Section 31(1) of CPDA in the UK provides an exception for copyright infringement when a copyright work is incidentally included in the work of another. This exception is necessary for photographers, film makers, painters, and the like, when creating works that would incidentally show other copyright works. Without this exception it would be very difficult to, for example, prepare a film as it would necessary to avoid the chance for the inclusion of copyright works.
The meaning of “incidental” was explored in a number of cases such as IPC Magazine Ltd v MGN Ltd [1998] where a commercial for a new tabloid attachment showed a cover of another magazine. The court said that “incidental” means “casual, inessential, subordinate, or merely background”, which was not the case here, leading the inclusion not to be considered incidental and therefore infringing.
The court also held that the term “incidental” does not include the situation where the work is integral to the work. In the case of Football Association Premier League Ltd v Panini UK [2004] the defendant distributed cards with images of football players showing their club strips and badges of their football clubs. The court in this case rejected the defence of incidental inclusion stating that it was artificial to test the “incidentality” of the inclusion by artistic consideration where the purpose of the inclusion was commercial as the cards would not have been of the same commercial value had the players not been pictured in their club strips.
For the music and spoken or sung words, the inclusion will not be incidental it was deliberate. However, the same requirement for the inclusion not to be deliberate does not exist for other works.
This exception has a small scope, but is necessary in order to allow others to create without fear of copyright infringement of all works around us.