Copyright FAQs
Incidental Inclusion and Defences to Copyright Infringement

When filming or recording live events, the issue arises as to whether background musical works or sound recordings or films or even photographs and paintings are an infringement of copyright in that material. Does the producer of the work need to stop recording or move the location because the material would otherwise be recorded? The Copyright, Designs and Patents Act 1988 (UK) has envisaged these events.

The Defence

Section 31 deals inclusion of copyright material in the manner described above. Where materials is incorporated into an artistic work, sound recording, film or broadcast and its inclusion may be said to be incidental, and copyright is not infringed.

The section also carries through the defence and allows the producer of the new work to exploit their new copyright work without fear of sustainable allegations of copyright infringement.

The key to addressing the question though is whether or not the work, that would otherwise be infringed was deliberately copied. This will be determined by reference to the circumstances of the inclusion. For instance, if a journalist is recording an interview for television in or around a concert venue, and song that is protected by the performance rights is being played and may be picked up by the microphone, it is arguable that the inclusion of that song in the interview was incidental rather than deliberate. On the other hand, if the subject matter of the interview has nothing to do with the song or the event taking place, this may be persuasive in determining that there is no temporal connection between the interview and the incidental recording of the song, such that the song was deliberately incorporated.