5D Copyright and Fair Dealing : 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 interpretation and argument and, certainly, 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, for example, there is a fleeting or partial glimpse of some copyright work e.g. a snippet of a programme on a television screen in the background of shot; 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; or where there is some background music playing where you are filming e.g. in a lift or shop (and it has not been deliberately included e.g. added in the edit). Note: ‘incidental inclusion' is UK defence to copyright infringement. Thus where international sales of a programme 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 about whether the inclusion of a copyright work needs to be cleared, programme-makers should seek advice. In accordance with the general terms of Channel 4's and Five's production agreements, it is the responsibility of the producer to ensure that all necessary clearances have been obtained.