argument and, if a work has been deliberately incorporated into a programme, it is likely to be difficult to argue that its inclusion is incidental. Note: in the case of musical works specifically, if the work has been deliberately included, then the Act states that inclusion of the work should not be regarded as incidental.

The incidental inclusion exception is likely to be helpful in situations where there is a fleeting or partial glimpse of some copyright work within a programme, for example a quick camera pan across a poster on a wall or a bill board on the street; a brief or partial shot of a magazine cover, for example in a doctors waiting room where filming is taking place; a snippet of a programme on a television screen in the background; or where there is some background music playing where you are filming, perhaps in a lift or shop (and it has not been deliberately added in the edit).

Note: incidental inclusion is a UK defence to copyright infringement. Accordingly, where international sales are anticipated, consideration should be given as to whether works deemed incidental for UK transmission, need to be cleared for foreign jurisdictions.

If in doubt, programme-makers should seek advice.